On 14.5.89 the petitioners filed a suit against Respondents No, 1 and 2. In the plaint, it was stated that the petitioners. are continuing in possession of the: suit land mentioned in the plaint since 1995. Respondent No, 1 has taken forcible possession on 4.5.89 and constructed a boundary wall and Khothari. He claims to be vendee from Respondent No, 2, who has never been in possession.
With these averments decree for possession under Section 9 of the Specific Relief Act, 1877 was prayed for. The Respondent No, 1 in his written statement took the plea that the land was sold to him by Respondent No, 2 who had been in possession for 20 years and the same possession was delivered to him. Whereas the petitioners have never been in possession. The same was plea of the Respondent No, 2, who further stated that in the revenue record they got themselves recorded in possession since 1975 illegally. Following issues were framed by the learned trial Court:--
1. Whether the suit has been filed with malafide intention, if so, its effect? OPD.
2. Whether the plaintiffs are estopped by their words and conduct to institute the present suit based on preliminary Objection No, 2 ? OPD.
3. Whether the suit is bad for non-joinder of necessary parties? OPD
4. Whether the suit is barred by time ? OPD
5. Whether the Plaintiff No, 3 is not in a position to file this suit based on preliminary Objection No, 6, if so, its effect ? OPD
6. Whether the plaintiffs being the owner of the suit property are entitled to the decree claimed for in the main suit? OPP
7. Relief.
Evidence of the parties was recorded. Learned trial Court decreed the suit on 7.1.96. The revision filed by respondents was allowed by a learned Additional District Judge, Jhelum, on 19.6.2000, who dismissed the suit of the petitioners.
2. Learned counsel for the petitioners contends that the learned Additional District Judge has misread the evidence on record and has further misconstrued the law on the subject and as such, the impugned judgment passed by him is without lawful authority. Learned counsel for the contesting respondents, on the other hand, supports, the impugned judgments and decrees.
According to him only suit for partition was competent.
3. I have gone through the copies of the record with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleading of the parties. The suit land admittedly comprise in Khasra No, 262 min and 262 measuring 1 kanal 4 marlas. The description with reference to boundaries wall has not been questioned. Ex.P4 is register haqdaran zamin for the year 1986-87. According to this document Shaukat Sultan Petitioner No, 1 is recorded in possession alongwith Mst. Balqees Petitioner No, 2 in Khasra No, 262 min measuring 12 marlas while Kalsoom Begum Petitioner No, 3 is recorded to be in possession of 262 min measuring 12 marlas. Habib-ur-Rehman Respondent No, 2 and consequently Muhammad Alam Respondent No, 1 are not recorded in possession of any portion of the land. Ex.P2 is the Khasra Girdawri from Kharif 1983 to Ribi 1987 while Ex.P3 is Khasra Girdawri from Kharif 1987 to Rabi 1989 Nazar Muhammad and Kalsoom Begum are recorded as in possession and later Shakuat Sultan and Balqees Begum Petitioners No, 1 and 2 and Kasloom Begum Petitioner No, 3 are recorded in possession. The said Nazar Muhammad had transferred the land to Petitioners No, 1 and 2 vide registered sale deed dated 2.12.85 Ex.P1.
4. The petitioners examined Mian Zahoor, Advocate, Jhelum as PW-1 while Shaukat Sultan petitioner appeared as PW-2. On the other hand, Muhammad Anwar was produced as DW-1 and he admitted without any demur that Mirza Habib-ur-Rehman had never been in possession of the suit land.
5. Now coming to the impugned judgment of the learned Additional District Judge. Although he has noted said pieces of evidence but has proceeded to discard the same for the reasons that according to him one co-sharer entered into possession then he cannot be dispossessed even if he has taken possession forcibly. I am afraid, the learned Additional District Judge has acted in oblivion of law. It is well settled proposition that where co-sharer in possession is dispossessed by another co-sharer then he has two options. He can either wait and file suit for partition or he can file a suit under Section 9 of the Specific Act, 1877. Reference be made to the case of Muhammad Shafi, etc. v. Collector, etc. (NLR 1980 AC 243) The petitioners have proved on record they were in possession when they were dispossessed on 4.5.89. It is not even the case of the respondents that the possession was taken over with consent of the petitioners. The suit was filed after 10 days i,e, 14.5.89. All the ingredients of Section 9 having been established, the learned trial Court had lawfully decreed the suit.
6. The writ petition is accordingly allowed. The impugned judgment and decree of the learned Additional District Judge, Jhelum, dated 19.6.2000 is declared to be without lawful authority and is set aside. The result would be that the decree passed by the learned trial Court on 7.1.96 decreeing the suit of the petitioners against the respondents shall stand restored. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.