Suit for Possession through Ejectment

PLJ 2015 Peshawar 175

Present: Abdul Latif Khan, J.

AMJAD ALI and 7 others--Petitioners

versus

ANWAR SHAH & 10 others--Respondents

C.R. No. 1866 of 2010, decided on 25.2.2015.

Civil Procedure Code, 1908 (V of 1908)--

----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

Mr. Misbahullah, Advocate for Petitioners.

Mr. Mazullah Barkandi, Advocate for Respondents.

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.

(R.A.)  Petition dismissed

Judgment on Section 8 of Code of Civil Procedure

PLJ 2014 SC 835
[Appellate Jurisdiction]

Present: Nasir-Ul-Mulk, Mian Saqib Nisar & Amir Hani Muslim, JJ.

HAZRATULLAH and others--Appellants

versus

RAHIM GUL and others--Respondents

Civil Appeal No. 172 of 2005, decided on 7.1.2014.

(Against the judgment dated 28.4.2003 of the Peshawar High Court, Peshawar passed in Civil Revision No. 669 of 1994)

Specific Relief Act, 1877 (I of 1877)--

----S. 8--Civil Procedure Code, (V of 1908), O. IX, R. 13--Sale deed was not challenged in earlier suit--Ex-parte decree was valid having legal effects--Modes and mechanism for setting aside such decree never assailed through any direct proceedings--Validity--In a suit under Section 8 of Specific Relief Act, 1877, declaration of entitlement is an inbuilt relief claimed by plaintiff of such a case--Once plaintiff is found to be entitled to possession, it means that he/she has been declared to be entitled, which includes declaration of title of plaintiff qua property, and that is integrated into decree for possession; and when she had attained decree for possession and found entitled to possession in terms of Section 8, undoubtedly sale-deed irrespective of it not being directly challenged, would render sale-deed as nugatory and redundant; because title shall be valued on basis of judicial verdict i.e. decree, and sale-deed shall not be a hindrance in her way.  [P. 837] A

Mr. Shakil Ahmed, ASC for Appellants.

Mr. M. Ismail Fehmi, ASC for Respondent No. 1.

Bakhtiar son of Respondent No. 7.

Date of hearing: 7.1.2014

Judgment

Mian Saqib Nisar, J.--This appeal with the leave of the Court dated 3.3.2005 entails the facts:--that the appellants' side filed a suit for declaration claiming ownership of the suit land measuring 2 kanals and 10 marlas bearing Khasra No. 1143 situated in mouza Nodeh Bala on the basis that Qudratullah, the father of the appellants vide sale-deed dated 19.4.1938 had purchased 28 kanals and 9 marlas of land from Mst. Marjan, the original owner (the predecessor-in-interest of the respondents) having differentkhasra numbers including the khasra number mentioned above and a Mutation No. 566 dated 11.12.1944 was also sanctioned in his favour. This suit was contested by therespondents which was decreed by the trial Court. The first appeal of the respondents failed but in the revisional jurisdiction, the learned High Court by setting aside the two verdicts of the Courts below dismissed the appellants' suit.

2.  The other important factual aspect of the matter is that Mst. Marjan filed a suit perhaps in the year 1939 for possession against Qudratullah and some others with regard to, inter alia, the land, subject matter of this suit. Qudratullah was proceeded ex-parte in this matter and the suit was decreed on 13.1.1940 to the following effect:

"This is a suit for possession of the land in suit on the objections that pltff is the owner of the land in suit and that defdts have taken illegal possession. Defdt 1 & admit their claim. Defdts No. 2 & 3 are ex-parte. From the evidence produced the claim is proved prima-facie as against them also. I therefore grant pltff a decree for possession of the land in suit with costs against defdt."

It may also be mentioned here that in an earlier round of litigation arising out of the present suit between the parties with respect to the suit land, the matter had come up before this Court in Civil Appeal No. 189-P of 1990 which was decided by this Court vide judgment dated 6th December, 1992. In the course of hearing of that appeal (CA.189-P/1990) which was filed by the respondents' side, who were the appellants therein, they wanted to place reliance upon the judgment dated 13.1.1940 (supra) to which objection was raised by the appellants of the present case (who were the respondents in that appeal), however, this Court considering the above aspect passed the judgment, the relevant operative part of which reads as below:

"Learned counsel for the respondents acting as much fairly as was possible for him stated that even if it is possible for him and his clients to admit the authenticity of the fresh documentary material brought before this Court, it could not be possible to finally dispose of the lis between the parties without affording them further opportunity of adducing evidence with or without amendment of pleadings. He therefore sought remand of the case to District Judge. Learned counsel for the appellant agreed to this proposal. We order accordingly. The appeal is allowed and the impugned judgment is set aside and the case is remanded to District Judge for the decision of appeal afresh after treating the fresh material placed before and admitted in evidence by this Court, as material before it. The parties shall also be afforded further opportunity to adduce evidence."

3.  After the remand the appellate Court did not follow the noted judgment of this Court in letter and spirit and dismissed the appeal of the respondents, however the learned High Court in its revisional jurisdiction when invoked by the respondents has substantially relied upon the judgment dated 13.1.1940 and has reversed the two decisions of the Courts below. It has been argued by the learned counsel that in the suit for possession filed by Mst. Marjan culminating into the decree dated 13.1.1940, she had never challenged the sale-deed dated 19.4.1938 of the suit land in favour of Qudratullah, their predecessor-in-interest, therefore, such sale-deed is still intact and resultantly, the appellants are/shall be the owners of the property in question. It is further argued that the judgment dated 13.1.1940 was never produced in evidence by therespondents, therefore, the learned High Court has erroneously relied upon the said judgment.

4.  Heard. As far as the second plea of the appellants' learned counsel is concerned which we take up first, suffice it to say that from the judgment of this Court dated 6.12.1992 (portion whereof has been reproduced above), it is clear that including all such documents which the respondents produced before this Court were made part of the evidence of the case and the matter was remanded to the first appellate Court to decide the same (the appeal of the respondents) afresh on the basis of such material, however, this Court also allowed opportunity to the parties to lead any further evidence, obviously if they so desired. The appellants did not adduce any further evidence to rebut the judgment dated 13.1.1940; it is also not controverted at any stage of the proceeding if Qudratullah was not a party to that matter; or that the subject matter of the decree dated 13.1.1940 was not in respect of the suit land (land involved herein), therefore the plea has no force. With regard to the other argument that the sale-deed dated 19.4.1938 was not challenged in the earlier suit filed by Mst. Marjan (the predecessor-in-interest of the respondents), coupled with the appellants' attack that the decree dated 13.1.1940 was ex-parte; it is held that an ex-parte decree is valid, having some legal effects and as good as a contested decree, with the exception that the modes and mechanism for the setting aside such decree may be more; in any case, after having attained the knowledge of that decree, the appellants never assailed it (decree dated 13.1.1940) through any direct proceedings, i.e. either under Order IX Rule 13, CPC or any other remedy available to them under the law, thus for all intents and purposes, the said judgment and decree had attained finality and would be binding upon the appellants.

As far as the plea that Mst. Marjan had never challenged the sale-deed dated 19.4.1938 in favour of Qudratullah in the suit, but only filed a suit for possession, it may be held that in a suit under Section 8 of the  Specific  Relief  Act,  1877,  the  declaration  of  the entitlement is an inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to the possession, it means that he/she has been declared to be entitled, which includes the declaration of title of the plaintiff qua the property, and this is integrated into the decree for possession; and when Mst. Marjan had attained the decree for possession and found entitled to the possession in terms of Section 8 (supra), undoubtedly the sale-deed dated 19.4.1938 in favour of Qudratullah irrespective of it not being directly challenged, would render the above sale-deed as nugatory and redundant; because the title of Mst. Marjan shall be valued on the basis of the judicial verdict i.e. the decree, and the sale-deed shall not be a hindrance in her way.

5.  In view of the above, we do not find any merit in the pleas raised before us by the learned counsel for the appellants. Therefore, this appeal has no merit which is accordingly dismissed.

(R.A.)  Appeal dismissed