' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioner has challenged the judgment and decree dated 8-6-2007 passed by learned Additional District Judge whereby appeal filed by him was dismissed and judgment and decree dated 5-12-2006 passed by learned Civil Judge 1st Class whereby suit for possession filed by the respondents-plaintiffs was decreed.
2. Learned counsel for the petitioner argues that admittedly both the parties are joint owners in the Khata and the case of the plaintiff-respondent that he has taken the possession of the suit property in November, 1999 and the suit in hand for possession filed on 25-10-2001, is a suit filed under section 8 of the Specific Relief Act, 1877. When both the parties to the suit are joint owners even if one of the parties has been dispossessed, the other party cannot file the suit for possession under section 8 of the Specific Relief Act, 1877 and the remedy provided under the law to such person lies under section 9 of the Specific Relief Act or a suit for partition. Learned counsel argues that though the facts of the case are not admitted one but he will not argue the matter on merits discussing the facts of the case, as the only legal question is involved in this suit.
3. On the other hand, learned counsel for respondent No. 1 argues that suit under section 8 of the Specific Relief Act (I of 1877), has been filed and the same was competent. Admits that as the suit has been filed on 25-10-2001 and the eviction was in November, 1999, therefore, he admits that suit is under section 8 of the Specific Relief Act, 1877 and not under section 9 of the said Act.
4. Learned counsel representing respondents Nos. 2 and 3 supports the version of the petitioner.
5. I have heard learned counsel for the parties and gone through the findings recorded by the two courts below as well as case-law cited by learned counsel for the petitioner.
6. The position is admitted one, in Para 4 of the plaint, the case of the plaintiff that he and defendant No. 1 are joint owners of Khata. In this view of the matter, if the case of the respondent- plaintiff as pleaded in the suit is presumed as correct that defendant-petitioner has taken the possession of the suit property in November, 1999, the suit under section 8 of the Specific Relief Act, 1877 filed by the respondent-plaintiff was not competent. I am fortified by the judgments of the august Supreme Court of Pakistan reported as Muhammad Shaft and 2 others v. Munshi and 3 others (1979 CLC 230) and Mst. Resham Bibi and others v. Lal Din and others (1999 SCM R 2325). I quote Para No.22 from the judgment of august Supreme Court of Pakistan for guidance:-- "22. We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity."
7. Even for filing a suit under section 9 of the Specific Relief Act, 1877, the guiding principles laid down by the august Supreme Court of Pakistan in the judgment reported as "Canal View Cooperative Housing Society v. Javed lqbal and another (PLD 2004 SC 20) are reproduced as under:- "In a suit for possession under section 9 of Specific Relief Act, 1877 essential ingredients to be established at the trial are that (i) the plaintiff was in possession of immovable property; (ii) that he was dispossessed by the defendant;
(iii) that he was dispossessed against his consent and not in accordance with law, and (iv) that such dispossession took place within a period of six months of such suit."
8. In this view of the matter, the judgments and decrees passed by both the courts below ignoring the legal position involved in this case are not sustainable under the law and same are in clear violation of the law laid down by the B Division Bench of this Court as well as the august Supreme Court of Pakistan, therefore, while allowing this civil revision same are set aside and suit filed by the respondent-plaintiff No.1 stands dismissed.