PLJ 2015 Peshawar
AMJAD ALI and 7 others--Petitioners
versus
ANWAR SHAH & 10 others--Respondents
C.R. No. 1866 of 2010, decided on 25.2.2015.
----S. 115--Civil revision--Suit for possession through ejectments, dismissal for want of proof--Dual status as
legal heirs of tenant as well as purchaser of property--Tenancy could not be
proved through confidence inspiring evidence nor payment of khak
shora--Validity--Both of status were being inconsistent
with each other, so long has not taken place by meat and bound and as such
moment property acquired, relation of tenant and landlord ceased to exist
however in instant case neither respondents are tenant under plaintiff nor
plaintiff claims as such and to extent of father of respondent claim of
plaintiff as his tenant has not been established and denied by tenant/father of
respondents as evident from suit filed by him claiming adverse possession--Petition
was dismissed. [P. 178] A
Date of hearing: 25.2.2015.
Judgment
This revision petition has been preferred against the
order/judgment and decree dated 9.7.2010 passed by learned Additional District
Judge-XII, Peshawar, whereby while accepting the appeal of respondents the
order/judgment and decree dated 26/11/2009 passed by learned Civil Judge,
Peshawar, set aside and the suit of the petitioners has been dismissed for want
of proof.
Arguments heard record perused.
2. A perusal of record
reveals that a suit for possession through ejectment
was filed by predecessor of petitioners namely Khalil
Khan against the predecessor of respondents namely Haji
Yar Badshah in respect of
suit house on the ground that he was excusive owner of the suit house and the
predecessor of defendants was tenant under him on payment of 'Khaak Shora'. It was also averred
that a suit was filed by defendants claiming ownership which was dismissed on
20.6.1990 and appeal filed by him also met the same fate on 19.10.1993. The
defendant put his appearance who was directed to file written statement and
prior to that the four sons of defendant (present respondents) moved an
application for impleadment as party on the ground
that they have acquired the land by dint of various mutations and as such
became co-sharere in the property. Their plea was
turned down and revision filed by them was also dismissed and the case was sent
back to the trial Court. In the meanwhile defendant Haji
Yar Badshah died and the
present respondents were arrayed as party in the capacity of legal heirs of
defendant, who filed written statement on 26.7.1999 claiming therein that they
are co-sharers in the property by dint of Mutations No. 511 to 514 attested on
29.6.1993 and registered deed attested on 02.12.1993 and cannot be ejected
through instant suit.
3. Learned counsel for
petitioners referred to his better statement and submitted that original defendant
has not filed written statement and the plea of respondents to be impleaded as party was turned down by the Courts below
however lateron they are arrayed as party in the
capacity of legal heirs of defendant and as such could not claim the
co-ownership in the suit property nor the plaintiff can be non-suited on this
score.
4. It is pertinent to
mention that the ejectment petition has been filed on
3.3.1994 whereas the respondents have acquired title in the suit property
through mutation on 29.6.1993 and sale deed dated 2.12.1993,much
prior to institution of the instant suit and cannot precluded to agitate their
title before the Court despite the fact that their plea of impleadment
as party in individual capacity, turned down by the Court. Learned counsel for
petitioner took the plea that there are two houses having an intervening wall
which has been demolished by respondents which is misconceived, as no evidence has
been produced to this effect. The plaint, better statement filed by plaintiff
and the statement of petitioner as PW.1 reveals that admittedly Yar Badshah deceased (original
defendant) was residing in disputed house since long. He deposed that Yar Badshah was residing prior to
his memory as he was not born at that time. He further admitted that the exact
measurement of the house is not known to him and has given the details that
there are four Kotas and one veranda in the suit
house which was constructed by Yar Badshah deceased. It is nowhere mentioned that there were
two houses, one purchased by respondents and other was in possession of father
of respondent (original defendant) as tenant. The previous litigations between
the predecessors of the parties were to the effect that Yar
Badshah in Suit No. 127/1 claimed adverse possession
and his suit was dismissed as the plea of adverse possession was no more available
due to repeal of relevant law.
5. The plaintiff claims
ownership on the basis of revenue record which reveals that the disputed
property bearing Khasra No. 356/71 measuring 5 Kanals, 2 Kanals Ghair Mumkin Abad and 3 Kanals Nehar kind of land. Learned counsel for petitioners was
unable to convince the Court as how the respondents could be ejected and from
which portion of the house as the record is silent as to which of the portion
is in possession of original defendant/tenant father of present respondent and
which of the portion has been purchased by present respondents by dint of
mutation and sale deed. It is pertinent to mention that one Hussain
s/o Mashal who has been shown as Hissadar
owner in column of cultivation to the extent of 2 Kanals in the suit property has
sold 10 marlas
of land in favour of respondents and to this effect a
suit was also filed in the Court by said Hussain Khan
against the respondents Bearing No. 188/1 on 5.7.2010 wherein compromise was
effected and was dismissed as withdrawn on 30.10.2010, which shows that they
were inducted by their vendor Hussain who happens to
be the son of Mashal, Hissadar
owner in possession of the suit house. The plaintiff has not been able to prove
his claim in the suit house rather based his claim on the revenue record
wherein Ghair Mumkin Abadi has been shown to the extent of 2 Kanals. Even the existence of
house in the said Khasra number has not been proved
through cogent evidence. The format of the suit is defective and no proper
remedy has been sought by the plaintiff and mere suit for ejectment
would not resolve the controversy between the parties especially when the
respondents have dual status as legal heirs of the tenant (now dead) as well as
purchaser of the property and in
such eventuality the previous status
would be converted into that of later one as tenancy could not be devolved in
inheritance especially when it is not proved through confidence inspiring
evidence nor the payment of 'Khak Shorna'
has been established. The plaintiff has not brought on record any receipt to
this effect. Even otherwise both of the status were being inconsistent with
each other, so long has not taken place by meat and bound and as such the
moment property acquired, the relation of tenant and landlord ceased to exist however
in the instant case neither the respondents are tenant under the plaintiff nor
the plaintiff claims as such and to the extent of father of respondent the
claim of plaintiff as his tenant has not been established and denied by tenant/father
of respondents as evident from suit filed by him claiming adverse possession.
6. The learned Court of
appeal has decided the list pending before it with conscious and diligent
appreciation of mind, warrants no interference.
For the aforesaid reasons, the instant petition being devoid of
merit is dismissed.
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