PLJ 2000 SC 1071

[Appellate Jurisdiction]

Present: saiduzzaman siddiqui, sh. ijaz nisar, kamal mansur alam, JJ. Mst. RESHAM BIBI and others-Appellants

versus

LAL DIN and others-Respondents

 Civil Appeal No. 88 of 1994, dismissed on 25.5.1999.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 23.8.1992 in C.R., No. 1511-D of 1990).

Specific Relief Act, 1877 (I of 1877)-- —Ss. 8 & 9-Co-sharer dispossess by other co-sharer-Remedy to regain possession-After dispossession of a co-sharer by other co-sharer he has two remedies for seeking redress, namely, a suit under section 9 of Specific Relief Act and proceedings for partition of joint property ~A third remedy that is an ordinary suit for restoration of exclusive possession wold amount to placing one set of co-sharers in a much more advantageous position as compared to other for which there is no warrant in law or equity-Where evidence on record does not show that title of appellants in respect of disputed land was superior to that of respondents-Mere fact that appellants remained in exclusive possession of disputed land for a long time would not make any difference, as admitted position in case is that both parties were joint owners in Abadi Deh and Shamlat Deh which included disputed portion of land. [P. 1076] A to B Ch. Muhammad Anwar Khan, Advocate Supreme Court for Appellants. Mr. S. Abul Aasim Jafri, AOR for Respondents. Date of hearing: 18.5.1999.

judgment

Saiduzzaman Siddiqui, J.-The appellants and respondents are admittedly owners of Abadi Deh as well as Shamlat Deh. The appellants claim to be in exclusive possession of 1 Kanals of land comprising Khasra No. 935 since before the year 1966. The appellants were allegedly dispossessed from the land in their possession (Khasra No. 935) on 8.4.1974. Therefore, they instituted a civil suit on 19.3.1978 for possession against the respondents. It may be mentioned here that earlier to the filing of the suit for possession, the appellants had filed a suit for perpetual injunction against the respondents but it is claimed that during pendency of that suit the respondents dispossessed them from Khasra No. 935 which led to the withdrawal of the suit for permanent injunction and filing of the suit for possession. The later instituted suit by the appellants was decreed on 16.10.1980. However, on appeal filed by the respondents, the suit was remanded with the direction to the trial Court to appoint a local commissioner to determine the identity of the disputed land. The trial Court after remand of the case by the 1st Appellate Court, appointed a local commissioner and in the light of the report of the local commissioner once against decreed the suit on 3.3.1987. The appeal field by the respondents against the judgment and decree of the trial Court failed whereupon civil Revision Application No. 1511-D of 1990 was filed before Lahore High Court which succeeded as follows :— "13. Before me, learned counsel for the parties agreed that the land in dispute was part of Abadi Deh and that the plaintiffs claim was founded upon their being co-owners in Abadi Deh and Shamlat Deh. As observed above, admittedly, the defendants were also co-owners in Abadi Deh and Shamlat Deh and learned counsel for the plaintiffs did not dispute that fact. Learned counsel for the defendants, petitioners herein, contended on the authority of Muhammad Shaft and 2 others v. Munshi and 3 others (1979 CLC 230 (D.B.), that in the facts of the case, the remedy of the plaintiffs lay either in a suit for possession under Section 9 of the Specific Relief Act or in a suit for partition. In the precedent case also, the dispute related to a site in the Abadi deh and the plaintiffs alleged dispossession had, as in this case, taken place more than six months before the institution of the suit. The law enunciated in that case was that through a co-sharer, who has been in exclusive possession of the certain portion of

18.                In the case of Pannalal Bhagirath Marwadi, however, it was held that a person who enters into peaceful possession of land claiming it as his own although he might not have any title to the land, can sue another person who has forcibly ousted him of possession and who has no better title to the land, and if the former is forcibly dispossessed, a suit under Section 9 of the Specific Relief Act is not the only remedy open to him for seeking restoration of the possession and that he can also file an ordinary suit for restoration of
possession of the property from which he is ousted.

19.         The position, therefore, boils down to his that it is only the case  f Joy Gopal Singh and others and Pennalal Bbhagirath Marwadi which have bearing on the precise question as to whether a person who is deprived of the possession of an immovable property can regain its exclusive possession by means of a suit other than a suit under Section 9 of the Specific Relief Act without showing that he has better title to the property than a person who has ousted him therefrom. As indicated earlier, conflicting views have been express­
ed in the said two cases on the aforesaid question, and we are inclined to adopt the view taken in the case of Joy Gopal Singh and others.

20.   The main reason for which we would like to follow the dictum in the case of Joy Gopal Singh and others is that it is in consonance with the letter and spirit of Sections 8 & 9 of the Specific Relief Act. According to Section 8, if a person desires to obtain possession of an immovable property on the basis of his title, he can bring a suit for ejectment in accordance with the relevant provisions of the Code of  Civil Procedure normally, such a suit can be filed within 12 years of the occupation of the immovable property by a person without title. The person seeking relief, under Section 8, cannot succeed unless he demonstrates that he has title to the property claimed by him but the defendant had no such title thereto or, if he (defendant) too has any title, the same is not better than his (plaintiffs). As against  this, if he seeks restoration of possession under Section 9 of the Specific Relief Act, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the filing of the suit. Viewed in the light of this legal position, the appellants before us, who are as good co-sharers of the property in dispute as the respondents, should have filed a suit under Section 9 of the Specific Relief Act to regain possession of the property in  suit within six  months  of their dispossession. If they had done so, they would have succeeded notwithstanding the fact that their title was equal but not superior  to that of the respondents. They, however, brought an ordinary suit, obviously, under Section 8 the Specific Relief Act, which  annot succeed because their Jtle is not better than that of the respondents and as such they are not entitled to retrieve the disputed property from the respondents.

21.   The view taken by us is also in accord with the law laid down in the above cited cases of Muhammad Muzaffar Khan, Muhammad Amin and others, Saeed Ullah, Syed Jarnal Shah, Haji Muhammad and others, Jalal-ud-Din, Ahmad Mianji and others and Kutijan Bibi that a co-sharer in possession of a specific portion of a joint property cannot be ousted till the joint property is partitioned. At present, somehow or the other, the respondents are in possession of the property in dispute and, thus, their possession is protected by the aforesaid authorities. As for the consideration regarding possession a "long" period" it would not make any difference because beyond the period of limitation of six months prescribed for a suit under Section 9 of the Specific Relief Act there would be no sure test and standard  or fixing the period for acquisition of the so-called possessoiy right. We are, therefor, 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 compared to the other for which there is no warrant in law or equity. We, therefore, hold that the appellants could seek 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." We are inclined to agree with the above legal proposition enunciated by the learned Judges of the Division Bench of Lahore High Court in the case of Muhammad Shafi & 2 others vs. Munshi & 3 others (supra). In the case before us, the evidence on record does not show that the title of the appellants in respect of the disputed land was superior to that of the respondents. Mere fact that the appellants remained in exclusive possession of the disputed land for a long time would not make any difference, as the admitted position in the case is that both appellants and the respondents were joint owners in the Abadi Deh and Shamlat Deh which included the disputed portion of the land. We, therefore, find no reason to interfere with the judgment of learned Single Judge. The appeal, is accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.

:r M.M.)                                                                        Appeal dismissed.