ALI AKBAR QURESHI, J.---This civil revision assails the judgment and decree dated 19.12.2006 and 18.04.2006, passed by the learned Courts below, whereby the suit for possession filed by the respondents was decreed against the petitioners.
2. The necessary facts for the disposal of this revision petition are that; the respondents/plaintiffs (hereinafter mentioned as respondents) instituted a suit for possession against the petitioners/ defendants (hereinafter mentioned as petitioners) on the grounds, that the respondents purchased the suit land from one Musharaf Nawaz for a consideration of Rs.60,000/- through Registered Sale Deed No.156, dated 20.04.2001; the sale was given effect in the revenue record against Mutation No.8857, dated 27.08.2001; that the respondents raised the four-walls and also installed a door and the same was given to petitioner No. 1/Irshad Ahmad, who is policeman for few months on the promise, that the same shall be vacated as and when the respondents will ask; and when the respondents demanded the possession of the suit land, the petitioners refused to accede the lawful demand.
Petitioners in response of the notice appeared in the Court, filed their contesting written statement, wherein it was specifically stated, that the petitioners also purchased the suit land from the same vendor namely Musharaf Nawaz and having the possession in their own rights.
Learned trial court framed necessary issues out of the divergent pleadings of the parties recorded the evidence and finally decreed the suit vide judgment and decree dated 18.04.2006, against which an appeal was filed by the petitioners, which too was dismissed, vide judgment and decree dated 19.124006. Hence, this revision petition.
3. Learned counsel for the petitioners mainly argued the following points:-- (1)That the format of the suit is in accordance with the terms of Section 8 and not Section 9 of the Specific Relief Act, 1877, therefore, the respondents were required to prove their title; (2)That the respondents failed to produce the marginal witnesses, identifier or even buyer of the sale deed allegedly executed in their favour by Musharaf Nawaz the vendor, therefore, this type of the document cannot be received or relied in evidence. Reliance is placed on "Hafiz Tassadua Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 SC 241), also submitted, that the respondents have also failed to fulfill the requirements of Articles 70 and 79 of the Qanun- eShahadat Order, 1984.
(3)That it is the duty of the respondents to establish their ownership without any shadow of doubt.
Reliance is placed on "Manzoor Ahmad and 9 others v. Ghulam Nabi and 5 others" (2010 CLC 350) and mere registration does not mean the execution of the document/sale deed.
4. Further submitted, that the petitioners at the time of filing the written statement specifically stated, that the petitioners have also purchased the land from the same vendor i.e. Musharaf Nawaz and the petitioners to prove the sale deed produced two marginal witnesses DW2 and DW3 as well as Halqa Patwari, whereas the respondents while filing the suit for possession did not ask for the declaration of the suit and that cancellation of the sale deed executed in favour of the petitioners, therefore, the suit is not maintainable. Reliance is placed on "Muhammad Aslam v. Mst.
Ferozi and others" (PLD 2001 SC 213), and "Ali Muhammad and another v. Muhammad Bashir and another" (2012 SCMR 930).
5. Both the parties i.e. petitioner and the respondents purchased the land from one vendor and out of same Khata i.e. Khata No.210, therefore, suit for possession against the co-sharer is not maintainable. Reliance is placed on "Mst. Resham Bibi and others v Lal Din and others" (1999 SCMR 2325), "Khan Mir Daud Khan and others v. Mahrullah and others" PLD 2001 SC 67 and "Mst. Ramzan Bibi v. Additional District Judge and others" (1995 CLC 1506).
6. As regards the earlier suit filed by the petitioner wherein the plaint was rejected and rejection of the plaint is not res judicata. Reliance is placed on "Mst. Zubaida v. City District Government, Karachi" (PLD 2004 Karachi 304).
7. On the other hand, learned counsel for the respondents argued the case on the following lines; that the suit land was purchased on 20.04.2001 and four-walls were constructed and was given for a few months to petitioner No. 1, for his use who has refused to return the same; that the suit has been filed by the respondents under Section 9 of the Specific Relief Act, 1877, and not under Section 8 and mere non-mentioning of the provision of law does not affect the rights of the respondents; that the sale deed was executed in favour of the respondents prior to sale deed executed in favour of the petitioners, therefore, the sale deed executed prior in time is to be given weightage. "Abdul Rashid v. Muhammad Yaseen and another" (2010 SCMR 1871) and "Mst. Shah Sultan and 45 others v. Chief Commissioner of Islamabad and 5 others" (2004 CLC 145).
Learned counsel also referred the cross examination of patwari, who appeared as DW.
8.Heard. Record perused.
9.The record of the case was perused with the assistance of learned counsel for the parties. Firstly it is to be seen as to whether the suit filed by the respondents according to its contents and averments falls within the ambit of Section 8 or 9 of the Specific Relief Act, 1877. For ready reference, Sections 8 and 9 are re-produced hereunder:-- 8.Recovery of specific immovable property. A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure.
9.Suit by person dispossessed of immovable property. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit [* * *] recover possession thereof, notwithstanding any other title that may be set up in the suit.
Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
No suit under this section shall be brought against [the Central Government or any Provincial Government].
No appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order or decree be allowed.
The aforesaid provisions of law may be simply interpreted in the manners, that under Section 8, the recovery of the immovable property can be prayed on the basis of the title, whereas under section 9, a person who has been dispossessed without his consent can be asked for the recovery of the immovable property. The averments of the suit filed by the respondents were examined, wherein the respondents in first paragraph of the suit has given the detail of the suit property purchased by him from one Musharaf Nawaz against consideration through a registered sale deed and sought the recovery of possession of the land purchased by him. Therefore, it can safely be observed, that the suit filed by the respondents does fall within the ambit of section 8 of the Specific Relief Act.
10.There is another distinction sussing out from the record, that the respondents with their own consent handed over the possession of the suit land to the petitioners allegedly to use the same for a certain period and it was agreed that the same will be returned as and when the respondents will claim, therefore, the provision of Section 8 of Act ibid is fully applicable and not Section 9.
11.The afore-referred averments of the suit filed by the respondents offend the provisions of Section 9 of the Act ibid, wherein it is clearly mentioned, that the suit under Section 9 can only be filed if the person has been dispossessed without his consent from the immovable property, whereas in this case the situation is otherwise as the respondents with their free will and consent gave the possession of the property to the petitioners, as alleged by them, to use the same for certain period. By this way, the contention raised by the learned counsel for the respondents during the course of arguments, that the respondents filed the suit under Section 9 instead of under Section 8 of the Act ibid, is contrary to the averments of the plaint filed by them arid the respondents are estopped by their own conduct which is floating on the surface of the record to claim, that the suit has been filed under Section 9 of the Act ibid. On this proposition, the Hon'ble Supreme Court of Pakistan, has ruled in the recent judgment "Hazrat Ullah and others v. Rahim Gul and others" (PLD 2014 SC 380), that in a suit filed under Section 8 of the Specific Relief Act, 1877, the declaration of the entitlement is an inbuilt relief claimed by the plaintiff. Relevant paragraph is re-produced as under:-- "As far as the plea that Mst. Jarjan had never challenged the sale deed dated 19-04-1938 in favour of Qudratullah in the suit, but only filed a suit for possession, it may be held that in a suit under section 8 of the Specific Relief Act, 1877, the declaration of the entitlement is an inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to the possession, it means that he/she has been declared to be entitled, which includes the declaration of title of the plaintiff qua the property, and this is integrated into the decree for possession; and when Mst.
Marjan had attained the decree for possession and found entitled to the possession in terms of section 8 (supra), undoubtedly the sale deed dated 19-4-1938 in favour of Qudratullah irrespective of it not being directly challenged, would render the above sale deed as nugatory and redundant; because the title of Mst. Marjan shall be valued on the basis of the judicial verdict i.e. the decree, and the sale deed shall not be a hindrance in her way. "
In the judgment (supra) the Hon'ble Supreme Court of Pakistan has observed that in case the suit has been filed under section 8 of the Specific Relief Act, 1877, the declaration of the document would be an inbuilt relief but in this case, the learned counsel for the respondents categorically submitted during the course of arguments that the respondents have filed the suit under section 9 of the Specific Relief Act, 1877, and not under section 8 of the said Act, to recover the possession.
Further, the respondents as established on record, could not produce even a single witness, scribe or identifier to fulfill the mandatory requirement of Articles 17(2) and 79 of the Qanun-e-Shahadat Order, 1984, to prove their title (sale deed) in the circumstances, when the respondents claimed the possession on the basis of a title and it has already been observed, that according to the averments of the plaint and submission made by the respondents, the suit filed by the respondents falls in the ambit of Section 8 instead of Section 9 of the Specific Relief Act, 1877.
12. As depicts from the record and not denied by the learned counsel for the respondents, that the respondents did not produce the marginal witnesses to fulfill the mandatory requirement of Articles 17(2) and 79 of Qanun-e-Shahdat Order, 1984. Even the respondents did not produce the buyer and the identifier therefore, the petitioners completely failed to prove their title, hence, are not entitled to ask for the recovery of the possession under section 8 of the Specific Relief Act, 1877.
In these circumstances, the sale deed on the basis of which, the respondents have filed the suit, is otherwise not admissible in law. Reliance is placed on "Farzand Ali and another v. Khuda Bakhash and others' (PLD 2015 SC 187).
13. The Hon'ble Supreme Court of Pakistan in another judgment cited as "Ali Muhammad and another v. Muhammad Bashir and another" (2012 SCMR 930) has dealt this proposition in the following esteemed words:-- "7. We have heard learned counsel for the parties and have also perused the available record. It is an admitted fact that both the suits were filed on 17-2-1979 by appellant Ali Muhammad and Muhammad Ramzan (appellant in the other appeal) against Bashir and Fateh Muhammad respectively seeking declaration and challenging the registered pata milkiat, which was executed on 21-07-1975 and registered on 24-07-1975, to be declared as ineffective. These deeds were produced in evidence. No objection to the production of these deeds was taken by the appellants before the trial Court nor their authenticity was challenged. These deeds were produced and exhibited. On the basis of these deeds, the respondents in both the appeals, claimed their right in the property. The format of the suit is confined to declaration of title. In the plaint, the appellants in both the appeals, have admitted that the respondents are in physical possession of half portion of the properties and were in knowledge of the registered instruments of pata milkiat in favour of the respondents. In the face of such material, the appellants have not sought cancellation of registered instruments in terms of section 39 of the Specific Relief Act in the suit nor direction of their ejectment in suits have been sought. When confronted with this situation, the learned counsel for the appellants could not offer any plausible explanation except that he contended that the appellants had the right to file a separate suit for possession. Even this argument is without substance. The law does not permit a second suit if a right to the plaintiff is available at the time of filing of the suit. A second suit in such-like situation is otherwise barred under Rule 2, Order II, C.P.C.
In paragraphs Nos.10 and 11 of this judgment it has been observed, that:-- In these circumstances, we are of the considered view that the appellants have failed to establish before the trial Court that they have the right to seek declaration of title of the land in the absence of specific prayer of cancellation of documents and possession, mores when the appellants have admitted possession on the strength of registered documents coupled with the evidence of Sher Muhammad which went un-rebutted. We, therefore, hold that the suits were not competent, in the first place and in the second place evidence of Sher Muhammad has proved the arrangement between the parties pursuant to which the registered instruments were executed by appellants.
11. For the aforesaid reasons, both these appeals are dismissed with no order as to costs and the judgment of the trial Court is maintained."
There is another judgment titled "Muhammad Aslam v. Mst. Ferozi and others" (PLD 2001 SC 213), which deals with the same proposition wherein it is observed, that:-- "It is also not understandable as to how a suit for possession had been filed without seeking declaration in respect of title."
14.Needless to reiterate, that the respondents filed the suit for possession on the basis of the title deed, whereas the petitioners/defendants while filing the written statement specifically stated, that they are in possession of the suit land on the basis of a registered sale deed but the petitioners neither amended the plaint nor sought the cancellation of the sale deed claimed by the petitioners.
15. As regards the concurrent finding, the Hon'ble Supreme Court of Pakistan has observed in plethora of judgment that the concurrent findings could not be considered as sacrosanct and this Court is competent to interfere if such findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous, presumption of facts and consideration of inadmissible evidence. Reliance is placed on "Muhammad Aslam V. Mst. Ferozi and others" (PLD 2001 SC 213).
16. In view of above, it is held, that the suit filed by the respondents falls within the ambit of section 8 of Specific Relief Act, 1877, and not under section 9 of the Act ibid and the respondents have failed to prove their title and are not entitled to ask for the possession of the suit land.
17. Resultant, this revision petition is allowed, the judgment and decree passed by learned Courts below is set aside and the suit filed by the respondents is dismissed. No order as to costs.