SADAQAT ALI KHAN, J:- This civil revision No.449-D of 2002 has been filed by the present petitioner against judgment and decree dated 10.07.2002, passed by Additional District Judge, Bahawalnagar, according to which appeal of the respondent was accepted, filed by him against judgment and decree dated 04.03.2002, passed by Civil Judge, Minchinabad, according to which suit of the present petitioner for possession of the suit property was decreed.
2. The brief facts of the case are that present petitioner being plaintiff on 15.04.1997, filed suit for possession qua the suit property whose details are mentioned at the head note of the plaint.
Present respondent submitted written statement and denied the assertions made by the plaintiff/present petitioner. Learned trial court out of divergent pleadings of the parties framed following issues:
1. Whether the plaintiff is owner of the disputed house? OPP
2. Whether the plaintiff is entitled to the possession of the disputed house as prayed for? OPP
3. Whether the plaintiff has got no cause of action? OPD
4. Whether suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
5. Whether the defendant is entitled to recover special costs under section 35-A CPC? OPD
6. Relief.
3. Present petitioner Muhammad Ali appeared as PW-1, Allah Bakhsh appeared as PW-2 and Shah Muhammad as PW-3. In documentary evidence, produced Jamabandi Exh.P-1. On the other hand, Abdul Rashid appeared as DW-1, Muhammad Siddique respondent appeared as DW-2 and produced in documentary evidence Jamabandi for the years 1995-96 as Exh.D-1, mutation No. 286 Exh.D-2, judgment and decree dated 19.03.1999 as Exh.D-3. Learned trial court after hearing arguments of learned counsel for the parties, decreed the suit of the present petitioner vide judgment and decree dated 04.03.2002. Appeal filed by the present respondent was accepted by Additional District Judge, Bahawalnagar vide judgment and decree dated 10.07.2002. Hence, this civil revision.
4. Learned counsel for the petitioner submitted that impugned judgment and decree of lower appellate court are against law and facts on the file and are liable to be set aside. It is further contended that impugned judgment and decree of lower appellate court are result of misreading and non-reading of the evidence.
5. Learned counsel for the respondent has vehemently opposed this civil revision and supported impugned judgment and decree of the lower appellate court below.
6. I have heard learned counsel for the parties and perused the record.
7. Present petitioner has filed suit for possession qua the suit property i.e. measuring 5 Marlas with construction pertaining to Khewat No.8, Khatooni Nos. 47 to 64, situated within revenue state of Qandharpur, Tehsil Minchanabad, District Bahawalnagar. I have perused Jamabandi for the years 1995-96 pertaining to Khewat No.8, mentioned above produced by the present petitioner as Exh.P-1 and found that total land of Khewat No.8, Khatooni Nos.47 to 64 is 170 -4 and the share of the present petitioner is 36/3404 i.e. 1-16 and more than 100 persons are co-owners. Present respondent is also co-owner having 0-4 ownership. Present respondent has produced Jamabandi for the years 1995-96 as Exh.D-1 in this respect. It is not the case of the present petitioner that suit property had been partitioned earlier in any manner. According to the Jamabandi Exh.P-1 produced by the present petitioner/plaintiff, suit property is joint one.
8. In view of the above discussion, suit of the present petitioner under section 8 of Specific Relief Act for possession of suit property against co-sharer is not maintainable whereas petitioner has not filed suit for partition. Reliance is placed on case titled Mst. Resham Bibi and others Vs. Lal Din and others (1999 SCM R 2325)in which Hon'ble Supreme Court of Pakistan has observed at page No.2330 as under: "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."
9. Learned lower appellate court has rightly by accepting the appeal of the respondent, dismissed suit of the present petitioner. The impugned judgment and decree of the lower appellate court are not result of misreading and non-reading of evidence. Learned counsel for the petitioner has failed to point out any illegality in the impugned judgment and decree of lower appellate court.
10. For the foregoing reasons, this civil revision has no merits and is dismissed.