FAIZULLAH Versus BAKHTULLAH JAN
MOHAMMAD IBRAHIM KHAN, J.--- By imploring the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Faizullah and 2 others the Petitioners herein, are looking forward for setting aside the judgments and decrees of the learned lower Courts dated 31.03.2016 passed by the learned Civil Judge-I/Illaqa Qazi Dir, Respondent No. 4 and judgment dated 17.11.2016 rendered by the learned Additional District Judge-II/Izafi Zila Qazi Dir Upper, Respondent No. 5.
2. By the verdicts contained in the impugned judgments the suit under section 9 of the Specific Relief Act, 1877 instituted by the Plaintiff Bakhtullah Jan (the Respondent No. 1 herein) for restoration of the possession of a house along with four shops owned and possessed by him on account of the sale agreement dated 16.02.2013 was decreed in his favour to the extent of house only.
3. This claim was resisted on behalf of the Defendant No. 1 (hereinafter called the Petitioner No. 1) Faizullah raising various legal and factual objections. Whereas Defendants Nos. 4 and 5 (herein the Respondents 2 and 3) have submitted cognovit, thereby confirming the sale on their behalf in favour of the Plaintiff (herein the Respondent No. 1). The learned Trial Court on the basis of the pleadings of the parties reduced the controversy in between them by framing the following issues:-
4. The parties led their evidence accordingly. The Plaintiff (herein the Respondent No. 1) examined PW-I Gul Zameen Record Keeper, Ubaid Shehzad PW-2, Luqman Alam PW-3, Assam-ud-Din PW-4, Imam Hussain PW-5, Khaleeq-ur-Rehman PW6, Muhammad Zada Petition Writer PW-7, the Plaintiff now the Respondent No. 1 Bakhtullah Jan PW-8, Ghawar Khan PW-9 and Bakht Rahman PW-10. Inversely, the Defendant No. 1 herein the Petitioner No. 1 Faizullah examined Gul Zamin as DW-1, Hameedullah as DW-2 and Haji Faizullah himself appeared in the witness-box as DW-3.
5. By the judgment contained in Civil Suit No, 13/1 of the year 2015, the learned Civil Court was pleased to grant a decree partially to the extent of suit house, whereas in respect of restoration of the shops his claim was dismissed.
6. The matter was further taken up before the Court of learned Additional District Judge-II/Izafi Zila Qazi Dir Upper in Civil Revision No. 08/12 of 2016 for all the reasons herein the conclusion was drawn holding the order dated 31.03.2016 needs no interference by the same learned Revisional Court, hence the revision petition was dismissed on 17.11.2016.
7. Having heard arguments of the learned counsel for the parties, record with their valuable assistance gone through.
8. Indeed, this is a matter for restoring possession of the suit house along with four shops being partially decreed in the previous suit under section 9 of the Specific Relief Act, 1877, which reads as under:--
9. Suit by person dispossessed of immovable property, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover possession thereof notwithstanding any other title that may be set up in such suit.
Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
No suit under this section shall be brought against [the Central Government, or any Provincial Government].
No appeal shall lie from any order or decree in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
Section 9 of the Act ibid consists of four ingredients:- Firstly, the person suing must have been dispossessed. Secondly, such dispossession must be of immovable property. Thirdly, the dispossession should be without plaintiff's consent. Fourthly, the dispossession should be otherwise than in due course of law.
9. It is imperative to succeed in the suit under section 9 of the Act ibid when the Plaintiff is to prove that he was in possession of the suit property and that he has been dispossessed by the Defendant otherwise than in due course of law. This dispossession has taken place within six months of filing of the suit. The Court is not to appreciate the question of title which has been raised or looked into in a case filed under section 9 of the Act ibid. Therefore, when the record particularly the prayer as set in the plaint followed by statements of all the Plaintiff (herein Respondent No. 1) witnesses were scanned with great care and caution, it was observed that the most important ingredient of section 9 of the Specific Relief Act to prove the previous possession of the suit house is lacking when altogether the statements of all the Plaintiff (Respondent No. 1) witnesses are also silent to this effect. It looks like that probably the plaint has been drafted under the provisions of section 8 of the Specific Relief Act as there is nowhere being stated therein that the Plaintiff (Respondent No. 1) had ever been found in possession even on the strength of the deed in his favour. It is still a matter shrouded in mystery that as to when the Plaintiff (Respondent No. 1) has been dispossessed from his lawful possession, he never reported his forceful dispossession rather than in due course of law before the officials of the police station the house being fallen within its jurisdiction. Even the affidavits furnished are also not suggestive of that ever Plaintiff (Respondent No. 1) has been dispossessed forcibly. This is the pivotal question involved in the present case whether the Respondent No. 1 has ever been found in possession and thereafter has been disposed from the suit property. It is answered in negative due to dearth of evidence never cared of.
10. Contrary to the evidence of the Defendant No. 1 (herein the Petitioner No. 1) in the very opening, line of the examination-in-chief would reveal DW-1 Gul Zameen in his support DW-2 Hameedulllah have stated that as far as they remember the house and the shops are in continuous, possession of Haji Faizullah the Defendant No. 1 (hereinafter called the Petitioner No. 1). Whereas there is no cross-examination and even no suggestive question has been put regarding the possession being held on account of dispossessing the Plaintiff (herein the Respondent No. 1).
11. It is, therefore held that the learned trial Court as well as the learned Revisional Court have erred in law to decree the suit as the Plaintiff (herein the Respondent No. 1) has failed to bring the case within the four corners set as guide by the legislature under section 9 of the Specific Relief Act. Therefore, the learned trial as well as the learned Revisional Court have committed material irregularity, thereby the perspective prayer as set out in this writ petition and on its acceptance the findings in the impugned judgments and decrees of both the learned Courts are set aside. It is however open for the Plaintiff (herein the Respondent No. 1) to seek possession under section 8 of the Specific Relief Act if at all he is a declared owner of the suit premises on account of purchase in his favour by the deed dated 16.02.2013 in consideration of the amount of Rs. 37,50,000/-.
ZC/89/P Petition allowed.