This revision petition under section 115, C. P. C. is directed against a judgment and decree passed by learned Civil Judge First Class, Mirpur Khas dated 30-9-1970 in Suit No, 87 of 1969 for possession under section 9 of Specific. Relief Act, 1877, regarding a house bearing Custodian No, A/36/VI, Bhansinghabad, Mirpurkhas.
2. The petitioner's case is that he is a displaced person, and house No, A/36/VI, Bhansinghabad was first provisionally transferred to him in 1960 and a Final Transfer Deed has been issued to him by the Settlement Authorities on 4-10-1968. As, respondent Yousuf was in occupation of the house, he at the time of provisional transfer of the house became petitioner's statutory tenant, and a notice (Exh. 21) under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, demanding the rent was duly served on him on 30-4-1966 but to no avail, as in his reply dated 12- 5-1966 (Exh. 22) respondent made the short excuse that he is in occupation of house No, A/36/IV and not A/36/VI, therefore, denied any liability. Not being satisfied with the evasive reply of respondent-petitioner applied to Deputy Settlement Commissioner, Mirpurkhas, for clarification and was informed per his letter No, SC. MPS. 3709, dated 17-10-1964, that respondent Muhammad Yousuf was in occupation of house No, A/36/VI which has been transferred to the petitioner.
3. The petitioner, on 22-4-1969, moved an application (Exh. 35) before Martial Law Authorities at Mirpurkhas, praying for recovery of arrears of rent as well as possession of the house in dispute from respondent Muhammad Yousuf. This application was entertained and Superintendent of Police, Tharparkar was ordered for necessary action and production of the parties. Superintendent of Police, Tharparkar, ordered S. H. 0. Town for necessary action and production of parties before the Martial Law Authorities.
4. It is apparent from record of trial Court before me, and the endorsements made thereon of the relevant authorities, that in consequence of order of Martial Law Authorities, and the sub sequent order of Superintendent of Police, the subordinate Police Officers on 25-4-1969 and 26-4-1969, recorded statements of the parties and of witnesses Noor Muhammad and Hussain, who stated that house has been allotted to petitioner, who demanded possession and arrears of rent from respondent in their presence but was refused and instead he was ready to pick up quarrel with petitioner.
5. The respondent in his statement admits that petitioner was allotted house No, A/36/VI by Settlement Authorities in a claim but denies that he is in possession of the same house but in another house No, A/36/IV.
6. Thereafter, a report of Police Officers after enquiries, was prepared and submitted before Martial Law Authorities, and also the parties were produced on 19-5-1969. In the report it is stated that respondent is in illegal possession of petitioner's house which has been duly transferred to him.
There is an endorsement of Captain Sadat to the effect, that "Yousuf (opponent) agrees to hand over possession to Abdul Wahid by tomorrow morning". There is further endorsement in red pencil that "parties settled, case decided". Over and above there is seal of Headquarters Martial Law, Tharparkar as well as Police Station, Tharparkar and also endorsement of Superintendent of Police (Exh. 40).
7. Then, there is a compromise agreement signed by both parties, duly attested by Mukhtiarkar, with seal of Police Station Mirpurkhas and endorsement of S. H. 0. Town Police Station, dated 19-5- 1969. The compromise of the parties is given in verbatim as under (Exh. 41) {{URDU TEXT}}
8. The recording of above details became necessary because the main question for determination before me, is whether the respondent is "dispossessed without his consent of the house, otherwise than in due process of law" as claimed by him in his suit under section 9 of Specific Relief Act, 1877.
9. The respondent, filed a suit on 19-7-1969 in the Court of Civil Judge, Mirpurkhas, for possession of the house, alleging that on 3-5-1969, he was forcibly dispossessed by petitioner with aid of Police and also, police obtained his thumb-impression on a paper by force, he prayed for being put into possession.
10. The petitioner in his written statement denied the allegation of forcible dispossession and pleaded that possession was given willingly and with consent by the respondent in pursuance of his agreement and orders thereon passed by Martial Law Authorities, it was further objected that in view of Presidential Order No, 3 dated 30-6-1969 viz. Jurisdiction (Removal of Doubts) Order, 1969, the trial Court has no jurisdiction to proceed with the suit.
11.The learned Civil Judge, however framed issues, recorded statement of parties and two witnesses of respondent, and gave a judgment in favour of respondent against the petitioner.
Section 9 of Specific Relief Act, 1877, being very relevant is as under : "9. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
No suit under this section shall be brought against the Central Government or any Provincial Government.
No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed,"
12. The learned trial Judge, in a rather lengthy judgment took pains to repel the weight of existing documentary evidence in favour of petitioner on record (Exhs. 35 to 42) by oral evidence of respondent and his two witnesses Noor Bhai and Ahmed, the latter admittedly is his caste-fellow.
The trial Court did not believe the evidence of Mr. Muhammad Bachhal, Mukhtiarkar, who was then working as Liaison Officer with local Martial Law Authorities. He being a responsible Government Officer categorically supported the statement of petitioner and verified the endorsements on Exhs.
35 and 40, made by Lt. Tanweer Pervaiz Butt, Second-in-command, Mirpurkhas and by Captain Sa'adat Hussain, with whose signature he claimed to be conversant. He went further to state that the agreement Exh. 41 was attested by him in presence of Lt. Butt on 16-5-1969. In my opinion, the learned trial Judge should have, given more credence to the statement of responsible Government Servant, the Mukhtiarkar, than to the two stray witnesses produced by respondent regarding his forcible dispossession.
13. The learned Judge, clearly erred in law by putting the onus on petitioner to prove that he obtained possession by peaceful manners and with consent of respondent, on the contrary it is settled legal position that it is for the petitioner to prove, his previous possession as well as wrongful dispossession, therefore, there was no necessity for petitioner to produce any witness, more so, in presence of existing overwhelming documentary evidence in his favour. The anxiety of learned Civil Judge that-- "it is not understandable that how this compromise applica-tion came in the hands of S. H. 0. Town Police Mirpurkhas and why he had sent the same to S. P., Mirpurkhas for further orders and how the paper was attached with the papers of Martial Law Authorities of the application given by defendant to them. In the ordinary course if the parties had given this compromise application before Martial Law Authorities duly attested by the Mukhtiarkar as alleged by the learned Mukhtiarkar there should have been some endorsement of the Martial Law Authority on it and there was no occasion for sending the same to S. H. 0. Town P. S. Looking to the facts that the stamp of the police station has been put first and writing over it has been made afterwards and much space being left between the signatures of the parties and the contents of the alleged compromise application, I come to the conclusion that the signature of the plaintiff has been obtained by the Police first and subsequently the writing has been made over it," seems to me not well founded because in early 1969, when Martial Law was in full operation, the Police had to operate as an aiding agency to it, therefore, every order had to be executed through the Police Authorities, that is why each document is sealed and signed by Police Authorities, and these documents had to be submitted to Martial Law Authorities to show how far the orders have been carried out. And this system was not peculiar to Khairpur Division, it was in force all over the country. The Police force had to standby and execute order of the Martial Law Authorities. It is hardly to be believed that the local police would attempt to defy the Martial Law Authorities in a time of grave emergency by concocting documents to favour a poor peon.
14. Once it is accepted that the parties did appear before Martial Law Authorities, and the relevant endorsements are made by them, there seems to be apparently no illegality if police executed their orders which at that time, generally speaking were free from let and hindrances of jurisdiction of civil Courts. Therefore, the possession, given to the petitioner after written agreement by respondent under orders of Martial Law Authorities in May 1969, seems to be quite within law, assuming although not proved, this all happened in presence of a police constable.
15.Let me be clear that the police has no power under law whatsoever, to interfere with possessory rights of citizens to their immovable property, to which Courts of law are the proper forum, and the slightest interference by police renders the entire proceedings illegal and void and this principle has firm foundation in our judicial system.
16.Apart from the above, the learned trial Judge was not himself on sure grounds regarding circumstances in which respondent was dispossessed, particularly when he observed : "There is possibility that the plaintiff might have agreed to hand over the possession of the disputed house before the Martial Law Authorities but subsequently changed his idea," now subsequent change of mind, does not give any sanctity to respondent's right to repossession of the house. Once consent is given, and that also before a Court of Law, that previously, respondent cannot change his mind according to his whims, more so, when, there is no proof on record that he has established any legal right to the house in dispute. It is admitted by him that property does not belong to him as no P. T. D. has been produced by him. Since in 1966 and perhaps earlier when rent was demanded from him by petitioner his excuse was that he is occupying house No, A/36/IV, and not A/36/VI, now this excuse of his has been belied by letter of Settlement Authority to petitioner referred earlier.
17. It is, therefore, evident that respondent has been in illegal occupation of petitioner's legally allotted house since 1960, without any payment of rent to him, he cannot be allowed to take shelter in legal technicalities to defeat the intent and purpose of the law, and he is expected to come with clean hands to expect equitable relief from Courts. The learned counsel for petitioner cited Nawabzada Muhammad Umar Khan v. Muhammad Asif , Muhammad All v. Masha Jan , Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan and Abdul Majid Shaida v. Mst. Noor Jehan , before me, but they are not relevant and has no bearing to the point in dispute before me.
18.As a result of the foregoing, this petition for revision must succeed with costs and the judgment and decree of learned Civil Judge, Mirpurkhas dated 30-9-1970 is hereby set aside. PLD 1964 Pesh. 157 PLD 1961 Pesh. 29 PLD 1960 Lail. 181 PLD 1967 SC 221