' AMIN-UD-DIN KHAN, J.--- Through this writ petition, petitioner has challenged the judgment/order dated 13-4-2007 passed by learned Additional District Judge, Khushab, whereby the revision petition filed by him was dismissed, and the judgment and decree dated 22-2-2007 passed by learned Senior Civil Judge, Khushab, whereby the suit filed under section 9 of the Specific Relief Act, 1877 by respondent No,1/plaintiff was decreed.
2. Briefly, the facts of this case are that on 23-8-2001 the plaintiff/respondent No,1 filed a suit for re- possession of plot measuring 1-kanal specifically mentioned in the head note of plaint. The written statement was filed and suit was contested. Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 22-2-2007 suit was decreed by learned trial court. A revision was filed, which was dismissed vide judgment/order dated 13-4-2007. Hence, this writ petition by the petitioner- defendant.
3. Learned counsel for the petitioner-defendant argues that the original gift deed on the basis of which respondent-plaintiff claims ownership of plot has not been produced; that it has never been proved by the plaintiff by producing convincing and confidence inspiring evidence that she was in possession of suit plot and when she was dispossessed on the specific date by the petitioner- defendant; that none of the ingredients required to be proved for prayer of relief under section 9 of the Specific Relief Act is available nor same has been proved. Further argues that learned courts below have mainly relied upon the proceedings of a criminal case registered against the petitioner with regard to the same alleged occurrence of taking over the possession of plot in dispute, therefore prays that the order, judgment and decree passed by both the courts below be set aside and suit filed by the plaintiff/respondent be dismissed. Learned counsel for the petitioner further argues that when the suit for declaration under section 42 of the Specific Relief Act filed by the petitioner was pending and learned District Judge had also passed an order for proceedings simultaneously in a court, therefore that suit should have to be decided with the suit in hand.
4. On the other hand, learned counsel for respondent No,1/plaintiff argues that there are concurrent findings of facts recorded by two courts below and there is no defect in the same by referring the oral as well as documentary evidence; that the plaintiff/respondent has fully proved that she was in possession of suit plot on 24-2-2001 when she was dispossessed without her consent by the petitioner-defendant; that the criminal proceeding is relevant and further that when petitioner- defendant while appearing as his own witness has admitted that on the gift deed Finger Print Expert has reported that his thumb impressions are available, therefore that evidence was admissible as has rightly been relied upon by the courts below.
5. I have heard the learned counsel for the parties at full length and also gone through the voluminous record appended with this writ petition as well as produced before the trial court in shape of documentary evidence.
6. The petitioner-defendant has approached this Court under constitutional jurisdiction i,e, Article 199 of the Constitution of Islamic Republic of Pakistan, 1973: As the findings recorded by learned trial court are comprehensive and in accordance with the evidence led by the parties, oral as well as documentary, therefore there is no need to further discuss the evidence and findings of both the courts below at this stage when this Court is adjudicating upon the instant constitutional petition.
The only point considerable by. This Court is that whether any jurisdictional defect has been committed by the courts below. Learned counsel for the respondent/plaintiff while referring the order dated 16-5-2007 passed by this Court whereby pre-admission notice was issued while entertaining this writ petition, has stated that by misstatement of fact the order for pre-admission notice was procured, as the suit was filed on 23-8-2001 and not on 1-9-2001 which was not time barred. Further that the suit tiled by the petitioner-defendant for cancellation of gift deed on the basis of which the present plaintiff/respondent claims ownership, admittedly that suit has been dismissed vide judgment and decree dated 31-5-2012 passed by learned Senior Civil Judge, Khushab.
7. So far as the matter of considering the evidence and report of Finger Print Expert is concerned, as the petitioner-defendant when appeared as witness has admitted in his statement that thumb- impressions on the gift deed have been reported to be of him, therefore same can be used. So far as the contention of learned counsel for the petitioner that his suit should also have been decided with the suit in hand is concerned, I am clear in my mind that suit for declaration under, section 42 and under section 9 of the Specific Relief Act, cannot be consolidated. As such learned trial court has committed no illegality while deciding the same separately. In the judgment and decree passed in a suit under section. 9 of the Specific Relief Act, except in exceptional circumstances no such interference should be justified merely on the ground that finding on question of fact was not based on adequate evidence and was erroneous, otherwise it would be against the spirit of section 9 of the Act ibid and in effect would convert the revision petition into an appeal, which law expressly disallows. In this regard, light can be taken from the judgment of august Supreme Court of Pakistan reported as 2001 SCMR 345 (Late Mst. Majeedan (through her legal heirs) and another v. Late Muhammad Naseem (through his legal heirs) and another)"
8. When there is a general rule that in the suit under, section 9 of the Specific Relief Act the ordinary rule for decision of lis is of possession, therefore it should be followed in deciding whether a person has been dispossessed within six months of the date of suit. In order to C bring this section into operation it is not necessary that the possession should be the actual physical occupation of the property. Constructive possession which goes with title would suffice for the purposes of this section. In this context, light can be taken from the judgment reported as "AIR 1918 Nagpur 105 (Ghulam and another v. Sheodin Ram and others)". With regard to exercise of revisional powers in a suit filed under section 9 of the Specific Relief Act, it is also held in the above noted judgment that when an alternate remedy is available to a party, the party should go for the alternate remedy.
Reliance can be placed upon "PLD .1973 Lahore 655 (Malik Nasim Ahmad v. Malik Rasool Bakhsh and another) PLD 1979 Karachi 227 (Riaz and another v. Razi Muhammad) and PLD 1989 Peshawar 67 (Isa Khan and 23 others v. Barkatullah and 9 others)".
9. The petitioner-defendant has pleaded in Para 1 of his reply that the plot is vacant. In this regard reliance can be placed upon "PLD 1993 Peshawar 81 (Sardar Muhammad and 2 others v. Haider Zaman and 3 others) and 1996 CLC 1588 (Amir Hussain Khokhar v. Mst. Nargis Khatoon)" wherein it has been held that possession of vacant site or vacant land naturally goes with the title of the rightful owner.
10. So far as the entries of Khasra Girdawari are concerned, as admittedly the plot in dispute is in residential housing scheme prepared by the petitioner's family. The Khasra Girdawari has no legal value or the revenue staff was not legally required to conduct Girdawari thereof. In this regard reliance can be placed upon "1990 CLC 1617 (Mir Afzal and 2 others v. Muhammad Raza Khan and 13 others)". Moreover, even in a suit under section 9 of the Specific Relief Act, title of property is also not material. Reliance can safely be made upon the judgments reported as "2001 SCMR 345 (Late Mst. Majeedan (through her legal heirs) and another v. Late Muhammad Naseem (through his legal heirs) and another) and PLD 2004 Supreme Court 20 (Canal View Cooperative Housing Society v. Javed lqbal and another)".
11. In the light of what has been discussed above, when in the cases arising under section 9 of the Specific Relief Act the revisional powers can rarely be used in exceptional circumstances, therefore no question of exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 occurs. No any jurisdictional defect has been highlighted by learned counsel for the petitioner-defendant, therefore this writ petition is not competent. It is hereby dismissed with no order as to costs.