PLJ 2004 SC 137

[Appellate Jurisdiction]

Present; rana bhagwandas and syed deedar hussain shah, JJ. CANAL VIEW CO-OPERATIVE HOUSING SOCIETY-Petitioner

versus

JAVED IQBAL and another-Respondents C.A. No. 1267 of 1988, decided on 19.9.2003.

(On appeal from ojrder of Lahore High Court Lahore dated 11.11.1996 passed

in C.R. No. 2882-D of 1996)

(i) Specific Relief Act, 1877 (I of 1877)--

—-S. 9-Suit for possession-Essentials-Nature and effect of proceedings under S. 9, Specific Relief Act 1877-Essential ingredients to be established at the trial in suit for possession are; that plaintiff was in possession of land in question; that he was dispossessed by defendant; that he was dispossessed against his consent and not in accordance with law, and; that such dispossession took place within period of six months of suit-Object of S. 9, Specific Relief Act, 1877 is to discourage forcible, dispossession and to provide quicker remedy for recovery of possession where a person was dispossessed from immovable property otherwise than in due course of law—Plaintiff was not required to prove his title but merely his previous possession and wrongful dispossession. IP. 139] A

(ii) Specific Relief Act, 1877 (I of 1877)--

—-S. 9-Constitution of Pakistan (1973), Art. 185-Previous possession and wrongful dispossession proved by plaintiffs-Plaintiffs were not required to establish their title to land inquestion-Defendant was unable to establish source of its title as asserted-Findings arrived at by trial Court on question of possession of plaintiffs and dispossession on the part of defendant did not call for any interference-Appraisal of evidence by both Courts below was neither arbitraiy nor suffered from misreading of evidence or miscontruction of any material available on record-Judgments of Courts below were maintained in circumstances.

[P. 140] B & C

Chaudhry Khurshid Ahmad, Sr. ASC for Petitioner. Mr. Muhammad Yasin Chughtai, ASC for Respondents. Date of hearing : 10.6.2003.

judgment

Rana Bhagwandas, J.-This appeal with leave of the Court arises out of an order dated 11.11.1996 of the Lahore High Court, Lahore whereby

appellant's civil revision petition under Section 115 CPC directed against the judgment of the trial Court decreeing respondents' suit under Section 9 of the Specific Relief Act was dismissed.

2. Appellant statedly purchased the suit land comprising 2 kanals
19 rnarlas situated in Mouza Niaz Baig, Tehsil and District, Lahore through
registered sale-deed dated 22.6.1977 from its owners which was mutated in
the revenue record vide mutation entry No. 3248 sanctioned on 16.8.1979.

3. It is the case of the appellant that after acquiring title to land it
proceeded to lay roads, sewerage line and construct parks and provided for
sui gas, electricity and telephone lines in the Society. On their part,
respondents claimed to have purchased the suit land in 1991 and asserted
that they were illegally dispossessed in the month of March 1992 by
appellant Society by force and without recourse to JegaJ action. Respondents
averred that they had approached the appellant, who initially went on
putting off the matter on one pretext or the other and lastly threatened them
with dire consequences. It is further asserted that they have got the land
demarcated by revenue/consolidation department and, after notice to the
appellant, they were put in possession of the land. According to them the
suit land falls within the boundary surrounded by the appellant Society, who
have also constructed a road between the land in suit and deployed security
guards over the land. It is the grievance of the respondents that appellant
wants to construct its building on the land in dispute and thereby change the
character of the land without any title.

4. The suit was resisted on the premises that the appellant Society
was lawful owner in possession of the land and the respondents had no
evidence of title in their favour, thus, their claim was founded on fraud.
Appellant heavily relied upon purchased of the land through the sale-deed
referred to hereinabove and denied. forcible dispossession, as claimed.
Pleadings of the parties were reflected in the following issues at the trial of
the suit:-

"1. Whether the plaintiffs are entitled to recover possession under Section 9 of Specific Relief Act from defendant? OPP

2. Whether the plaintiffs have not given correct description of the
property in dispute, if so its legal effect? OPD.

3. Relief.

Both the parties adduced oral as well as documentary evidence in support of their respective stances. Upon analysis of the evidence, trial Court decreed the suit against the appellant, who, in the first instance, preferred an appeal before the District Court but the memo of appeal was returned with the observation that appeal was incompetent before the District Court, as the valuation of the property in suit was assessed at Rs. 25,00,QOO/-.

Accordingly, the appellant preferred civil revision before the High Court,. which was dismissed hy learned Single Judge vide order impugned in this appeal.

6. In a suit for possession under Section 9 of the Specific Relief Act,
essential ingredients to he established at the trial are "(i) that the plaintiff
was in possession of the immovable property; (ii) that he was dispossessed by
the defendant; (iii) that he was dispossessed against his consent and not in
accordance with law (iv) that such dispossession took place within a period of
six months of the suit.

7. Legally speaking object of this provision is clearly to discourage
forcible dispossession and to provide a quicker remedy for recovery of
possession where a person is dispossessed from immovable property
otherwise than in due course of law. The plaintiff under this section is not
required to establish his title to the property and he can succeed by merely
showing his previous possession and wrongful dispossession. However,
proceedings under this provision of law do not constitute a bar against any of
the parties suing to establish his title to the property to recover possession
thereof.

8. It may be noted that on assessment of evidence of the parties,
trial Court decided both the issues in favour of the respondents and for
arriving at such conclusion, besides the statements of the witnesses of the
parties, took into consideration certified copy of order of Chaudhry
Muhammad Sarwar, Additional Commissioner (Consolidation), Lahore
dated 30.7.1990 indicating that one of the respondents namely Abdul Jabbar
had filed an appeal against Sher Muhammad and others against order dated
10.7.1979 relating to Mutation No. 5420, which was accepted while said
mutation in respect of Khasra No. 8273, measuring 2 kanals 19 marlas was
set aside. It may be pointed out that on its part the appellant claimed to have
purchased the land in dispute from Sher Muhammad, Muhammad Ayub,
Zainab Bibi, Muhammad Hussain and others vide registered sale-deed dated
22.6.1977. Aforesaid vendors were arrayed as respondents in the appeal
before the Additional Commissioner (Consolidation), Lahore filed by Abdul
Jabbar. According to this order, as per Scheme No. 1757, 2 Kanals 19 Marias
of land in Khasra Nos. 5203/8273 was given to Abdul Qayyum father of the
Respondent No. 3 and Mutation No. 5420 was sanctioned by way of
exchange, in compliance with an order dated 10.9.1979, purportedly passed
by Additional Deputy Commissioner (Consolidation). This khasra was
shown as part and parcel of joint khata of owners of the village and,
therefore, transferred in the names of Sher Muhammad and others along
with field numbers to the deprivation of Abdul Qayyum of his holding. Since
Abdul Qayyum was given land during consolidation proceedings under
Scheme No. 1757, Additional Commission (Consolidation) found that
inclusion of the suit land in common pool of the village was not justified. As
per impugned mutation, while the land was exchanged, no alternate land

was provided to the father of respondent-Abdul Jabbar. He, therefore, accepted the appeal of Respondent No. 3 and set aside the order of the Consolidation Officer as well as mutation, in dispute concerning suit land. Relying upon this order, trial Court formed the opinion that as Sher Muhammad and others were not the owners of the land in dispute, they could not pass title better than they possessed themselves. Consequently, mutation in favour of the appellant from Sher Muhammad and others did not transfer any title in favour of the appellant Society.

9. We have, however, minutely gone through copy of the registered
sale-deed Ex. Dl in favour of the appellant, which, inter alia, relates to
Khasra No. 598 and others, purchased from Sher Muhammad and others
with the averments that during consolidation proceedings vendors had not
been changed nor had they obtained demarcation of the land in exchange. It
would, thus, appear that khasra number forming the subject-matter of the
suit did not form part of the land purchased by the appellant and the
mutation based on said sale-deed could hardly confer any legal right, title or
interest on the appellant. Strange enough, mutation from names of Sher
Muhammad and' others in favour of the appellant has a reference to the
registered sale-deed No. 8601 dated 22.6.1977 but entirely different khasra
numbers have been mutated in favour of the appellant, including Khasra No.
8273 owned and rightly claimed by the respondents. Since the respondents
were not required by law to establish their title to the suit land and the
appellant was unable to establish the source of its title as asserted, findings
arrived at by the trial Court on the question of possession of the respondents
and dispossession on the part of the appellant did not call for any
interference. It was for this reason that learned Judge in Chambers of the
High Court did not disturb the finding of fact recorded by the trial Court in
the exercise of discretionary jurisdiction, as it appears to be based on correct,
careful and conscious appreciation of evidence.

10. Since the appraisal of evidence by both the Courts below is
neither arbitrary nor suffers from misreading of evidence or misconstruction
of any material available on record, it is difficult to subscribe • to the
submission advanced by the appellant that judgment of both the Courts
below suffered from misreading of evidence. Without dilating upon the
question of title of the parties to the suit land any further, suffice it to say
that concurrent findings of fact recorded by the two Courts below do not
suffer from misreading or non-reading of evidence, misconception of law or
any other legal infirmity to justify any interference by this Court in the
exercise of its Constitutional jurisdiction.

11. For the aforesaid facts and reasons, this appeal must fail and is
hereby dismissed with no order as to costs.

(A.A.) Appeal dismissed.