Suit for Possession through Ejectment

PLJ 2015 Peshawar 175 Present: Abdul Latif Khan , J. AMJAD ALI and 7 others --Petitioners versus ANWAR SHAH & 10 others --Respondents C.R. No. 1866 of 2010, decided on 25.2.2015. Civil Procedure Code, 1908 (V of 1908)-- ----S. 115--Civil revision--Suit for possession through ejectments , dismissal for want of proof--Dual status as legal heirs of tenant as well as purchaser of property--Tenancy could not be proved through confidence inspiring evidence nor payment of khak shora --Validity--Both of status were being inconsistent with each other, so long has not taken place by meat and bound and as such moment property acquired, relation of tenant and landlord ceased to exist however in instant case neither respondents are tenant under plaintiff nor plaintiff claims as such and to extent of father of respondent claim of plaintiff as his tenant has not been established and denied by tenant/father of respondents as evident from suit filed by him claiming adverse possession--Petition was dismissed. [P. 178] A Mr. Misbahullah , Advocate for Petitioners. Mr. Mazullah Barkandi , Advocate for Respondents. Date of hearing: 25.2.2015. Judgment This revision petition has been preferred against the order/judgment and decree dated 9.7.2010 passed by learned Additional District Judge-XII, Peshawar, whereby while accepting the appeal of respondents the order/judgment and decree dated 26/11/2009 passed by learned Civil Judge, Peshawar, set aside and the suit of the petitioners has been dismissed for want of proof. Arguments heard record perused.

2. A perusal of record reveals that a suit for possession through ejectment was filed by predecessor of petitioners namely Khalil Khan against the predecessor of respondents namely Haji Yar Badshah in respect of suit house on the ground that he was excusive owner of the suit house and the predecessor of defendants was tenant under him on payment of ' Khaak Shora '. It was also averred that a suit was filed by defendants claiming ownership which was dismissed on 20.6.1990 and appeal filed by him also met the same fate on 19.10.1993. The defendant put his appearance who was directed to file written statement and prior to that the four sons of defendant (present respondents) moved an application for impleadment as party on the ground that they have acquired the land by dint of various mutations and as such became co- sharere in the property. Their plea was turned down and revision filed by them was also dismissed and the case was sent back to the trial Court. In the meanwhile defendant Haji Yar Badshah died and the present respondents were arrayed as party in the capacity of legal heirs of defendant, who filed written statement on 26.7.1999 claiming therein that they are co-sharers in the property by dint of Mutations No. 511 to 514 attested on 29.6.1993 and registered deed attested on 02.12.1993 and cannot be ejected through instant suit.

3. Learned counsel for petitioners referred to his better statement and submitted that original defendant has not filed written statement and the plea of respondents to be impleaded as party was turned down by the Courts below however lateron they are arrayed as party in the capacity of legal heirs of defendant and as such could not claim the co-ownership in the suit property nor the plaintiff can be non-suited on this score.

4. It is pertinent to mention that the ejectment petition has been filed on 3.3.1994 whereas the respondents have acquired title in the suit property through mutation on 29.6.1993 and sale deed dated 2.12.1993 ,much prior to institution of the instant suit and cannot precluded to agitate their title before the Court despite the fact that their plea of impleadment as party in individual capacity, turned down by the Court. Learned counsel for petitioner took the plea that there are two houses having an intervening wall which has been demolished by respondents which is misconceived, as no evidence has been produced to this effect. The plaint, better statement filed by plaintiff and the statement of petitioner as PW.1 reveals that admittedly Yar Badshah deceased (original defendant) was residing in disputed house since long. He deposed that Yar Badshah was residing prior to his memory as he was not born at that time. He further admitted that the exact measurement of the house is not known to him and has given the details that there are four Kotas and one veranda in the suit house which was constructed by Yar Badshah deceased. It is nowhere mentioned that there were two houses, one purchased by respondents and other was in possession of father of respondent (original defendant) as tenant. The previous litigations between the predecessors of the parties were to the effect that Yar Badshah in Suit No. 127/1 claimed adverse possession and his suit was dismissed as the plea of adverse possession was no more available due to repeal of relevant law.

5. The plaintiff claims ownership on the basis of revenue record which reveals that the disputed property bearing Khasra No. 356/71 measuring 5 Kanals , 2 Kanals Ghair Mumkin Abad and 3 Kanals Nehar kind of land. Learned counsel for petitioners was unable to convince the Court as how the respondents could be ejected and from which portion of the house as the record is silent as to which of the portion is in possession of original defendant/tenant father of present respondent and which of the portion has been purchased by present respondents by dint of mutation and sale deed. It is pertinent to mention that one Hussain s/o Mashal who has been shown as Hissadar owner in column of cultivation to the extent of 2 Kanals in the suit property has sold 10 marlas of land in favour of respondents and to this effect a suit was also filed in the Court by said Hussain Khan against the respondents Bearing No. 188/1 on 5.7.2010 wherein compromise was effected and was dismissed as withdrawn on 30.10.2010, which shows that they were inducted by their vendor Hussain who happens to be the son of Mashal , Hissadar owner in possession of the suit house. The plaintiff has not been able to prove his claim in the suit house rather based his claim on the revenue record wherein Ghair Mumkin Abadi has been shown to the extent of 2 Kanals . Even the existence of house in the said Khasra number has not been proved through cogent evidence. The format of the suit is defective and no proper remedy has been sought by the plaintiff and mere suit for ejectment would not resolve the controversy between the parties especially when the respondents have dual status as legal heirs of the tenant (now dead) as well as purchaser of the property and in such eventuality the previous status would be converted into that of later one as tenancy could not be devolved in inheritance especially when it is not proved through confidence inspiring evidence nor the payment of ' Khak Shorna ' has been established. The plaintiff has not brought on record any receipt to this effect. Even otherwise both of the status were being inconsistent with each other, so long has not taken place by meat and bound and as such the moment property acquired, the relation of tenant and landlord ceased to exist however in the instant case neither the respondents are tenant under the plaintiff nor the plaintiff claims as such and to the extent of father of respondent the claim of plaintiff as his tenant has not been established and denied by tenant/father of respondents as evident from suit filed by him claiming adverse possession.

6. The learned Court of appeal has decided the list pending before it with conscious and diligent appreciation of mind, warrants no interference. For the aforesaid reasons, the instant petition being devoid of merit is dismissed. (R.A.) Petition dismissed