SHAIKH ABDUR RAZZAQ, J.- Briefly stated the facts are that Mst. Raj Begum and others plaintiffs/respondents filed a suit for possession of land measuring 13 marlas out of Khasra No. 270/1 against Abdur Rashid and Mst. Walayat Bibi claiming that defendants/appellants have encroached upon their said land. Their stand was resisted by the defendants/appellants.
2. Similarly Fazal Dad, A.I Dad and Muhammad Afsaf filed suit for possession for land measuring 18 kanals out of Khasra No. 279/1, for land measuring one kanal 22 marlas out of Khasra No. 283 alleging that defendants/appellants have encroached upon their land referred above. All the suits were resisted by the defendants/appellants and were finally consolidated by the Trial Court and following consolidated issues were framed:-
(I) Whether the suit land is in cultivating possession of the plaintiff? (2) Whether the entries made at the time of Settlement were made fictitiously and collusively? If so, what effect?
(3 ) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction?
(4) Whether the defendants have encroached upon the suit land?
(5) Relief.
3. In support of their stand plaintiffs/respondents examined PW Manzoor-ul-Haq Girdawar, PW-2 Fazal Dad, and PW-3 Rang Baz learn counsel for the plaintiffs/respondents also brought on record documents E P-3 to P 16 in support of their stand and thereafter closed the evidence. Rebuttal the defendants/appellants examined DW-1 Muhammad Sharif. Trial Court also examined Ch. Muhammad Sarwar as CW-1.
4. After going through the evidence produced by the parties Trial Court dismissed the suit of the plaintiffs/respondents vide judgme and decree dated 23.2.1976. The plaintiffs/respondents felt aggrieved a filed an appeal which was accepted by the learned Additional Distri Judge, Rawalpindi vide judgment and decree dated 24.10.1978. Defendants/appellants have felt aggrieved of the said judgment and decre and filed the instant R.S.A.
5. Alongwith this appeal R.S.A. No. 809/79, 820/79 and 821/7 have also been filed as all these Regular Second Appeals arise out of th same judgment, so these are being disposed of by this single judgment.
6. Arguments have been heard and record perused.
7. The only point which require determination is it plaintiffs/respondents have been dispossessed by the defendants/appellants of the land mentioned in the head note of each plaint. To prove their contentions plaintiffs/respondents have examined three witnesses and have also brought on record the statement of CW-1. They have also brought on record documents Ex. P-3 to P 16.
Conversely the defendants/appellants did not care to examine themselves and produce any documentary evidence in support of their contention. The simply relied upon the statement of DWI who has admitted himself to be their Karinda. In other words there is no evidence at all which has come on record to rebut the oral as well as documentary stand of the plaintiffs/respondents.
8. In order to see if -the plaintiffs/respondents have been dispossessed from the suit land or not a perusal of documents produced by the plaintiffs/respondents is necessary. It is evident from copy of Jamabandi for the year 1966-67 Ex. P-3 that Khasra No. 278 has been coming in possession of Muhammad Akbar but later on a portion of land, as alleged by the plaintiffs/respondents, has been encroached by the fendants /appellants. The said possession stands further thrtified by copy Jamabandi of the year 1962-63 Ex. P-H and Jamabandi for the year 55-56 Ex. P-12. So far as the stand of Muhammad Afsar aintiff/respondent is concerned a reference 'can be made to Jamabandi for e year 1955-56 Ex. P-5, Jamabandi 1962-63 Ex. P-6 and Jamabandi 66-67 Ex. P-4. All these Jamabandi is clearly show that Muhammad sar has been coming in possession of the suit land appearing in Khasra . 283 in the capacity of co-sharer. So far as A.I Dad plaintiff/respondent concerned he has claimed to be himself in possession of Khasra No. 280 which a portion has been encroached upon by the defendants/appellants. Support his contention a reference can be made to Jamabandi for the ar 1955-56 Ex. P-7 and 1962-63 Ex. P-8. These documents prove that I Dad has been coming in possession of Khasra No. 280 being a coarer of the same. So far as Fazal Dad plaintiff/respondent is concerned, e claims that he has been in possession of Khasra No. 279, a portion of which has been encroached upon by the defendants/appellants. His possession stands proved from the copy of Jamabandi for the year 1955-56 x. P-9 and 1962-63 Ex. P-10. Beside these documents the plaintiffs/respondents have also brought on record copy of Khasra Girdawari Ex. P- 13 which relates to Kharif 1967 to Rabi 1971. A perusal of this Khasra Girdawari also reveals that Muhammad Akbar, Fazal Dad, A.I Dad and Muhammad Afsar have been coming in possession of land measuring 1 kanal 6 marlas, 2 kanal 6 marlas, 2 kanal and 3 kanal 13 marlas respectively. They have been shown in possession till Kharif 1969. However, suddenly in Rabi 1970 a portion of Khasra No. 278, 279, 280 and 283 of which Muhammad Akbar, Fazal Dad, A.I Dad and Muhammad Afsar have been coming as Hisa-dar (co-sharer), has been shown to be in possession of Abdur Rashid.
There is nothing on the record as to how Abdur Rashid intruded and came into possession of the suit land. This fact alone is sufficient to prove that defendants/appellants have encroached upon land which has been coming in possession of the plaintiffs/respondents as co-sharer of the same.
There is no denial of the fact that a co-shares in possession is entitled to retain its possession and can seek its possession he has been disposed from the land except through legal process. Relince in this respect can be placed upon Azam Khan Vs. Azad Khan etc. 1986 Law Notes 740), Sher A.I Vs. Khaki Jan and 25 others (1988 CLC 1104), and Abdur Rehman and 7 others Vs. Syed Sultan All Shah and 5 others (1998 SCM R 1589).
9. It may also be mentioned here that the stand of learned cowls. for the appellants has been that suit for possession was not maintainable as possession of one co- sharer is possession on behalf of all co-sharers and the only remedy available under these circumstances is to file a suit for partition. Learned counsel for the appellants has placed reliance upon Munshi and 2 others Vs. Muhammad Shafi and 3 others (Law Notes 1966 Lah. 58), Fazil etc. Vs. Manzoor Hussain etc. (NLR 1978 Civil 629) and Abdullah and others Vs. Muhammad Nawaz and others (1994 SCM R 83). The authorities referred by the learned counsel are not applicable in the facts in hand as the possession in the said cases was of un-partitioned land whereas in the instant case, the plaintiffs/respondents have been coming possession of their respective land since years as such their possession wa not possession simpliciter, but they were in possession consequence o partition.
10. The up shot of above discussion is that the learned appellant Court has rightly returned the findings, appealed against. There is no force in these appeals and the same are hereby dismissed.