' RUSTAM S. SIDHWA, J.---This is an appeal by Noor Alam and others, appellants, against the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dated 2-4-1984 accepting Regular Second Appeal of Mst. Qambar Sultan and others, respondents Nos.1 to 10, the successors-in-interest of Muhammad Ajaib, the original defendant.
2. The brief facts of the case are that the present appellants and the respondents are co-sharers of the Shamlat situate in village Bhet Mast, Tehsil and District Jhelum. The appellants filed a suit for declaration and consequential relief against Muhammad Ajaib, the predecessor-in-interest of the present respondents, seeking declaration to the effect that they and the other co-sharers, as entered in the list attached with the plaint, were owners in possession of the Shamlat land measuring 36 Kanals and 7 Marlas comprising Khasra No,129, Khewat No,135 and Khatauni No,519 in the said village and the entry in the cultivation column of Khasra Girdawari from Rabi 1961 showing Muhammad Ajaib in exclusive possession was unlawful, illegal, fictitious and against the facts and for a perpetual injunction restraining Muhammad Ajaib from bringing the land in dispute in his exclusive possession and control and from cultivating it or using the same or, in the alternative, if Muhammad Ajaib was found to be in possession of the suit land, then a decree for joint possession be granted in their favour and the other proprietors of the Shamlat, as entered in the list attached with the plaint. The appellants instituted the said suit under Order I, Rule 8, C.P.C. On their behalf as well as on behalf of all the co-sharers of the Shamlat in the village. The Civil Judge permitted the appellants to sue in their representative capacity.
2. The suit was contested by Muhammad Ajaib defendant. The allegations were denied and inter alia it was pleaded that he was one of the proprietors in the village and had been cultivating the said land exclusively and that the appellants had no right to interfere with his possession.
3. On the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiffs are co-sharers in the suit land ? OPP
(2) Whether the plaintiffs have been in possession of the suit land within 12 years prior to the institution of the suit land ?OPP
(3) If issue No,(2) is proved in the affirmative whether the defendant is in possession of the suit land, and is entitled to retain possession because of his being a co-sharer? OPD
(4) Whether the plaintiffs are entitled to the injunction prayed for?
(5) Relief.
4. The learned counsel for Muhammad Ajaib defendant conceded that the appellants were co- sharers in the suit land and he also conceded that he did not like to contest issue No,2 and the two issues Nos.1 and 2 were therefore decided in favour of the appellants.
5. As regards issue No3 the Civil Judge held that Muhammad Ajaib defendant was in possession of the disputed land and was entitled to remain in possession till partition. He accordingly dismissed the suit on 18-2-1966.
6. The appellants challenged the above judgment in appeal, which appeal was accepted by a learned Additional District Judge of Jhelum on 3-6-1966, who reversed the judgment of the trial.
Court and decreed the suit of the appellants, as prayed. The learned Additional District Judge observed that Muhammad Ajaib defendant had violated the condition of Shart-Wajib-ul-Arz which forbade cultivation {{URDU TEXT}}of the Shamlat and also Agreement dated 28-8-1963 entered into between the parties to the effect that the parties would not raise any further dispute with regard to the use of Shamlat land, but that they would continue to enjoy the rights in the land as before.
7. The respondents being aggrieved by the above judgment, preferred an appeal in the Lahore High Court, which was allowed by a learned Single Judge, who set aside the judgment of the first appellate Court and restored that of the learned Civil Judge. The present appeal of the appellants is against the said judgment.
8. We have heard the arguments of the learned counsel for the appellants and the respondents and have perused the record. It is not disputed before us that the appellants with the other proprietors, including the respondents, as entered in the list attached with the plaint, are co- sharers in the Shamlat land. The learned counsel for the respondents concedes that if a declaratory decree is granted to the effect that the appellants and the other proprietors, including the respondents, are owners in possession as co-sharers of the disputed Shamlat land, his clients would have no objection, provided that the rights of the respondents to retain possession and cultivate the Shamlat land in dispute, till partition, is not disturbed. However, the learned counsel for the appellants concedes that if such a declaratory decree is granted and that by way of consequential relief the entries in the Khasra Girdawari from Rabi 1961 onwards showing the respondents or their predecessor as in exclusive possession is declared as illegal and void or, in the alternative, that the appellants with other proprietors, including the respondents, are granted a decree for joint possession of the land, his clients would have no objection. If we hold, as we are inclined to do, that the appellants are entitled to the declaratory relief, then as already agreed by the counsel for the parties, the appellants will have the declaration that they are in joint possession as co-owners with the respondents. The decree for joint possession will, therefore, not be an appropriate consequential relief. The appellants have not pleaded any case of ouster in the plaint, except that an entry of exclusive possession has been shown to have been made in the Khasra Girdawari of 1961. It is a well-settled principle that consequential relief can be granted on facts pleaded and set out distinctly and separately. In the plaint the case of dispossession has not been set out. Therefore, only consequential relief of permanent injunction would appear to be appropriate in the circumstances of the case. Besides, the learned counsel for the respondents clearly concedes that his clients do not claim adverse possession against the appellants in respect of any portion of the disputed land.
In view of the above, we accept this appeal, set aside the judgment of the learned Single Judge of the High Court dated 2-4-1984 and grant the appellants a declaratory decree to the effect that they with the other proprietors of the Shamlat, as entered in the list attached with the plaint, including the respondents, are owners in possession as co-sharers of the disputed Shamlat land measuring 36 Kanals and 7 Marlas Hasbe Rasad Az Khewat comprising Khasra No,129, Khewat No,135, and Khatauni No,519 situated in village Bhet Mast, Tehsil and District Jhelum, and as consequential relief the respondents shall be restrained from interfering with the rights of the appellants who have been declared as co-owners in possession or claim to be the exclusive owners of the portion in their possession. There shall be no order as to costs.