' Respondent/plaintiff filed suit for possession qua the house subject-matter of this petition wherein she contended that she was widow, that on two Marlas Estate land she constructed a room and four walls, that she had been residing there for the last 16 years, that she had obtained connection from WAPDA and that two years prior to the filing of the suit she was deprived of the said house fraudulently by the petitioner/defendant. The suit was contested and in terms of the divergent pleas following issues were framed:---
(1) Whether the plaintiff has no cause of action?
(2) Whether the disputed property is still owned by the Provincial Government and Province is a necessary party?
(3) Whether the plaintiff is estopped to file this suit?
(4) Whether the suit is false, frivolous, vexatious and the defendant is entitled to special costs?
(5) Whether the plaintiff is owner of the disputed property?
(6) Whether the plaintiff is entitled to mesne profits and possession of the suit property?
(7) Relief.
2. The suit was dismissed on13-6-1991. Respondent-plaintiff s appeal was allowed by the Additional District Judge vide order, dated 30-3-1992, in terms of which, the learned trial Court was directed to decide Issues Nos.3 and 4 afresh. With regard to Issue No,5 the learned Appellate Court observed as under:-- "Apart from it the Government has made many declarations in which possessory rights on the State Land are recognized of certain persons and also has made declaration to give them proprietary rights. On this score the plaintiff has a possessory title in the house in dispute."
3. Pursuant to remand the learned trial Court decided the issue afresh vide judgment and decree, dated 17-5-1992 in favour of the respondent/plaintiff and held that the latter had possessory title the petitioner/defendant was directed to pay the rent/mesne profits at the rate of Rs,100 P.M. From March, 1986 till May, 1992 of the total amount so calculated came to Rs,7,400. This order was challenged in appeal and the learned Additional District Judge, Sahiwal dismissed the same vide impugned order, dated 9-10-1994.
4. Learned counsel for the petitioner submitted that the impugned order is not sustainable as the suit of the respondent/plaintiff itself was time-barred, that the land on which the house is constructed is owned by the Provincial Government, that as respondent/plaintiff had filed suit under section 9 of the Specific Relief Act no appeal was competent and order, dated 30-3-1992, remanding the case for fresh decision on respondent's appeal was bad in law and, therefore, all the subsequent orders are void ab initio.
5. Learned counsel for the respondent/plaintiff, on the other hand, submitted that the suit filed by the respondent/plaintiff was a suit under section 8 of the Specific Relief Act, that the appeal was provided under the law and the case had rightly been remanded for a fresh decision qua Issues Nos.3 and 6 and so far as Issue No,5 was concerned the finding given in the order, dated 30-3-1992, having attained finality the same cannot be allowed to be interfered with through this Constitutional petition. In support of the submissions made he relied on "Ramdayal and others v.
Mt. Saraswa ti and another" (AIR 1927 Allahabad 526).
6. Heard.
7. The law provides a prompt relief under section 9 of the Specific Rene Act to a person who has been dispossessed of his property but to bring the case within the ambit of this provision the following conditions have to be met, namely:---
(i) That the plaintiff was in possession;
(ii) that he had been dispossessed by the defendant;
(iii) that the dispossession is without due process of law; and
(iv) that the dispossession took place within six months of the suit.
8. The relief provided in section 8,however, stipulates distinct jurisdictional facts. This section mandates that a person seeking recovery of possession of an immovable property on the basis of a title can file a suit for ejectment in the manner prescribed by the Code of Civil Procedure. In the former section, there is no reference of title of the person dispossessed with regard to the property in question and the suit has to be filed within six months of dispossession. In the latter section (section 8) however, the expression used in "a person entitled to" and there is no time limit within which the suit can be brought. In the instant case the respondent/plaintiff had alleged that two years prior to the filing of the suit he had been dispossessed of the house in question and that she had raised the construction on the State land and was living there for the last more than 16 years.
Thus the suit filed by the respondent/plaintiff was not strictly a suit under section 9 of the Specific Relief Act but under section 8 of the same. The order dismissing respondent's/plaintiff's suit, dated 13-6-1991, was an appealable order, appeal ,.Vas filed and the learned Appellate Court vide order, dated 30-3-1992, allowed the same and directed fresh decision with regard to Issues Nos.3 and 6 but decided Issue No,5 in favour of the respondent/plaintiff. The finding on Issue No,5 has not been challenged by the petitioner, in terms of which, it has been held that respondent/plaintiff, "has a possessory title in the house in dispute". The argument of the learned counsel that respondent/plaintiff's appeal was incompetent is without any substance. After the remand the trial Court had decided Issues Nos.3 and 6 in favour of the respondent-plaintiff and the judgment and decree of the learned trial Court has been upheld by the learned Additional District Judge vide order, dated 9-10-1994, which is impugned in this petition. The learned Appellate Court without discussing the evidence or the merits of the case proceeded to dismiss petitioner's/defendant's appeal shortly on the grounds that since the suit filed by respondent/plaintiff was under section 9 of the Specific Relief Act, therefore, no appeal was competent. This finding of the learned Appellate Court is not tenable because it has already been discussed above that respondent-plaintiff's suit was primarily a suit under section 8 of the Specific Relic Act and not under section 9 and, therefore, the second appeal on which the impugned ()Trier, dated 9-10-1994 was passed was depetent.
Learned counsel for the petitioner attempted to argue that since the appeal was not decided on merit this Court should remand the case to the Additional District Judge to decide the matter afresh. This prayer is not tenable at this stage firstly because remanding the case after six years would further prolong the agony of the parties and secondly the matter can be decided on the basis of evidence, copies of which, have been annexed with the petition. Coming to the findings given on Issues Nos.3,5 and 6 admittedly, petitioner never challenged the finding on Issue No,5 given by the learned Additional District Judge in the order, dated 30-3-1992, at any stage. The same, therefore, has attained finality and it stands conclusively proved that respondent/plaintiff has possessory rights qua the house in dispute. That being so, the findings on Issues Nos.3 and 6 by the learned trial Court in the judgment and decree, dated 17-5-1992, are unexceptional. On Issue No,3 there is evidence that the house was constructed by the respondent-plaintiff which was not even denied before this Court during arguments by petitioner's learned counsel. There is evidence to the effect that the petitioner had purchased the superstructure of the house vide Exh.D-1from Naeem Akhtar Khan who had defective possessory ' title. The plea of estoppel, therefore, was rightly dismissed by the learned trial Coati On Issue No,6 there is evidence that petitioner/defendant was in illegal possession for the last more than two years before filing of the suit and the amount of rent/mesne profit calculated by the trial Court has neither been challenged specifically in the body of the petition nor during arguments.
' For what has been discussed above, I find no merit in this petition which is dismissed.