TASLIM SHAH Versus HOKHIAR SHAH
YAHYA AFRIDI, J.--- Tasleem Shah and Muslim Shah, the petitioners, through the instant revision petition have challenged the judgment and decree dated 08.07.2013 passed by Additional District Judge-XII, Peshawar, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 21.04.2012 passed by Civil Judge-XI, Peshawar, was upheld.
2. The brief facts of the present case are that the petitioners-plaintiffs, in essence have sought declaration of ownership of inherited disputed property from their predecessor-in-interest namely Hukam Shah. In this regard, Tasleem Shah and Muslim Shah, being brother and sons of Hukam Shah, claim ownership of 10 Marlas of land devolved upon them vide mutation No.4847 attested on 13.5.2002, which is stated to be a house bounded "towards West is Ghulam Market and property of petitioners, towards East house of petitioners and respondents Nos.1 to 7, towards North house and hujra of petitioners plaintiffs and public thoroughfare and towards South is Sher Market, and Ghulam Market." While, Tasleem Shah, petitioner No.1, claims a further 9-1/2 Marla of land, which is also stated to be a house, which was transferred to him by his mother and widow of Hukam Shah, vide mutation No.5307 attested on 20.5.2006.
3. In para-4 of the plaint, the petitioners-plaintiffs further asserted that respondents Nos.1 to 7 are interfering in their peaceful possession and thus be restrained there from. In rebuttal, the respondents Nos.1 to 7 disputed any interference and claimed to be in peaceful possession of their own property.
4. Based on these pleadings of the parties, the worthy trial Court was pleased to frame the following issues;
1. Whether the plaintiffs have got a cause of action?
2. Whether the plaintiffs are estopped to sue by their own conduct?
3. Whether the suit is within time?
4. Whether the plaintiffs are owners in possession vide inheritance mutation No.4847 dated 13.5.2002 to the extent of 10 marlas and also owner in possession of the property in question vide mutation No.5307 to the extent of 9-1/2 marlas?
5. Whether the plaintiffs are entitled to the decree as prayed for?
6. Relief.
5. After recording of pro and contra evidence, the trial Court was pleased to dismiss the suit of the petitioners vide judgment dated 21.4.2012.
6. Aggrieved thereof, the present petitioners-plaintiffs challenged the same in appeal, which was also dismissed vide judgment and decree dated 8.7.2013.
7. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
8. What is very pertinent and crucial in the instant case is Issue No.4 regarding the inheritory rights of the petitioners-plaintiffs. To prove the said claim, they through the concerned Patwari Halqa produced the two mutations No.4847 dated 13.5.2002 and No.5307 dated 20.5.2006 (collectively referred to as "Mutations") and that too without any contest or objection by the respondents, as (Ex.PW1/1 and Ex.PW1/2). This documentary evidence was duly coupled with the oral evidence of two witnesses namely Ikramullah (PW-2) and Tasleem Shah (PW-4) produced by the petitioners-plaintiffs. Interestingly, the contesting respondents Nos.1 to 7 did not dispute the two mutations through which the petitioners-plaintiffs derived their interest in the subject property. What is also pertinent to note that the appellate Court has also noted that;
"It is admitted on record that the parties do not deny the ownership of each other rather the dispute between the parties is only neither respect to the possession of the suit property and this fact has been admitted at the bar by both the learned counsel for the parties."
Thus, when the contesting respondents are not denying the title of the petitioners-plaintiffs, to this extent their claim ought to have been decreed in their favour. Denying them, the declaration to that extent would clearly be non-reading, if not misreading of the admitted evidence on the record.
9. The Mutations when admitted in evidence without any protest provide not only the area transferred but also its location in the particular khasra numbers of the respective khatta. In the circumstances, not mentioning the khatta number in the plaint would not be fatal when the mutations on which the petitioners are claiming their rights was admitted in evidence without any protest.
10. Moving on to possession of the parties, the plaint does not disclose their dispossession from their inherited property, while the written statement filed by the contesting respondents Nos.1 to 7 also claim to be in possession of their respective property. Both are seeking the other to restrain from interference in their respective properties.
11. As far as, seeking possession is concerned, it is an admitted position, as correctly recorded by the appellate Court that;
"Admittedly, the suit property is the part of a huge khasra having many co-sharers in the same but they have not been impleaded as party to the suit. Thus, no effective decree can be passed in favour of plaintiffs in the absence of the other joint owners.........................
It is also proved rather admitted that the disputed khasra/khata consists upon a huge area and most of it comprises constructed property. In such eventuality possession of a specific area cannot be given to the appellants/plaintiffs without proper partition. As such, the proper course for the plaintiffs was to seek partition and got their share separated from metes and bounds."
12. The rights of a co-sharer in an undivided property to seek possession, declaration or even injunctive relief has been greatly impaired unless the same is sought in a suit for partition.
It all started with Muhammad Zafar Khan's case (PLD 1959 SC (Pak) 9) wherein possession could only be sought in a suit for partition, the Apex Court held that:
"The vendee of a co-sharer who owns an undivided Khata in common with another, is 3 clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers". (emphasis provided)
Thereafter, the Superior Courts have consistently applied the aforementioned principle to the right of the co-sharer seeking injunction and declaratory relief in an undivided property, some of the leading pronouncements include Ghulam Muhammad's case (1991 MLD 193), Alta Muhammad's case (1992 SCMR 138), Jan Muhammad's case (1993 SCMR 1463), Abdur Rehman and 7 others' case (1998 SCMR 1589), Muhammad Abid's case (2000 SCMR 780), Mst. Yaseen's case (2010 CLC 1618), Firdos Khan's case (2011 MLD 521), Niaz War Jan's case (2007 YLR 1723), Muhammad Sirajul Islam's case (2007 YLR 2645), Ghulam Nabi's case (1991 CLC 708), Muhammad Anwar's case (2003 MLD 742), Muhammad Ibrahim's case (2005 SCMR 1335), Syed Shabir Hussain's case (2007 SCMR 1884), Muhammad Sirajul Islam's case (2007 YLR 2645) and Gulzar Begum's case (2012 YLR 809).
13. It would be pertinent to note that there are two exceptions to the general principle discussed hereinabove, where a co-owner cannot seek possession, declaration or even injunctive relief regarding his proprietary or possessory rights as a co-owner without seeking partition. The same are as follows:
Firstly, when the co-owner rights, as co-owner of the undivided property is denied, violated or challenged, he may seek a declaration of his proprietary rights in the undivided property. In such circumstances, the co-owner may first seek a declaration regarding his proprietary shares in the joint property and after seeking the same may further, seek partition along with other injunctive reliefs. This principle has been eloquently described by the apex Court in Muhammad Rafiq's case (2004 SCMR 1036), wherein it was stated that:-
"3. Learned counsel for the petitioners submitted that the only objection which the petitioners wanted to agitate was that since the respondents were not in possession of the property, therefore, the suit for mere declaration without prayer for consequential relief of possession was not maintainable.
4. We are afraid, the argument is plainly unsound. The heirs of Nawab had become joint owners of the property after the termination of limited interest of Hakam Bibi therefore, it was a case of joint ownership and suit for declaration by one of the joint owners that they were also owners in the property which right was being denied to them, was maintainable.
5. It was not necessary for any of the joint owners, to have claimed partition of the joint property a present as it could be claimed by any of the joint owners during the currency of joint ownership without limitation of any period in that behalf so long as the right of any of the joint owners was not denied which was not in dispute in the case."
Secondly, in cases where a co-owner of the undivided property is dispossessed he may, without seeking partition thereof, pray for possession under section 9 and not under section 8 of the Specific Relief Act, 1877. This matter was elaborately discussed by the Apex Court in Mst. Resham Bibi's case (1999 SCMR 2325) relying upon the judgment rendered by the High Court Calcutta in Joy Gopal Singh's case and another by the Lahore High Court in Muhammad Shafi's case (1979 CLC 230) in terms that:
"22. We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as 6 compared to the other for which there is no warrant in law or equity.
23. We, therefore, hold that the appellants could see restoration of their exclusive possession of the site in dispute by filing a suit under section 9 of Specific Relief Act against the respondents by whom they had been ousted, but as they did not bring such a suit, they could not ask for the aforesaid relief by instituting an ordinary suit for possession without claiming better title than the one vesting in the respondents."
The ratio decidendi of the aforementioned judgments has been consistently followed thereafter by the superior Courts of our jurisdiction, and some of the important cases in this regard include Haji Muhammad Alam's case (2009 SCMR 688) and Muhammad Riaz's case (2006 YLR 1071).
Keeping in view that the parties are in possession of their respective properties and the petitioners-plaintiffs have not alleged dispossession thereof by the respondents and hence their case falls within the first exception stated hereinabove, whereby, their proprietary rights are claimed to be challenged by the respondents. However, as the petitioners have not been dispossessed, their case would not fall within the second exception to the rule, whereby possession could have been sought by the present petitioners-plaintiffs. Thus, as correctly observed by the Appellate Court, the petitioners-plaintiffs, if they seek possession of the disputed property, they would have to claim the same through partition of the undivided khata.
Accordingly, for the reasons stated hereinabove, the instant revision petition is partially accepted only to the extent;
I. That Tasleem Shah (petitioner No. 1) is owner in possession of a house measuring 9-1/2 Marlas vide mutation No.5307 attested on 20.5.2006, situated as described in the above stated mutation.
II. Tasleem Shah (petitioner No.1) and Muslim Shah (petitioner No.2) are owners in possession of house measuring 10 marlas vide mutation No.4847 dated 13.5.2002, situated as described in the above stated mutation.
III. As far as the remaining prayers of the petitioners are concerned, the order of the worthy Appellate Court is maintained.
ZC/425/P Order accordingly.