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 Afsar filed suit for possession for land measuring 18 Kanals out of Khasra No.279/1, for land measuring one Kanal out of Khasra No.281/1 and 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:-----
(1) 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 P. W.1 Manzoor-ul-Haq Girdawar, P.W.2 Fazal Dad, and P.W.3 Rang.Baz learned counsel for the plaintiffs/respondents also brought on record documents Exhs. P.3 to P.16 in support of their stand and thereafter, closed the evidence. In rebuttal the defendants/appellants examined D.W.1 Muhammad Sharif. The trial Court also examined Ch. Muhammad Sarwar as C.W.1.
4. After going through the evidence produced by the parties the trial Court dismissed the suit of the plaintiffs/respondents vide judgment and decree, dated 23-2-1976. The plaintiffs/respondents felt aggrieved and filed an appeal which was accepted by the learned Additional District Judge, Rawalpindi vide judgment and decree, dated 24-10-1978. The defendants/ appellants have felt aggrieved of the said judgment and decree filed the instant R.S.A.
5. Alongwith this appeal R.S.As. Nos.809 of 1979, 820 of 1979 and 821 of 1979 have also been filed. As all these Regular Second Appeals arise out of the 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 if 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 C.W.1. They have also brought on record documents Exhs.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. They simply relied upon the statement of D.W.1 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 Exh.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 defendants/appellants. The said possession stands further fortified by copy of Jamabandi for the A year 1962-63 Exh.P.11 and Jamabandi for the year 1955-56 Exh.P.12. So far as the stand of Muhammad Afsar plaintiff/respondent is concerned a reference can be made to Jamabandi for the year 1955-56 Exh.P.5--Jamabandi 1962-63 Exh.P.6 and Jamabandi 1966-67 Exh.P.4. All these Jamabandis clearly show that Muhammad Afsar has been coming in possession of the suit land appearing in Khasra No.283 in the capacity of co---sharer. So far as A.I Dad plaintiff/respondent is concerned he has claimed to be himself in possession of Khasra No.280 of which a portion has been encroached upon by the defendants/appellants: To support his contention a reference can be made to Jamabandi for the years 1955-56 Exh.P.7 anti) 1962- 63.Exh.P.8. These documents prove that A.I Dad has been coming in possession of Khasra No.280 being a co-sharer of the same. So far as Fazal Dad plaintiff/respondent is concerned, he 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 years 1955-56 Exh.P.9 and 1962-63 Exh.P.10. Besides these documents the plaintiffs/respondents have also brought on record copy of Khasra Girdawari Exh.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 Nos.278, 279, 280 and 283 of which Muhammad Akbar, Fazal Dad, A.I Dad and Muhammad Afsar have been coming as Hisadar (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-sharer in possession is entitled to retain its possession and can seek its possession if he has been dispossessed from the land except through legal process. Reliance in this respect can be placed upon Azam Khan v. Azad Khan etc. PLD 1986 Lah. 275, Sher A.I v. Khaki Jan and 25 others 1988 CLC 1104, and Abdur Rehman and 7 others v. Syed Sultan A.I Shah and 5 others 1998 SCMR 1589.
9. It may also be mentioned here that the stand of learned counsel 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 v.
Muhammad Shafi and 3 others Law Notes 1966 Lah. 58, Fazil etc. v. Manzoor Hussain etc. PLD 1979 Note 9 at p.6, and Abdullah and others v. Muhammad Nawaz and others 1994 SCMR 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 unpartitioned land, whereas in the instant case, the plaintiffs/respondents have been coming in possession of their respective land since years as such their possession was not possession simpliciter, but they were in possession consequence of partition.
10. The upshot 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.