SHER ALI Versus KHAKI JAN

ORDER

This is an application in revision by the defendant against the judgment and decree, dated 8‑2‑1988 of Additional District Judge, Attock affirming those of the trial Court, dated 7‑10‑1987.

2. Facts of the case briefly stated are that 4 Kanals 12 Marlas of land Khasra No. 1317 present, 1090 previous part of shamilat deh revenue estate Rakhwan was in possession of Mian Khan son of Muhammad Khan as a co‑sharer. By mutation 321, dated 2‑6‑1932, aforesaid Mian Khan sold his possessory title to Subedar Muzaffar Khan and others and delivered its possession to vendees. On 17‑5‑1966, successors of Muzaffar Khan alongwith other persons claiming share in the land sued Sher Ali Khan‑for recovery of the possession of the land alleging that the latter had, a year before the suit committed trespass on their land and taken possession from them. On these allegations of prior possession and dispossession, plaintiffs prayed for a decree of possession. Defendant controverted the material allegations. It was pleaded that he was in possession of the land as a co‑sharer and plaintiffs' remedy apart from the summary remedy in section 9 Specific Relief Act was a suit for partition of the joint land. Substantial defence was that suit for possession based on title did not lie. By judgment, dated 7‑10‑1987 of the trial Court, it was held that suit was competent; that the defendant was not in possession as a co‑sharer; that plaintiffs who were in possession were dispossessed as alleged by them; that they were entitled to recover possession and that the valuation set up in the plaint was correct. On these conclusions, suit was decreed to the plaintiffs. On appeal, this decision was affirmed.

2‑A. On behalf of defendant, it is contended by Ch. Zamurrad Hussain, Advocate that the suit to recover possession does not lie and if the allegations made in the plaint are established, only remedy for the plaintiffs available under law is to sue for partition.

3. After hearing the learned counsel and examination of the record, I do not feel persuaded to agree with him. Land in suit is part of shamilat deh. It was in possession of Mian Khan as a co‑sharer. By mutation 321, he sold his rights to Subedar Muzaffar Khan and others. This mutation was based on a Court decree. Eversince the date of sale, possession of the land was with the vendees and their successors. This is borne out by copies of jamabandis for 1972‑73 Exh. P‑2, 1977‑78 Exh. P‑1, copy of an extract from crops inspection Register Exh.P‑3. It may be noted that Exh.P‑3 records the possession of the plaintiffs till Kharif 1985 recorded on 8‑10‑1985. Suit for possession was instituted on 17‑5‑1986. Entries in Exh. P‑3 clearly support the plaintiff's stance as to their prior possession and dispossession. Oral evidence led in this behalf is also consonant with the revenue papers. There is no material to discredit the entries in the revenue records which attract presumption of truth. Bare denial of the defendant was insufficient to rebut the long standing entries existing in the revenue records. These clearly favoured the plaintiffs. On the available material, Courts below rightly concluded that the land was purchased from Mian Khan and since the date of purchase, it was in possession of the plaintiffs and their predecessors‑in‑interest. It also rightly found that the defendant committed trespass and regained possession unlawfully. Defendant's version that he was in possession for the _ past 60 years does not fit in with the record and the probabilities of 1 the case. This brings me to the legal question as to the maintainability of the suit. Precise question requiring examination is whether suit under section 9 was the only remedy available to a dispossessed co‑sharer or that in addition to the summary remedy provided by section 9 Specific Relief Act, a co‑owner dispossessed illegally could rely upon his possessory title and sue for recovery of possession even after the period of six months has expired. This point was examined in Ganesha Mal v. Ibrahim and others A I R 1919 Lah. 237(2) by Scott‑Smith, J., and it was observed "In the case of a joint khata of agricultural land, one co‑sharer ordinarily cultivates one field and other co‑sharers cultivate other fields, and it is certainly not the law that one co‑sharer can dispossess the other against his B will from the field of which he has possession. In Jhangi v. RamzanI 13 P R 1910, it was stated that in accordance with well known law and custom as to possession of plots of shamilat by individual ALl co‑sharers the defendants in forcibly dispossessing were qua plaintiff mere trespassers., In accordance with this principle, I hold that plaintiff‑appellant's peaceful possession was a substantive right, the infringement of which gave rise to a cause of action. As pointed out, in that case also the plaintiff might have sued under S.9 Specific Relief Act, but he was not bound to do so. Plaintiff cultivated other in the land in Kharif 1916 and it may very possibly have been lying vacant in the succeeding Rabi. That fact alone would not, however, entitle defendant to take possession without plaintiff's consent. I hold that plaintiff is entitled to recovery of possession". This case was approvingly referred to ‑in Karam Chand and another v . Dr. Karamdad Khan and others A I R 1938 Lah. 465, Panna and Giriraj v . Madan Lal A I R 1955 Raj.

173. In Ahmed Miaji and others v . Eakub Ali Munshi and others P L D 1961 Dacca 259, on the right of o‑sharer to maintain his exclusive possession and the effect of his a dispossession by another co‑sharer, the court proceeded to observe "It is no doubt true that the finding of both the Courts below is that there was no partition by metes and bounds amongst the co‑sharers but that does not justify that one co‑sharer in exclusive possession of specific plot of land should be dispossessed by another co‑sharer. If any such co‑sharer is dispossessed from his specific land certainly he has got the right to recover possession of the land he was dis possessed. If anybody is aggrieved by such exclusive possession of a portion of a joint land let him go to the partition suit for his remedy but so long that is not done then the possession of the co‑sharer of the specific land must be respected, subject to the determination of their question of title. So, we are unable to accept the contention of Mr. Guha, that suit for khas possession after evicting the defendant is not maintainable". This view was reiterated in ~utitan Bibi v. Zulmat Khan and others P L D 1968 Dacca 172. In the decision in Fazil etc. v. Manzoor Hussain etc. P L D 1979 Note 9 at p.6 holding that a co‑sharer dispossessed at the hands of another co‑sharer was entitled only to two remedies, one under section 9 Specific Relief Act and the other a suit for partition, the earlier decisions of this Court laying down that a dispossessed co‑sharer was not confined to the summary remedy under section 9 Specific Relief Act had not been noticed. In my opinion, rule in A, I R 1919 Lah. 237(2) enunciates the correct statement of law and I respectfully agree with it. Decision reported as 1979 C L C 230 proceeded on distinguishable facts. In yet another case reported in A I R (37) 1950 Pupsu 5, it was observed that if a co‑sharer is in exclusive possession of any portion of an undivided holding not exceeding his own share he cannot be disturbed in his possession until partition. If instead of remaining himself in possession he transfers this portion of the joint khata his transferee will also have the same rights and cannot be dispossessed by the other co‑sharers until a final partition between the co‑sharers has taken place.

In such case the other co are only entitled to a declaration that the possession of the transferee will be that of a co ‑sharer subject to adjustment after the time of partition". Also see P L D 1959 SC 9. Possession of a co‑sharer is a very valuable right. A co‑sharer in possession is entitled to maintain his possession till partition of joint kbyta takes place between all the co‑sharers. Other view suggested by learned counsel tantamounts to encouraging the employment of force in settlement of civil disputes which civilized law must discourage. Even otherwise, the facts of the case do not qualify for interference in revisional jurisdiction. Father of the defendant had sold this piece land to Subedar Muzaffar Khan and others, received its sale price and delivered the possession of land to them. Vendees enjoyed the possession from 1932 to the date when they were dispossessed by the defendant. Therefore, defendant has no equity in his favour. He has no right to retain possession and must restore it to its rightful claimant. If he feels aggrieved of the exclusive possession of the plaintiffs, it is open to him to bring a partition suit. For the reasons set out above, civil revision is without substance and is dismissed in~ limine.

A. A./S‑224/L Revision dismissed.