AHMAD NADEEM ARSHAD, J.---Through this constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners call into question the validity of judgment and decree dated 04.03.2014 passed by the learned trial court and judgment and decree dated 18.11.2015 passed by the learned revisional court whereby their suit for recovery of posses-sion under Section 9 of the Specific Relief Act, 1877 was dismissed concurrently .
2. Briefly the petitioners/plaintif fs instituted a suit for recovery of possession under Section 9 of the Specific Relief Act, 1877 for a plot situated at khata No.307 measuring 04 kanals against respondents/defendanis. The suit was contested by the respondents/defendant through. filing of written statement. After framing of the issues, the learned trial Court recorded oral as well as docum entary evidence of both the parties. The learned trial Court dismissed the suit vide judgment and decree dated 04.03.2014 which was assailed in revis ion petition before the learned revisional court which too met the same fate vide judgment and decree dated 18.1 1.2015, hence, this writ petition.
3. Learned counsel for the petitioners submits that the judgments and decrees of the learned lower courts are against facts and law and result of misreading and non-reading of evidence, available on the record.
4. Pre-admission notice was issued by this Court in the name of respondents. But no one appeared on behalf of the respondents; therefore, respondents were summoned through citation in the newspaper "Daily Pakistan". After publication, Mr. Hamayun Sayed Rasool Advocate submitted his power of attorney on behalf of respondent No.2.
Today; no one appeared on behalf of the respondents, therefore, ex parte proceedings were initiated against them.
5. I have heard learned counsel for the petitioners and perused the record.
6. The petitioners/plaintif fs instituted a suit for possession under section 9 of the Specific Relief Act, 1877 which provides that if any person is dispossessed without his consent from specific immovable property other than in due course of law, he or any person claiming to him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit. The main object of this provision of law is to discourage the forcible dispossession and to provide quicker recovery of possession. Section 9 of the Specific Relief Act, 1877 is read under: -
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, notwithstand-ing any other title that may be set up in 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."
7. Bare reading of section 9 of Act ibid dictate that in order to succeed in a suit filed under section 9 of Act ibid the plaintif f must prove the four basic ingredients which are as under:--
(i) He was in possession of the immovable property in suit;
(ii) that he had been dispossessed by the defendants;
(iii) that the dispossession was not in accordance with the law; and,
(iv) that the dispossession took place within six months of the filing of the suit.
I have barrowed this wisdom from the dictum laid down by the August Supreme Court of Pakistan in case law titled "Canal View Cooperative Housing Society v. Javed Iqbal and another" (PLD 2004 Supreme Court 20) held as under:- "In a suit for possession under Section 9 of the Specific Relief act, essential ingredients to be established at the trial are "(i) that the plaintiff was in possession of the immovable property; (ii) that he was dispossessed by the defendant, (iii) that he was dispossesse d against his consent and not in accordance with law, (iv) that suit dispossession took place within a period of six months of the suit".
The same view point has also been fully elaborated in case law titled as "Late Mst. Majeedan through Legal heirs and another v. Late Muhamamd Naseem through Legal Heirs and another"( 2001 SCMR 345) wherein it was held as under:- "It is well established legal position that "Title was not material in a suit falling under section 9 and any person who had been dispossessed, otherwise than in due course of law, could, without pleading or proving title, seek to be reinducted into possession even though such a relief was sought against true owner of property himself.
8. Therefore, while, deciding suit under section 9 of the Specific Relief Act, 1877, the above-mentioned pre- requisites must be followed_ in letter and spirit. The plaintif f was bound to prove that he was in possession of the suit property and had been dispossessed by the defendant other than in due course of law .
9. Now to substantiate the above-mentioned aspect of the law, I would scan the record of the case with great care and caution.
10. Perusal of record reveals that the petitioners have purchased the land through registered deed No.196 dated 13.05.2009 and registered deed No.385 dated 06.10.2009 in a joint Khata. The contention of, the petitioners is that on 05.02.201 1 the respondents while armed with deadly weapon forcibly dispossessed the petitioners from their suit property . In order to prove this contention, the petitioner No.1 while appearing before the learned trial Court as PW-1 admitted this aspect that he was on duty when he received information that respondents have occupied the suit land. During cross-examination, he stated that he was un-aware regarding the name of person who told him on mobile phone about possession on the property . No eye-witness of the alleged occurrence regarding forcibly possession taken by the Respondents/ defendants has been incorporated in the plaint. The petitioners also produced Lumberdar of mouza Vidad as PW-2 in their support who did not make any statement against the respondents rather stated that he saw Riaz and some un-known persons demolishing the wall and occupying the property . During cross-examination he stated that he cannot tell the four boundaries of the property . On the other hand, the respondents have registered sale deed in their favour which clearly describes the four boundaries of the plot. They have also produced sanctioned map which clearly shows that they were in possession of the land.
11. Another aspect of the case is also very important that the petitioners claiming recovery of possession regarding a plot measuring 04-Kanals situated at Khata No.307, purchased through sale deed No.196 dated 13.05.2009 (Exh.P .3), but it is evident from the said sale deed that the petitioners purchased the land in Khata No.314.
Although the petitioners were succeeded after filing the suit for declaration regarding correction of Khata and the Khata number was corrected in the sale deed on the consenting statements of the vendees but it creates doubts.
Both the parties are co-sharer in a joint Khata and without establishing prior possession upon a specific portion of land and subsequent dispossession from the defendants' side, the suit cannot be succeeded. The petitioners asserted that their sale deed is prior in time from the sale deed executed in favour of respondent No.1 and specific boundaries and delivery of possession is also mentioned in the sale deed. Mere recital in the sale deep regarding boundaries of the plot and delivery of possession is not enough to succeed. They have to prove their specific possession upon the suit property throug h strong and impeachable evidence prior to dispossession and thereafter dispossession from the defendants' side without due course of law, which they failed to prove. The petitioner further agitated that the learned lower Courts failed to consider the site plan sanctioned by the T.M.A Jatoi in favour of Ghulam Abbas and Riaz Hussain from whom they purchased the suit property . They also contended that the site plan was sanctioned for a plot measuring 04-Kanals whereas the property purchased by respondent No.1 is consisted of 05-Kanals, 04-Marlas, which strengthen the petitioner's case. The site plan sanctioned by the T.M.A Jatoi is available on the file as Exh.D.2/Annexure G/2, meaning thereby this document was produced by the respondents/ defendants instead of petitioner/plaintif f. From perusal of site plan (Exh.D.2) it appears that it was submitted by Tariq Hussain (respondent No.2) and G. Haider (Ghulam Haider) and area described as 05-Kanals and 04-Marlas. The respondent No.1 purchased the suit property from Tariq Hussain and Ghulam Haider . The site plan (Exh.D.2) described the four boundaries with measurements which are the same as mentioned in the sale deed (Exh.D.1) executed in favour of the respondent No.l. Another important thing which belied the version of the petitioners is that this site plan was submitted for sanction on -15.07.2010 much before the date of alleged dispossession which was mentioned in the plaint as 05.02.201 1.
12. In view of above, the petitioners/ plaintif fs have miserably failed to prove that they were in possession of the suit property and the respondents/defendants have forcibly occupied their land without adopting due course of law.
There is no illegality or material irregularity or jurisdictional defect in the impugned judgments and decrees.
Learned counsel for the petitioners failed to point out any mis-reading and non-reading of evidence by the learned lower courts while passing the impugned judgments and decrees. The learned Courts below rightly passed the impugned judgments and decrees after correct appreciation of facts and law as well as evidence produced by both the parties, hence, warrants no interference by this Court. Resultantly , the instant petition being misconceived and devoid of merits is dismissed with no order as to costs.