'ATTAULLAH KHAN, J.---Pir Muhammad Sabir Shah has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in which he has impugned the judgments and decrees passed by learned Senior Civil Judge, D.I. Khan dated 3Q-10-2004 and learned Additional District Judge, D.I. Khan dated 2-6-2006.
2. Learned counsel for both the parties heard and record on file perused. In the light of which our discussion is as under.
3. According to learned counsel for the petitioner, the findings of both the Courts below are arbitrary because no issue-wise findings have been given. It is further contended that both the Courts blow have not appreciated the evidence on record.
4. The stand of learned counsel for the opposite party is that the petitioner has failed to prove his title. According to him the respondents have proved its case by producing cogent evidence duly supported by the documents. He further argued that the petitioner has failed to point out any illegality or miscarriage of justice.
5. We have gone through the record as well as considered the arguments on behalf of both the parties.
6. This case has checkered history. The predecessor in interest of respondents Nos.1 to 3 Mst.
Hajiran Begum filed a suit against the petitioner for the recovery of possession of the disputed property, detailed in the heading of the plaint and also for the recovery of mesne profit of the property amounting to Rs,56,500. She has also prayed for the recovery of Rs,35,000 as damages caused to the garage etc.
7. The suit was contested by the defendants by filing their written statement and necessary issues were framed. After recording evidence the learned trial Court decreed the suit vide judgment and decree dated 30-10-2004 to the extent of relief Alif and Bey while dismissed the prayers contained in relief Jeem and Daal.
8. Against this judgment and decree, the aggrieved party filed a revision petition in the Court of District Judge, D.I. Khan, which was disposed of vide judgment and decree dated 2-6-2006. Having no other remedy, the petitioner has invoked the constitutional jurisdiction of this Court through writ petition in hand.
9. The record discloses that the disputed property was purchased by father of the plaintiff from Municipal Committee, DI Khan through a registered deed dated 22-4-1921 and subsequently be transferred half of the said property i.e. Four Kanal through gift registered deed on 28-2-1935 in favour of the plaintiff and her sister, namely, Zahra Bibi and his wife Mst. Merriam Bibi while the remaining was left in his ownership. After his death the same was devolved upon the legal heirs.
One portion of the suit property was rented out to one Haji Adam Khan Afridi on monthly rent and after expiry of agreement the same was delivered back.
10. Record reveals that on 15-9-1979 the disputed property was forcibly possessed by the defendant. During that period the defendant also demolished the garage located in the suit property. The defendant has taken the plea that he is tenant under the plaintiff in his written statement.
11. The most important issue between the parties is the ownership of the plaintiff. As stated above the plea taken by the petitioner in the written statement is that he is tenant of the suit property on the payment of rent on the basis of agreement. Record further discloses that the plaintiff's father has purchased the suit property through registered deed Exh.P.W1/1 from the M.C., DI Khan. The Assistant Commissioner, DI Khan issued a notice under the Removal of Encroachment Act for the vacation of the property to the plaintiff/respondent but the same notice was challenged in the Tribunal. The Tribunal gave verdict against respondent which was challenged in the writ petition and the same was accepted and the property was declared to be ownership of the plaintiff. It is also proved on record that Mutation No,191 was attested on 8-2-2003 in favour of the plaintiff.
Exh.PW1/4 is an agreement which shows that the suit property was rented to one Haji Adam Khan Afridi and after expiry contract/agreement the same was delivered back. So in this way the plaintiff ownership stands proved.
12. On the other hand, the plea taken by the defendant in the written statement is of tenancy. In this plea the ownership of plaintiff is admitted by him. The plaintiff has failed to prove his tenancy of the suit property. There is no agreement or contract between the parties regarding rent nor any oral evidence is produced by the petitioner in support of his plea. The evidence in this way has been correctly appreciated by the trial 'Court. The ownership of the plaintiff has been proved while plea of the defendant regarding tenancy of the suit property remained unproved. The impugned judgment of the trial Court show that all the issues have properly discussed and answered. The evidence produced in the trial Court by the plaintiff is confidence inspiring. The documents produced by the plaintiff have also been proved. As against this there is nothing in rebuttal. The well-settled principle in this regard is that the plaintiff must prove his case. He has succeeded to prove his case through oral as well as documentary evidence and has succeeded to discharge his liability and the burden has shifted to the defendant but he failed to shoulder that burden.
13. A legal preposition arises whether the respondents/plaintiffs could file a suit to seek remedy for possession. As discussed above, the suit of the plaintiff is based on ownership and subsequent dispossession by the defendant, therefore, under section 8 of the Specific Relief Act, the suit can proceed. Section 8 of the Specific Relief Act provides, "A person entitled to the possession of specific immoveable property may recover it in the manner prescribed by Code of Civil Procedure, 1908".
The word used in the said section includes such persons who are entitled to possession of specific immovable property and he could file proceedings for recovery of possession under section 8 of the Specific Relief Act. The same suit could be filed not only by a person who is holder of title to property but even by person, who was merely entitled to possession. So the plaintiff has rightly chosen the filing of the suit for recovery of possession. Because section 9 of the Specific Relief Act provides for summary suit to regain possession on the basis of wrongful dispossession excluding title while section 8 of the said Act a suit could be filed for possession on the basis of title and in such title assumes an important role in case.
14. The above discussion leads us to the conclusion that no illegality or irregularity has been committed either by trial Court or revisional Court, therefore, this writ petition is dismissed accordingly.