The judgment and decree dated 21-6-1997 passed by the learned Additional District Judge, Charsadda has been called in question by Safdar Ali and others through this civil revision petition.
Through the impugned judgment the learned Additional District Judge accepted the appeal of the respondent and set aside the judgment and decree dated 28-3-1992 whereby the suit of the petitioners was decreed by the learned Civil Judge, Charsadda.
2. The short facts relevant to the instant revision petition are that the petitioners tiled a civil suit against Municipal Committee, Charsadda seeking a declaration to the effect that the petitioners/plaintiffs are the owners in possession of land measuring 96 Kanlas, 14 Marlas bearing Khasra Nos.2379/143 and 193 and the respondent has no right to interfere into the possession of the petitioners or to make any park for recreation on the suit-land. Permanent injunction was also sought and alternatively a prayer for possession was addedly solicited. The suit was contested by the respondent. The written statement was filed and the pleadings of the parties generated 7 issues besides the relief. The trial ended in a judgment and decree in favour of the petitioners.
However, on appeal tiled by the respondent the learned Additional District Judge set aside the judgment and decree of the trial Court and the suit of the petitioners was dismissed vide his judgment and decree dated 21-6-1997.
3. The learned counsel appearing for the petitioners has vehemently argued that the judgment and decree of the learned Appellate Court is not warranted in law as the suit of the petitioners was dismissed on purely technical grounds; firstly, for the reasons that the disputed land is 'Shamilat- Deh' (village common property) wherein other owners of the village are also co-sharers but the suit has not been instituted in the manner provided by Order 1, rule 8 of C.P.C. Secondly that certain land has been recorded in the Revenue papers as ' Maqbooza-Ahle-Islam' , Ghair Mumkin Qabaristan' and in this view of the matter the permission for filing of the suit should have been obtained from the Advocate-General. The learned counsel contended that sufficient evidence has been produced by the petitioners to establish that the petitioners being co-sharers in the 'Shamilat' of the village are in possession of the suit-land. In this respect Fard-Jamabandi from. The year 1961-62 up to 1985-86 was emphatically referred to wherein the petitioners are continuously recorded in possession in the column of cultivation and in the column of Laghan "Bila--Laghan- Bawaja-Qabza". The said record is Exh.P.W-1/1 to Exh. P.W-1/21. The Khasra Girdawaris Exh. P.W-1/22 (4 sheets) from Kharif 1977 till Rabi 1989 Exh. P.W-1/22 has also been referred to wherein Safdar Ali etc. Have been recorded as in cultivating possession. Besides the Revenue Record the learned counsel has also referred to the statement of D.W.1 Abdul Bari representative of the Municipal Committee who appeared as a sole witness for the respondent and has to a great extent accepted the claim of the petitioners. She on the point of applicability of Order 1, rule 8, C.P.C. Has relied on the judgments reported as 1983 SCMR 587 and 1979 CLC, SC (AJ&K) 788 and contended that Order 1, rule 8, C.P.C. Is a provision which is enabling and permissive and not mandatory in nature. She maintained that where the rights of a co-sharer being in possession is violated he can bring the suit for the redressal of his grievances in his individual capacity independently of others having common cause of action with him. While answering the second ground which prevailed with the learned Appellate Court, i.e., that the petitioners/plaintiffs were required to have obtained permission from the Advocate-General in terms of section 91. She urged that the suit of the petitioners neither has any nexus with the area described as 'Maqbooza-Ahle-Islam' nor such an area is under dispute. She explained that it is only an area of 48 Kanals which was encroached upon by the Municipal Committee for the construction of a public park is the disputed area which provenly was in possession of the petitioners and enjoying its products in the form of "Barsanday".
The learned counsel for the petitioners also argued that before encroaching upon the suit-land the respondent-Municipal Committee on 7-4-1985 had issued a notice to the effect that the Municipal Committee is going to convert the suit land into a public park and if anybody has any objection to the said conversion he should submit his written objection to the respondent. The petitioners accordingly tendered their objection to the respondent on 20-4-1985 through Syed Marghoob Ali Ashraf, Advocate, Charsadda but no action was taken on the objection of the petitioners. The copy of the objection is Exh. P. W-2/3 while a copy of the notice inviting objections is Exh. P. W-2/2.
4. On the other hand, the learned counsel appearing for respondent-Municipal Committee Charsada has argued that the park on the disputed land was constructed by the respondent for the public welfare and the respondent itself has not achieved any benefit from the park. He argued that some residents of the locality had made an application to the Chairman of the Municipal Committee to take the suit arFa into its control as the land being a village 'Shamilat' was likely to create disputes and disturb the law and order situation. Only a photostat copy of the said application was produced in defence as Exh. D.W.1/2. He defended the impugned judgment and decree by arguing that the petitioners should have filed a suit in representative form under Order 1, rule 8, C.P.C. And that permission from the Advocate-General in terms of section 91 was imperative condition for the filing of the suit. No judgment was cited in his defence. When the learned counsel for the respondent was asked to meet the judgments cited by the learned counsel for the petitioners the only argument advanced was that it is up to this Court to follow the cited judgments or not. The argument is highly misconceived as the A High Court is Constitutionally bound to follow the judgment of the august Supreme Court.
5. I have heard the arguments of the learned counsel from both sides and perused the record. In AIR 1920 Patna 781 it was observed that a person who is in possession of land is entitled to, maintain a suit for declaration of title and confirmation of possession as against a person who has neither title nor possession and such a suit is not liable to dismissal merely because a third person who is alleged to be interested in the land has not been impleaded as a party. In AIR (32) 1945 Madras 506 Leach Chief Justice speaking for the Bench on the point of possessory title expressed the view that person in possession is entitled to declaration and possession against the trespasser. It was observed that lawful possession of land is sufficient evidence of right as owner as against a person who is merely a trespasser and former can obtain a declaratory decree and an injunction restraining the wrongful doer from interfering with his possession. Again in AIR (33) 1946 Oudh 221 it was observed that a co-sharer is entitled to a share in every inch of land comprised in the property. If a trespasser interferes with his possession, he is certainly entitled to bring an action against him in order to defend his right of possession. In such cases no question of right of other co-sharers and the plaintiff who claims to be the sole owner falls to be determined. The only point that has to be determined is whether the plaintiff is entitled to retain possession of the property in dispute against the defendant who is a rank trespasser. His claim to eject the trespasser cannot, therefore, be affected by his failure to implead other co-sharers. In PLD 1955 Lah. 31 the following observations are materially relevant to the present controversy. It was observed in the following diction:-- "The reason of the rule is that since a trespass is a wrong to another's possession, any person who is in possession, actual or constructive, can sue to eject a trespasser, and every co-sharer has interest in, and possession over, every particle of the joint property insomuch so that when the property is in the actual possession of one co-sharer his possession is deemed to be the possession of the other co-sharers as well. Since a co-sharer's interest and possession extends to the entire joint property he is entitled to eject a trespasser from the whole of it. In cases where this rule has been deviated from it was overlooked that ir, absence of a partition there is no specific portion of the property which a co-sharer can recover as his own and no one can be compelled to co-share joint property with a stranger or trespasser. It was held that co-sharer one or several may sue to eject a trespasser and claim possession for use and occupation."
In 1979 CLC '788' (SC A.I&K) while discussing the provision of Order 1, rule 8 it was held that a proprietor having a right of share. in `Shamilat-Deh' can bring a suit in individual capacity in respect of an injury to his right. Order 1, rule 8, C.P.C. is an enabling provision and does not necessarily require a person or persons to bring a suit under this rule if such person or persons undertake to sue in their individual capacity and not in a representative capacity, any proprietor, who has a right to share in Shamilat Deh, can bring a suit in respect of an injury to his right, even though such a sale (as was in the said case) is injurious to the other proprietary body as well. The august Supreme Court of Pakistan has, however,* settled the law on the subject in a judgment delivered in case of 'Haji Saleh Muhammad and 2 others v. Haji Jumma Khan Agha and 4 others" reported in 1983 SCMR 587 wherein it was observed thus:-- "The arguments based on the provisions of Order 1, rule 8, Code of Civil . Procedure may next be disposed of which was not very seriously pressed before us. The contention that since the interest of the whole tribe was involved in the controversy being the subject-matter of the proceedings before the High Court it was incumbent upon the High Court to adopt the procedure provided for in Order 1, rule 8, C.P.C., is wholly untenable. The provisions of rule 8 are only enabling and permissive in nature and it is not mandatory that wherever there are several persons interested in a suit or proceeding it should be interested in representative capacity. Such view has been taken in a number of reported cases including Rangal Shah T. Mula Jandal (PLD 1960 Kar. 512), in which it was held that if a person has a right to action, he can proceed independently of the others who may be having a common cause of action with him, and he does not at all stand in need of including others or to prefer a representative suit. No exception can be taken to this view. Article 199 of the Constitution provides a specific remedy to an aggrieved person against the specified persons therein in respect of inter alia, any act done or proceeding taken within the jurisdiction of the concerned High Court and such an aggrieved person is under no obligation to implead in the proceedings others having a common cause of action with him. The contention has, therefore, no substance."
6. In the instant case the land in dispute in the column of ownership and in all the Jamabandis referred above has been recorded as {{URDU TEXT}} while in column of cultivation Safdar Ali etc. Have been uninterruptedly recorded in possession. The Khasra Girdawaris Exh. P.W.-1/22 consisting 4 sheets for the years 1977-78 till 1985-86 also eloquently indicate the cultivating possession of Safdar Ali etc. Besides the Revenue Record the statement of D.W.1 Abdul Bari Jan is also significant. He has admitted that the suit-land is 'Shamilat-Deh'. The relevant segments of his cross-examination are reproduced below:-- {{URDU TEXT}}
7. The Revenue Record and the statement of D.W.1 is sufficient to prove that the petitioners remained in cultivating possession of the suit-land. Admittedly the suit land has not been acquired by the Municipal Committee, Charsadda according to law. The entry of the respondent on the suit-land is synonymous to encroachment upon the property of others.
Admittedly no compensation has been paid by the respondent. Thus the respondent had no right to enter upon a land in the lawful possession of a citizen. No doubt a photostat copy of an application purportedly written by the residents of the area has been relied upon by the respondent but none of the signatories had appeared before the Court to record statement in support of the said application.
8. In view of the above-quoted case-law and seeking guidance from the judgment of the august Supreme Court (1983 SCMR 587) I safely conclude that provision of Order 1, rule 8, Civil Procedure Code are only enabling and permissive and not mandatory in nature. Suit is not necessarily to be instituted in representative capacity in a case of there being several persons interested in suit or proceedings and any person having a right to action can competently proceed independently of others to defend his right. The learned Appellate Court was, therefore, not justified in dismissal of the suit on the ground of non--compliance of Order 1, rule 8. Civil Procedure Code.
9. On the point of non-compliance of section 91, Civil Procedure Code I may observe that dispute with the respondent was to the extent of 48 Kanals of land which was illegally occupied by it whereas the total suit area is 96 Kanals. Neither the plaint nor the written statement indicates any dispute regarding the area described as 'Maqbooza-Ahle-Islam'. Therefore, in such circumstances there was no need to involve the Advocate-General in the controversy.
10. Consequently, I allow this revision petition and pass a decree for possession of 48 Kanals of land which was encroached upon by the respondent. Since no official partition has taken place and the other village owners are also co-sharers in the Shamilat land, therefore, the entitlement of parties to the ownership in Shamilat shall remain restricted to their proportionate shares and this judgment shall not in any manner affect the rights of other co-sharers of the village body in 'Shamilat-Deh'. No orders as to costs.