SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 8-2-1999, whereby the decree passed in favour of the plaintiffs- appellants by the trial Court was set aside and the suit filed by them was dismissed.
2. The brief facts of the case are that Khan Wali, the predecessor-in---interest of appellants Nos. l to 8 and another filed a suit for possession of the land in dispute, measuring 2 Kanals, 7 Marlas, situate in village Surakhi, Dadyal, in the Court of Sub-Judge alleging that they were deprived of the possession of the suit land forcibly 2 or 3 years prior to the institution of, the suit. It was further alleged by them that the suit land has fallen to their share as a result of private partition. Their suit was decreed and appeal to the District Judge also failed. The High Court set aside the judgments and decrees of the Courts below mainly on the ground that as the parties were co---sharers in the land, the suit for 'Khas' possession was not maintainable and the remedy with the predecessor-in- interest of appellants, herein, was to seek the partition of the suit land.
3. Ch. Muhammad Anwar, Advocate, the learned counsel for the plaintiffs-appellants, has argued that the High Court was not correct in relying upon the judgment of this Court in Sultan A.I's case [Sultan A.I v. Walayat and others Civil Appeal No.28 of 1987), decided on 28-11-19881 because in the instant case the possession of the land was sought on the basis of title as a result of private partition between the parties. In alternative,. He has argued that even if it is assumed for the sake of argument that if the suit on the basis of title was not competent, the same may be treated a suit under section 9 of the Specific Relief Act and in that eventuality, the judgment of the High Court would be without jurisdiction because no appeal was competent to the High Court. The learned counsel has argued that even if it is assumed that the parties are co-sharers in the land, the plaintiffs were entitled to the restoration of possession, because the title of the land vested in them as a result of private partition.
4. Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the authority relied upon by the High Court fully applies to the facts of the case in hand. He has further submitted that private partition does not invest a party with an exclusive title and the property remains joint till the same is partitioned by metes and bounds. He has further submitted that the suit for possession was filed by the plaintiffs on the basis of ownership and not under section 9 of the Specific Relief Act. Thus, he has argued that it is not open for the appellants to argue at this stage that if the plaintiffs are not regarded to have acquired the exclusive title to the suit land through private partition, the suit filed by them may be treated under section 9 of the Specific Relief Act.
5. We have given due consideration to the matter. It is admitted fact that the parties are co- sharers in the suit land. However, each of the parties claims that, the suit land had fallen to its share in pursuance or private partition. It may be observed that private partition does not change the nature of the joint property and the same remains joint until and unless it is partitioned by the Revenue Authorities according to the Land Revenue Act. Thus, if the parties were co-sharer in the suit land, as they were, plaintiffs were not entitled to bring a suit for possession because they were already in possession of a part of the survey number which is also inclusive of the suit land. The contention of the learned counsel for the appellants that the suit may be treated under section 9 of the Specific Relief Act is not tenable because it is not a suit filed under section 9 of the Specific Relief Act. Even otherwise, it has been asserted in the plaint that the plaintiffs were dispossessed 2/3 years prior to the institution of the suit. A suit under section 9 of the Specific Relief Act, can be instituted within six months of dispossession. Thus, even the aforesaid alternative plea does not help the appellants in the present case because they have mentioned in the plaint that they were dispossessed 2/3 years earlier.