' The petition is addressed against the order of learned Additional Sub-Judge, Mirpur, passed on 30th March, 1989, whereby the suit for possession was decreed in favour of plaintiff-respondent.
2. Muhammad Akram brought a suit for possession under Section 9 of Specific Relief Act, in respect of land measuring 5 kanals comprising survey number 123, situate in village Samwal Sharif, Tehsil Mirpur. Plaintiff-respondent secured a compromise decree in respect of the suit land on 9th May, 1973. A Mutation No, 154 was attested in his favour and he also secured possession of the land. The possession was delivered to the plaintiff-respondent by mutual arrangement. On 8th July, 1982, the defendant-petitioners, took undue advantage of holidays and occupied the suit land by raising a cottage over the same. The suit was instituted on 27th July, i.e, 19 days after the alleged forcible dispossession of the plaintiff-respondent. The defendent-petitioners resisted the suit by claiming their continuous exclusive possession of the suit land and by assailing the compromise decree on the ground of fraud committed by Hafiz Muhammad, their attorney. The written statement was presented on 3rd November, 1983. The trial Court decreed the suit.
3. Mr. N.A. Ghauri, the learned Counsel for the petitioners assailed the impugned order. It was emphasized that the learned Additional Sub-Judge fell in error in granting the impugned decree.
The provisions of Section 9 of Specific Relief Act, were misconstrued, as such in absence of evidence, an illegal order was passed in favour of respondent. The contention was opposed by Mr. M.S. Tariq, the learned Counsel for the respondent who supported the impugned order by showing that evidence on record sufficiently proved possession and dispossession of the plaintiff- respondent.
4. Section 9 of the Specific Relief Act postulates that 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 such suit.
5. The vital condition contained in Section 9 is that plaintiff must be dispossessed of the property without his consent, otherwise than in due course of law. The onus is obviously on the plaintiff.
6. In present case, plaintiff-respondent alleged his possession of the suit land on account of a compromise decree supported by a settlement between the parties whereby exclusive possession of survey number 123 containing the suit land was delivered to him in 1973. In support of his claim, plaintiff produced copy of jamabandi for the year 1968-69, copies of mutations sanctioned in his favour, copies of the judgment and compromise decree and produced Muhammad Zaman, Munshi Iftikhar Hussain, Patwari and himself appeared as a witness. The documentary evidence, prima facie, supports the claim of plaintiff to hold that he secured a compromise decree of the suit land on 31st July, 1973.
' The judgment and decree passed by virtue of compromise show that the title of the plaintiff in part of the land previously in dispute, including the suit land, was admitted. On the basis of admission, decree for joint possession was passed accordingly. Thus, the plaintiff bacame a co- sharer in the suit land. There is nothing on record to prove execution of decree for joint possession.
Jamabandi for the year 1968-69 precedes the compromise decree for joint possession. Moreover, there is no evidence to hold that after passing of the compromise decree, it was duly executed and that a settlement for partition of the respective shares of the parties, took place by virtue of which, the plaintiff-respondent occupied the suit land.
7. Statement of Patwari confines to the record of rights. Muhammad. Zaman deposed that he ploughed the land as a tenant at the intance of Hafiz Muhammad, on behalf of the plaintiff. It was elaborated that he ploughed the land only once when Muhammad Iqbal, defendant-petitioner objected to it on which he left ploughing of the land. In cross-examination the witness stated that he ploughed the land 2-1/2 years before his deposition. His statement was recorded on 19th August, 1984. The witness admitted that the land left by Shard, the last owner, was being cultivated by Muhammad Iqbal, defendant He denied his knowledge of duration of such cultivation. He denied the knowledge of the land which he cultivated on behalf of the plaintiff. It was admitted by this witness that 2-1/2 years earlier, Muhammad Iqbal constructed a house in the suit land.
Muhammad Akram, plaintiff-respondent deposed that by virtue of private partition, the suit land fell to his share. His evidence was also recorded on 19th August, 1984. It was stated in examination- in-chief that two years earlier, or 1- 1/2 years earlier, defendant occupied the land and constructed a house over it. In answer to a question, he explained that he instituted a suit for partition of the suit land but the same was dismissed. Again, he said that no suit was instituted on his behalf. He has not corroborated Muhammad Zaman to hold that Muhammad Zaman cultivated the land on his behalf. This is the entire evidence of plaintiff-respondent.
8. It is noticed that the whole evidence does not disclose as to how and when private partition took place on the basis of which suit land fell to the share of plaintiff. This suggests that story of private partition and the alleged possession of plaintiff-respondent was artificial. It was an indirect attempt to take possession of survey number without resorting to partition by meats and bounds.
The intention is understandable as the plaintiff admits in his evidence that land under survey number 123 was of better kind.
9. The requisite condition contemplated under section 9 of the Specific Relief Act, pertaining to possession of the subject of dispute has not been fulfilled by evidence of the plaintiff. The other part of the proposition is to prove forcible dispossession. In his suit, the plaintiff-respondent averred that defendant-petitioners took forcible possession of the land on 8th July, 1982. The overt act of forcible dispossession, on the relevant date, finds no support from the evidence of the plaintiff. It is noticed earlier, that in his evidence recorded on 19th August, 1984, the plaintiff deposed that he was forcibly dispossessed two years earlier and subsequently he said 1-1/2 years earlier. Such a contradictory stand about the period of dispossession, negates the claim of plaintiff-respondent.
As against that, the counter-claim of defendants is that they were in continuous possession of the suit land. Irrespective of the oral evidence of the defendants, it was admitted by the plaintiff and his witness that defendant No,1 had constructed a house in the suit land. It was shown to have been constructed in 1982. This factual position was supported by khasra girdawari pertaining to the years 1978 to 1985. As against that, the plaintiff produced no Revenue Record including ;khasra girdawari showing his possession of the suit land, prior to the construction of the house by the defendant.
10. In order to ascertain the fact of taking the possession by virtue of private partition, it was enjoined upon the plaintiff to produce record of rights including the daily diaries of patwari and khasra girdawari, relating to the time when he entered into possession of the suit land, till the time of his dispossession. No explanation has come forward for non-production of such record. It is further noticed that the entries of record of rights are not assailed in pleadings or evidence to hold them incorrect. Plaintiff produced no evidence to rebut the entries contained in the record of rights.
The Additional Sub-Judge misconstrued the evidence by adverting to the entries of khasra girdawari and acted in misconstruing the same. The entries of khasra girdawari could have been explained by the patwari to the satisfaction of the Court, provided he was cross-examined by the plaintiff or the Court to remove any doubt in respect of the same. As he was not asked any question nor an explanation was sought for from him, when he appeared as a witness, it was not permissible to entertain doubt about the bona fides of the same.
11. The order of the trial Court is based on misreading and misconstruing the evidence of the plaintiff who was enjoined to discharge onus by producing convincing evidence. This order is, therefore, set aside. The suit is dismissed. The petition succeeds with costs.