' SYED SAJJAD HASSAN SHAH, J.--- Zahir Hussain and four others, the petitioners by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan called in question the judgment and decree dated 26-6-2009 passed by the learned Additional District Judge-III, Swabi, whereby, the appeal filed against the judgment and decree dated 28-10-2009 passed by the learned Civil Judge-VII, Swabi was dismissed.
2. The brief facts germane for the disposal of the instant petition are that the respondents-plaintiffs (hereinafter to be referred as respondents) filed a suit seeking the restoration of possession under section 9 of the Specific Relief Act, 1877, and prayed for the recovery of mesne profits in respect of the property fully detailed in the heading of the plaint.
3. The suit was contested by the petitioners-defendants (hereinafter to be referred as petitioners) by filing their written statements. The learned trial Court framed issues arising out of the divergent pleas of the parties raised in their respective pleadings. The respondents have produced their entire evidence, whereas, petitioners have been proceeded under Order XVII, Rule 3, C.P.C. And their defence was struck off on 13-5-2009. After recording of above evidence and hearing arguments addressed by the learned counsel for the parties, the learned trial Court decreed the suit of the respondents. Feeling aggrieved of the impugned judgment and decree, the petitioners filed an appeal, which also met the same fate, hence, the present petition is filed for setting aside the concurrent judgments and decrees of the Courts below and prayed for the dismissal of the suit filed by the respondents.
4. The learned counsel appearing on behalf of the petitioners contended that the learned Courts below have failed to attend the important aspect of the case that the respondents have not proved that their suit is filed within the period of limitation. Because the said ground agitated in the written statement, but no issue has been framed, however, in this regard, the learned trial Court returned its findings but in cursory and slipshod manner. He further contended that the respondents have also sought the decree for issuing the perpetual injunction and mesne profit together with the relief of restoration of possession under section 9 of the Act ibid. According to the learned counsel, the suit of the respondents was also not maintainable on account of defect of misjoinder of causes of action. He argued that except the statement of two interested and related witnesses, no material available on record to warrant the impugned judgments and decrees in favour of the respondents. He further contended that this is the case of sheer misreading and non- reading of evidence and both the learned Courts below have bypassed the provisions of law, thus, committed material illegality and irregularity while exercising jurisdiction in the matter, because it was the legal duty of the learned Courts below to attend the facts of case, the available evidence and the law applicable thereto, but the learned Courts below passed the impugned judgments and decrees in haphazard manner, which is not sustainable under the law and liable to be set aside.
5. As against that, the learned counsel for the respondents supported the judgments and decrees passed by the learned Courts below and contended that there is no material illegality or irregularity committed by the learned Courts below and the impugned judgments and decrees passed in accordance with law and not suffering from any jurisdictional error, which does not require any interference by this Court.
6. Arguments of the learned counsel for the parties considered and record carefully perused.
7. A perusal of the record reveals that a bulk of documentary and oral evidence available on the record, but both the learned Courts below have not adverted to, while deciding the lis pending before them. Had the entire documentary and oral evidence been considered in its letter and spirit, it might have impact on ultimate decision of the case. In this regard, it is pertinent to mention here that while deciding the suit under section 9 of the Specific Relief Act, 1877, the following prerequisites must be considered for arriving at lawful conclusion:---
(i) That the person suing must have been dispossessed;
(ii) That such dispossession must be of immovable property;
(iii) That such dispossession should be without consent and should be otherwise than in due course of law;
(iv) That the suit is to be brought within a period of six months from the date of dispossession.
8. In order to succeed in the suit filed under section 9 of Act ibid, A the plaintiff must prove that he was in possession of the suit property and he has been dispossessed by the defendant otherwise than in due course of law, which dispossession took place within six months of filing of the suit. No question of title can be raised or looked into in a case filed under section .9 of the Act ibid. To substantiate the above-mentioned aspects of the case, we have scanned the record of the case with care and caution. ,
9. The respondents in Para-1 of their plaint stated that today is the third day of their forcible dispossession by the petitioners from the suit property measuring 7 kanals, 5 marlas. In this regard, it is pertinent to refer here the record of rights pertaining to the year 1994-95 (Exh.P.W.-2/1) in respect of suit Khasra i,e, 2397 measuring 7 kanals, and 5 marlas, a number of co-owners recorded in the ownership column and one Abdul Aziz Khan is shown in its possession, however, as per the entries of Mutation No,54 the suit Khasra has been partitioned. Resultantly, Khasra No, 2397/1 measuring 2 kanals, 5 marlas allotted to Asadullah Jan, etc. The owners, Khasra No,2397/2 measuring 5 kanals allotted to Abdul Aziz Khan as his share. Thereafter, the same entries are repeated in the Revenue Record, produced as Exh.ADW-1/3 to Ex . ADW-1/4 .
10. As it is evident from the above referred Revenue Record that the suit Khasra number has been partitioned as mentioned above. Despite its partition, the respondents preferred their claim over the entire Khasra number, to which they have no legal right as the possession even over 5 kanals of land is no where recorded in the Revenue Record in the name of the respondents.
11: The pivotal question involved in the instant case is that as to whether the respondents have proved their possession and thereafter dispossession from the suit property. In this connection, the respondents in Para-1 of the plaint stated that today is the third day of their dispossession from the suit property. In support, whereof, P.W.-1 Mujeeb-ur-Rehman, FC, P.S. Swabi was examined, who brought on record Mad No,26, dated 14-10-1997 (Exh.P.W.-1/1) 17 Roznamcha maintained in the P.S. During the course of cross-examination, in reply to a question that any action initiated in respect of the report ibid, he expressed his ignorance. Even otherwise nothing brought on record to show that according to the allegations levelled in the said report, the action has been taken against the persons charged in the said report, which speaks volume about the matter in issue.
12. A careful perusal of the above referred material transpires that the property mentioned therein is stated to be 8 kanals and it is alleged that Zahir Hussain Shah and two others intended to take over the possession of the suit property. It is not expressly and in unequivocal words stated in the report that the respondents are in possession of the suit property and they have been forcibly dispossessed by the petitioners. Furthermore, the lodger of the report Nazir Muhammad Khan did not appear before the Court in order to testify that he has reported the occurrence, thus, to stand the test of cross-examination regarding the matters mentioned therein. In absence, whereof, the respondents have failed to prove the same in accordance with requirement prescribed under the law, which document is not of worth consideration. In this regard, the reference is made of Khasra Girdawari (Exh.P.W.-2/2) produced by the respondents, wherein, the claim of the respondents is totally appeared to have negated. Here it is not out of place to mention that the respondents would suffer the consequences arising out of the document which they have produced. It is mentioned in Khasra Girdawari for the year Rabbi 1998 that one Hawaldar Quresh Khan son B of Zardad is in possession of the suit Khasra number on payment of half of the produce on behalf of Zahir Hussain and others. Similarly, entries made in rest of the columns of said Khasra Girdawari till Rabbi 2000, .Which do not support the case of respondents as the property is shown in possession of the tenant, who is cultivating on behalf of the petitioners.
13. Amongst the witnesses examined on behalf of the respondents, one Miskeen (P.W.-4) who is father-in-law of the respondents, thus, interested and partisan witness. He did not depose about the period of alleged dispossession of respondents from the suit property. His mere allegation is that the suit property remained in possession of the respondents for three years, whereafter, Zahir Hussain and others took over the possession of the suit property. This statement is not of any avail to the case of the respondents, as he has not disclosed the exact date and month of their dispossession, however, his ambiguous statement would not absolve the respondents from their liability to discharge the burden of proof.
14. Sher Muhammad, was examined as P.W.-4, who testified about their forceful dispossession by the petitioners with reference to Roznamcha Waqiyati (Exh.P.W.-1/2) without specifying any date or period of their dispossession from the suit property. Besides, the witness namely Faisal Aziz son of Abdul Aziz Khan was examined as P.W.-4, the case of the respondents has not been supported by the deposition of this witness, as the real owner of the property, who allegedly delivered the possession to the respondents had to appear in support of their case. The examination of his son.
Namely Faisal Aziz, attorney is not sufficient proof of the facts for the reason that Abdul Aziz Khan is alive but he did not opt to appear as witness on behalf of the respondents to support the delivery of possession to them. However, his statement would also not worth-consideration because even if he would be examined, his statement would not be beneficial to the case of the respondents, because he has been allegedly transferred the suit property through oral sale agreement, thus, parted with the interest in the suit property and his statement would not be admissible and considered as a valid piece of evidence in favour of the respondents.
15. The necessary corollary of the above resume of the facts is that both the possession and dispossession of the respondents is proved by means of independent, disinterested and impartial amount of evidence, rather this is the case of no evidence. Moreso, the date of possession and dispossession is not mentioned in the plaint and also the refusal of the petitioners to restore the possession to the respondents, as such the period of limitation is not discernible from the averments made in the plaint. The documentary evidence also does not support the stance of the respondents. The above referred important aspect of the case overlooked by both the Courts below. As such, the respondents have not succeeded in proving their case against the petitioners in accordance with law.
16. It is not out of place to mention here that the limitation is one of D the essential prerequisites as prescribed under section 9 of the Act ibid. In the instant case, the plea of limitation raised in the written statement but the learned trial Court has not framed any issue, however, the respondents have produced all the available evidence in the light of their pleadings without feeling any difficulty while proceeding with the case. The learned trial Court has decided the question of limitation, which decision is neither in consonance with the requirements of law nor considered in the light of record of case, thus, the judgment and decree passed by the learned trial Court is violatary to the law and material on the record. It was imperative for the learned trial Court to give its reasoning, and justification in support of its findings, however, the learned trial Court has not considered the same. The question of limitation can be considered by the Court itself whether it is pleaded or not by the parties to the suit, because a waiver by Court of question of limitation is not permissible even where the period of limitation is prescribed by a Special or Local Law. Thus, a wrong decision on limitation will not debar the High Court for reversing the said decision as it is within its power and jurisdiction under section 115, C.P.C. To suo motu take-up for consideration the question of limitation, if the material available on record is sufficient to establish that the suit has been filed after the expiry of the limitation. Reliance placed on case titled The Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678).
' The scope of the revisional power of the High Court is subjected to the conditions where in case the jurisdiction exercised excessively, failure to exercise jurisdiction, illegal exercise of jurisdiction is nevertheless very vast and corresponds a remedy and in fact the jurisdiction can be exercised firstly, which is discretionary in nature may be invoked by the Court in suo motu and secondly, the Court may make such order in case it thinks fit."
17. In this regard, further relied on case titled Noor Muhammad v. Abdul Hamid (1984 CLC 23), wherein, it is observed that "However, plea of limitation can be allowed to be raised even at the revisional stage if on admitted facts, a case of limitation is made out".
18. Similarly in another case titled Umar v. Afridai and others (PLD 1954 Peshawar 96), wherein, it is held that "The question of limitation may be one of fact or of law; if former the Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general rule bound to raise and decide it, although not raised by the parties. Applying this principle to the case now before me, the question of limitation involved was a mixed question of law and fact. The lower Appellate Court in order to apply Article 120 of the Limitation Act, had to determine the date from which limitation had to start. He had to come to a definite finding as to whether the plaintiff was in possession of the property in suit or not."
19. It is also observed in case Wazir Ahmed through Legal Heirs v. Naseem-ur-Rehman through Legal Heirs (2002 MLD 645) that:- "In a suit brought under the abovementioned section 9 the plaintiff who has been dispossessed is entitled to succeed merely by proving that (1) he was in possession of the immovable property in suit; (2) that he had been dispossessed by the defendants; (3) that the dispossession was not in accordance with the law and (4) that the dispossession took place within six months of the filing of the suit, meaning thereby of the aforesaid provision of law has four ingredients which are as under:-
(i) The person suing must have been dispossessed; (ii). Such dispossession must be of immovable property;
(iii) The dispossession should be without his consent;
(iv) Dispossession should be otherwise than in due course of law.
20. In the same judgment, it is further observed in paragraph-10 regarding exercise of revisional power of High Court where the material illegality or irregularity committed by the trial Court, the Revisional Court has ample powers to reverse the findings of trial Court while exercising the powers under section 115, C.P.C. The observations are reproduced as under:--- "The learned Trial Court was erred in law to decree the suit as the petitioners failed to bring the case within parameters prescribed by Legislature in section 9 of the Specific Relief Act, therefore, the learned trial Court committed material irregularity, hence revisional Court was justified to reverse the findings of the learned trial Court in exercising of powers under section 115, C.P.C. It is' settled principle of law that question of law can be raised at any stage as per principle laid down by the Hon'ble Supreme Court in case "Haji Abdullah Khan and others v. Nisar Muhammad Khan and others" (PLD 1965 SC 690).
21. Likewise, reliance placed on another case titled "Kundo Mal and others v. Daulat Ram-Vidya Parkash, Firm (AIR 1940 Lahore 75), wherein, it is observed that: Further, there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves. Reference in this connection may be made to AIR 1933 Lah 404, 44 IC 890, AIR 1934 All.
386, AIR 1932 All. 108, 40 Mad. 701 and 54 All.
573."
22. Both the learned Courts below erred in law while not adverting to another aspect of the case which is of paramount importance because the instant suit is apparently filed under section 9 of the Act ibid, however, together with the relief of perpetual injunction and recovery of mesne profit.
The suit is not filed in its proper form because the Court under section 9 of the Act ibid can only adjudicate upon the claim of possession alone bereft of title, right or legal character of the claimant or mesne profit, the Court is not required to enter or adjudicate title, right or legal character of the person claiming possession under section 9 of the Act ibid. If a person is dispossessed illegally and without due process of law and he is interested to claim damages and mesne profit together with possession than he has to file the suit under section 8 of the Specific Relief Act, 1877. However, if a suit seeking the restoration of possession under section 9 of the Act ibid together with the above-mentioned relief, the Court while exercising power under Order VI, Rule 16, C.P.C. Strike out the pleadings, which are unnecessary and causes delay in fair trial or where it appears to the Court in terms of Order II, Rule 6, C.P.C. That any cause of action enjoined in one suit cannot be tried. In this regard, reliance placed on a case titled "Foujmal Manaji v. Bikhibai and another" (AIR 1937 Sind 161), wherein, it is observed that:- "Under this section a suit for possession and mesne profits will not lie nor can the Court pass a decree for mesne profits prior to the suit. Nor do we think an order for mesne profits during the pendency of the suit can be made under this section, nor do we think a receiver can be appointed. It is clear that this section provides a special and comparatively summary remedy for a person dispossessed without his consent, and the section relates only to possession."
23. In view of the above discussion, the judgments and decrees of both the learned Courts below are passed in sheer violation of law and material available on record, hence, committed gross illegality and irregularity while deciding the matter before them, therefore, we hereby accept this petition and set aside the judgments and decrees of the trial Court as well as the Appellate Court and the suit of the respondents is dismissed with costs throughout.