SHER AFZAL And 2 Others vs HAYAT GUL
This appeal arises from a dispute over the ownership and possession of a shop in Tehsil Haripur. The appellants filed a suit for possession based on title, alleging the respondent was their tenant. The trial court decreed the suit in favor of the appellants. However, on appeal, the District Judge reversed this, finding the appellants failed to prove ownership. A second appeal to the High Court was filed by the respondent and a co-defendant (the Nawab), but the appeal abated against the Nawab upon his death. The High Court ultimately dismissed the appellants' revision petition, affirming the findings of fact regarding the lack of ownership. The core legal question was whether the abatement of the appeal against the Nawab precluded the adjudication of the merits of the appellants' claim against the respondent. The Supreme Court held that since the appellants failed to establish their title, they could not succeed in their claim for possession, regardless of the abatement. The Court affirmed that findings of fact regarding ownership, when properly reached, are not subject to interference in revisional jurisdiction.
- Does the abatement of an appeal against one party in a suit for possession preclude the court from deciding the merits of the claim against another party?
- Can a plaintiff succeed in a suit for possession based on title without establishing their own ownership of the disputed property?
- Is a finding of fact regarding ownership subject to interference by the High Court in its revisional jurisdiction?
SAAD SAOOD JAN, J.-- This appeal by special leave is directed against the order, dated 6-12-1974 of the Peshawar High Court whereby the revision petition preferred by the appellants' was dismissed in limine.
2. The dispute between the parties relates to a shop situate in village Nakka Pani of Tehsil Haripur. It was in the occupation of respondent No.1. The appellants filed a suit for possession of the shop alleging that it was owned by their predecessor-in-interest, Muzaffar Khan, who had let it out to respondent No.1 They further averred that respondent No.1 had started claiming a title in the shop for himself and as such had ceased to be a tenant. They impleaded Nawab of Amb, respondent No,2, as a party to the suit. The suit was resisted both by respondent No.1 and the Nawab.
Respondent No.1 stated that he had become owner of the shop by prescription. The Nawab pleaded that the shop belonged to him and respondent No.1 was in possession thereof under him.
The learned trial Court decreed the suit after holding that the shop was the property of the appellants and that the plea of adverse possession taken by respondent No.1 was not established.
Both the Nawab and respondent No.1 preferred a joint appeal before the District Judge,, Hazara. The learned District Judge refused to consider the question whether the shop was owned by the appellants or the Nawab after holding that the dispute between the parties was confined to the controversy whether respondent No.1 was a tenant under the appellants or not. He examined the evidence from this angle alone and held that respondent No.1 was a tenant under the appellants; accordingly, he dismissed the appeal. From the judgment of the learned District Judge, the Nawab and respondent No.1 filed a second appeal in the High Court. During the pendency of this appeal, the Nawab died. No application was made for impleading his legal representatives on record.
Consequently, so far as he was concerned, the appeal stood abated. The High Court regarded this as a case of partial abatement and heard the appeal on merit. It set aside the judgment of the District Judge and remanded the case back to him for deciding it afresh on the basis that the suit of the appellants was for possession on the foot of title.
3. After the remand the learned District Judge re-examined the evidence and found that neither the appellants were owners of the land in dispute nor they had let it out to respondent No. l; accordingly, he accepted the appeal and dismissed the suit. The appellants preferred a revision petition in the High Court. The High Court dismissed the revision petition with the observation that the findings of the learned District Judge were well founded and that the appellants had failed to prove their ownership of the disputed shop.
4. Leave to appeal was granted to the appellants to consider the effect of the abatement of the second appeal in so far as the Nawab was concerned. In this regard it is to be noticed that the appellants had come to the Court on the basis of title. They could succeed only if they were able to establish that ownership of the shop in dispute vested in them. The learned District Judge found that they were not owners of the shop in dispute and that respondent No.1 was not inducted in the shop by him. These are findings of fact which the High Court very properly refused to interfere in revisional jurisdiction. The learned counsel appearing for the appellants was unable to show that these findings suffered from any infirmity. In the circumstances despite the fact that the second appeal of the Nawab had abated, the appellants could not seek dispossession of respondent No.1 as they were unable to show that they had a better right than respondent No.1 to the possession of the shop. For the same reason the contention that respondent No.1 being a licensee of the Nawab could not maintain an appeal on his own must be regarded as irrelevant. We would accordingly dismiss this appeal but leave the parties to bear their own costs.