1. ZAFFAR HUSSAIN MIRZA, J.--Leave to appeal was granted in this case to examine the question of law whether the suit from which this appeal arises, being a suit for ejectment from immovable property by orte co-owner against the other co-owners in respect of an undivided share is competent in law.
2. The aforesaid suit was filed by respondents No. 1 to 6 (hereinafter referred to as the plaintiffs) in 1974, against respondent No. 1 and the appellant herein, for declaration and possession of the suit land as well as water channel to the extent of 11 out of 16 shares. The appellant contested the suit on a plea that he is the sole owner of the entire disputed property repudiating the claim of the plaintiffs to ownership of 11 shares. According to his plea, the appellant had purchased the property in 1973, from respondent No. 7 who was the sole owner thereof. However, respondent No. 7 in his written statement admitted the claim of the plaintiffs and accepted that he had only 5/16th share in the land and water. He also denied the plea of the appellant that the entire property was sold by him to the appellant and submitted that only his own share was sold by him to the appellant.
3. The learned Qazi who tried the suit decreed the same in favour of the plaintiffs on 17th May, 1981.
4. The appellant being aggrieved challenged the decree before the Majlis-e-Shoora Kalat Division, Kalat, which also failed vide judgment dated 15th July, 1981. Finally the appellant challenged the judgment and decree passed by the Courts below in a revision petition before the Baluchistan High Court but the same was also dismissed by judgment dated 4th October, 1983.
5. The appellant then came before this Court and leave was granted to consider the question of law already mentioned above, namely, whether the suit as framed without a prayer for partition of the jointly held land was competent in law and additionally that the High Court in holding that the appellant was not in possession of the suit land set up a case for plaintiffs contrary to the pleas taken in the plaint. We have heard learned counsel appearing on behalf of the parties. On behalf of the appellant it has been urged that according to the concurrent findings of the Courts below the plaintiffs were entitled to 11 shares and the remaining 5 shares out of 16 shares belonged to the appellant who is in possession of the whole land, therefore, unless a decree for partition is passed, no decree for possession can be granted to the plaintiffs. No law was cited in support of the proposition advanced by the learned counsel for the appellant. This contention was repelled by the learned Single Judge in the High Court on the ground that no such objection was taken in the trial Court so that no opportunity was provided to the plaintiffs to amend the plaint. This may, however, not be sufficient to uphold the decree if otherwise it is a nullity in law. The additional reason that prevailed with the learned Judge was that the plaintiffs were in constructive possession of their share of the land through their tenants, who were paying their share of the produce to them and that the appellant had failed to prove that the possession was transferred to him by respondent No. 7. For these reasons the learned Judge in the High Court was of the view that it was not necessary for the plaintiffs to ask for actual possession of the suit land. Finally the learned Judge held that the decree passed in the suit was for joint possession of immovable property which was executable by obtaining symbolic possession under Order XXII rule 36 of the Civil Procedure Code.
6. Learned counsel for the appellant further strenuously contended that the decree passed by the learned Qazi in terms directs that the appellant shall be dispossessed from 11 shares in the suit land and possession thereof shall be handed over to the plaintiffs. In other words the submission of the learned counsel was that this was not a decree for joint possession but a decree for eviction from a portion of undivided joint property.
7. On the other hand learned counsel for the plaintiffs submitted that the terms in which the decree was passed by the learned Qazi clearly indicates that no direction was given by him to dispossess the appellant but only to put the plaintiffs (decree-holders) in possession with the appellant jointly to the extent of 11 shares. That a decree for joint possession can be passed and executed by a civil Court was supported by the learned counsel with case law as well as by the provisions of sub-rule
(2) of Rule 35 of Order XXI, C.P.C. The decisions relied upon by the learned Advocate for the plaintiffs are Bishesar Singh v. Hanuman Singh (AIR 1922 All. 314), Hanuman Parsad Narain Singh v. Mathura Parsad Narain Singh (AIR 1928 All. 472) (in which the Full Bench, held that a decree for joint possession can be granted to one co-sharer against another), Hayat and others v. Muhammad Sadiq and others (PLD 1956 Lah. 195) and Mehr and others v. Mst. Sahib Jan (PLD 1973 Lah. 455). In all these cases it has been held that a suit for joint possession would be competent by a co-sharer against other co-sharers in respect of jointly held immovable property. We see no reason to depart from the law enunciated in these decisions.
8. However, we find force in the submission of the learned counsel for the appellant that the decree in the form in which it has been granted by the trial Court does direct dispossession of the appellant.
9. The decree sheet prepared by the trial Court which is at page 78 of the printed record reads as follows:-- It is this decree which has been maintained by the Majlis-e-Shoora as well as by the High Court.
10. The translation of the plaint in the suit also shows that the plaintiffs had prayed that the possession may be taken from the appellant and delivered to them, which clearly means a decree for eviction.
11. Learned counsel for the plaintiffs was unable to support the proposition that a decree for eviction could be validly passed in respect of undivided share against a co-sharer. We cannot agree with the High Court that a decree passed in these terms would be executable in the mode prescribed by Order XXI rule 35(2) of the Civil Procedure Code. But that does not conclude the matter as the civil Court can irrespective of the specific relief claimed, grant any other relief which the circumstances of the case justify. Therefore, although the plaintiffs claimed a decree for ejectment by dispossession of the appellant, this Court can modify the same and grant a decree for joint possession.. The learned counsel for the plaintiffs has submitted that the subject-matter of dispute in this case being a revenue paying agricultural land, the civil Court was not competent to pass a decree for partition and therefore, the prayer for possession must be deemed to be for joint possession, after which the plaintiffs could approach the revenue Court for relief of partition and separate possession. It is not necessary for us to go into this question. As already observed we are inclined to modify the decree and convert it as a decree for joint possession in favour of the plaintiffs in respect of the subject-matter of the suit to the extent of 11 out of 16 Annas shares. The appeal is allowed to this extent so that with this modification in the decree the appeal is otherwise dismissed with no order as to costs.