2023 Y L R 2637
[Balochistan]
Before Muhammad Aamir Nawaz Rana, J
GHULAM DASTAGIR and another ---Petitioners
Versus
ALLAH BAKSH ---Respondent
Civil Revision No. 812 of 2021, decided on 16th February, 2023.
Specific Relief Act (I of 1877) ---
----Ss. 9 & 54--- Civil Procedure Code (V of 1908), S.115--- Suit for recovery of possession
and injunction--- Summary proceedings, applicability of ---Pre-conditions ---Concurrent
findings of facts by two Courts below ---Suit and appeal filed by petitioners/plaintiffs were
dismissed by Trial Court and Lower Appellate Court respectively---Validity ---Suit under S. 9
of Specific Relief Act, 1877, was exception to other suits seeking relief of possession---
Specific privilege was given under S. 9 of Specific Relief Act, 1877, to person in possession to take action promptly in case he was dispossessed ---Such suit entitled plaintiff to succeed
simply by establishing and proving following facts: (i) plaintiff was in possession; (ii) plaintiff had been dispossessed by defendant; (iii) dispossession was illegal and without
adopting due course of law; (iv) dispossession took place within six months of filing the suit; and (v) question of title either of plaintiff or of defendant could not be raised or adjudicated upon such case, under S. 9 of Specific Relief Act, 1877---Though revisional jurisdiction of High Court is sparingly used and normally concurrent findings of the fora below are not disturbed but in case complete misreading and non- reading of evidence by Trial Court and
Lower Appellate Court is observed and the findings recorded by Trial Court and Lower Appellate Court are found to be inconsistent with evidences produced by the parties or where legal propositions are not correctly interpreted, then revisional jurisdiction of High Court has to be exercised in order to secure ends of justice ---High Court set aside judgments and
decrees passed by two Courts below and decreed the suit filed by petitioners/plaintiffs ---
Revision was allowed, in circumstances.
Late Mst. Majeedan through Legal Heirs v. Late Muhammad Naseem through Legal
Heirs 2001 SCMR 345 ref.
Ganesh and another v. Dasso and another AIR 1927 All. 669; Noor Muhammad v.
Mst. Azmat -e-Bibi 2012 SCMR 1373; Brig. (R) Sher Afghan v. Mst. Sheeren Tahira 2010
SCMR 786; Abdul Rashid v. Muhammad Yaseen 2010 SCMR 1871 and Muhammad Ashraf v. Mst. Sairan Bibi through L.Rs. 2008 SCMR 1442 rel.
Bahlol Khan Kasi for Petitioners.
Rasool Bakhsh Baloch for Respondent.
Date of hearing: 5th December, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioners are aggrieved from
the judgments and decrees passed by the fora below, whereby the suit filed by petitioners
under section 9 of the Specific Relief Act, 1877 for possession and permanent injunction was dismissed by the Trial Court and the Appellate Court maintained the judgment and decree of the Trial Court.
2. Tersely, the relevant facts requiring due pondering are; the petitioners asserted in
their suit that they were in possession of a piece of land measuring 5,000 sq. ft which is situated in "Abadi -Deh". The petitioners claim that they had constructed a residential house
and a shop measuring 1,500 sq.ft, and subsequently the shop is being utilized on commercial basis as a Medical Store, whereas the remaining portion of the property in question was being utilized as a store. It is the case of petitioners that petitioner No.2, Rehmatullah, got seriously ill, and the petitioner No. 1, Ghulam Dastgir, accompanied him to Karachi for proper medical treatment; in their absence, the respondent took undue advantage and broke the locks and dispossessed the petitioners from the property in question except from the
Medical Store, which, according to the petitioners, is still in their possession. In this
backdrop, the petitioners filed the suit under Section 9 of the Specific Relief Act, 1877, which carried following prayers:
"I. It may be ordered that plaintiffs were in possession of the house in question
measuring 3500 sq. ft falling in Khasra No. 1062 Kawit/Khatooni 177/210 situated in Mahal Viala Kuchlak Mouza Kuchlak Tappa Kuchlak Distt: Quetta.
II. It may be ordered that plaintiffs had been dispossessed by defendant.
III. It may also be ordered that the dispossession is not in accordance with law.
IV. Defendant be directed to restore the vacant possession of the premises in question to the plaintiffs.
V. By way of permanent injunction the defendant be restrained not to interfere in the property in question.
VI. Cost of the suit may also be awarded to the plaintiffs."
3. That the suit was contested by the respondent by way of filing written statement, and
out of the pleadings of the parties, the following issues were framed by the Trial Court:
"1) Whether plaintiffs have been illegally dispossessed of suit property by the defendant within six months prior to institution of instant suit?
2) Whether plaintiffs are entitled to the relief claimed for?
3) Relief?"
4. That thereafter the Trial Court/ Civil Judge, Kuchlak dismissed the suit vide judgment
and decree dated 31.08.2021 which judgment and decree was maintained by the Additional
District Judge, Kuchlak vide judgment and decree dated 30.11.2021; the same have been impugned by the petitioners through this civil revision petition.
5. The Learned Counsel for the petitioners contended that the petitioners had proven the
fact beyond any doubt through oral and documentary evidence that they were dispossessed by the respondent illegally, without any justification and within six months of their dispossession, the petitioners had approached the Court of law for redressal of their grievance. The Learned Counsel further contended that the Trial Court has completely ignored the overwhelming documentary evidence in favour of the petitioners, and by misreading and non- reading the available material, reached at erroneous conclusion, and
dismissed the suit, which aspects were not even considered by the Appellate Court, as without discussing the intrinsic value of the evidence produced by the parties, the appeal so filed by the petitioners was also dismissed.
While refuting the arguments of the Learned Counsel for the petitioners, the Learned
Counsel appearing for the respondent contended that concurrent findings of fact are in favour of the respondent; the petitioners have badly failed to establish before the Trial Court that they were in possession of property in question and subsequently were dispossessed. The Learned Counsel maintained that the property in question is in fact the ancestral property of the petitioners and same was in their possession. The Learned Counsel relied upon the case of Late Mst. Majeedan through Legal Heirs v. Late Muhammad Naseem through Legal Heirs
1.
6. I have carefully examined the respective contentions of the parties in the light of
relevant provisions of law and have also perused record of the case. I have minutely and thoroughly perused the judgments and decrees passed by the fora below, and entire evidence has been thrashed out with the eminent assistance of the Learned Counsel of the parties.
7. The property in question is in Abadi -Deh land which is jointly owned by shareholders
of the Mouza. The transfer of such lands in revenue record as owner is not allowed, rather, only the superstructure is sold or bought which entry is incorporated in the relevant revenue record as "Malbadar".
8. The record transpires that the petitioners had produced the representatives of Sui
Southern Gas Company ('SSGC'), Quetta Electric Supply Company ('QESCO'), and Pakistan Telecom Communication Limited ('PTCL'), who got exhibited the relevant record with regard to utilities/services installed at the premises in question, which are in the name of petitioners, whereas the respondent had not produced a single documentary evidence which could prove that he had installed any of necessary utility or service at the property in question; though the respondent had produced DW5, the representative of QESCO, who had produced on record the utility bill in the name of one Rehmatullah son of Abdul Samad, but the respondent could not establish his connection with said Rehmatullah nor he could prove any nexus of said utility bill with the property in question.
9. The respondent and his witnesses have admitted that the petitioners are still in
possession of part of property in question where Medical Store is being run. It is very
relevant that DW1, Ameer Ahmed Khan, while answering question No.12 made the following admission which is reproduced as under:
10. The appraisal of the evidence produced by the parties divulges that the petitioners,
through oral and documentary evidence in the shape of utility bills of gas and electricity meters, established that they were in continuous possession of the property in question before they were dispossessed. The PW5, Saleh Muhammad, who lives next to the property in question, has also provided detailed account of illegal dispossession of petitioners from property in question, and despite lengthy cross -examination, his statement was not shaken.
Whereas, the oral evidence produced by the respondent, in order to prove his possession, lacks coherence, consistency and reliability.
11. The suit under section 9 of the Specific Relief Act, 1877 is an exception to the other
suits seeking relief of possession; section 9 of the ibid Act gives a specific privilege to person in possession to take action promptly in case he is dispossessed. It entitles him to succeed simply by establishing and proving following facts:
"I. That he was in possession.
II. That he had been dispossessed by the defendant.
III. The dispossession was illegal and without adopting due course of law.
IV. The dispossession took place within six months of filing suit.
V. The question of title either of the plaintiff or of the defendant cannot be raised or
adjudicated upon in such case, under section 9 of Specific Relief Act, 1877".
The above aspects of the interpretation of section 9 of the ibid Act, were considered
in the case of Ganesh and another v. Dasso and another
2, the relevant excerpt is reproduced
herein below:
"In suits under section 9, Specific Relief Act, the Court does not try in question of title and, therefore, the defendant cannot resist the plaintiff's suit on the ground of his being the rightful owner. No matter how good the title of the dispossession, the person previously in possession is entitled to a decree for possession in suit under section 9, Specific Relief Act, provided he brings the suit within six months of the date of his dispossession."
After thrashing out the facts and relevant provisions of law in the referred case, it was
held as under:
"This is not the case in suits for possession brought more than six months after the dispossession of the plaintiff. In such suits Courts have to try, question of title and, therefore, it is open to a defendant notwithstanding the previous possession of the plaintiff to resist the claim for possession by setting up and proving a title in himself. In other words, title is no defence in a suit under section 9, Specific Relief Act, but affords a conclusive defence in other suit"
12. The argument of the Learned Counsel for the respondent that since concurrent
findings of fact have been recorded by the Trial Court and Appellate Court, therefore, the
revisional jurisdiction of this Court cannot be exercised, this contention is without any substance; though, the revisional jurisdiction of this Court is sparingly used, and normally the concurrent findings of the fora below are not disturbed, but in case, complete misreading
and non- reading of the evidence by the Trial Court and Appellate Court is observed, and the
findings recorded by the Trial Court and Appellate Court are found to be inconsistent with
the evidences produced by the parties or where the legal propositions are not correctly interpreted, then the revisional jurisdiction of this Court has to be exercised in order to secure the ends of justice, Reliance in this regard is being placed upon the case titled as Noor Muhammad v. Mst. Azmat- e-Bibi
3, the relevant excerpt is reproduced herein below:
"6. There is no cavil to the proposition that the jurisdiction of High Court under
section 115, C.P.C. is narrower and that the concurrent findings of fact cannot be
disturbed in revisional jurisdiction unless courts below while recording findings of
fact had either misread the evidence or have ignored any material piece of evidence or
those are perverse and reflect some jurisdictional error. In Muhammad Akhtar v. Mst. Manna (2001 SCMR 1700) at page 1704, the Court held as follows: --
"We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with. In this regard reference can be made to 2000 SCMR 974 at 986 wherein it was observed as follows: --
"It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P. C. "
This view was reiterated in Ghulam Muhammad v. Ghulam Ali (2004 SCMR 1001)
wherein the Court held that "it is, settled principle of law that no sanctity can be
attached with the concurrent finding offact if it is found suffering from the defect of
misreading and non- reading of evidence and there is no impediment for the High
Court to correct such an error and illegality in the revisional jurisdiction."
A similar view was taken in Abdul Mateen v. Mustakhia (2006 SCMR 50) wherein at page 55, this Court held as follows: --
"The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision
would not call for interference unless it is established that the decision was based on
no evidence or the evidence relied upon was inadmissible or the decision was
perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re -
examination of evidence and in the present case, the perusal of record would not show
any misreading or non- reading of evidence brought on the record by the parties or
suggest that the Court of first instance and the Appellate Court had drawn wrong
conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction."
In Muhammad Khaqan v. Trustees of the Port of Karachi (2008 SCMR 428) at page
431, the Court observed as follows: --
"This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings."
Further reliance is being placed upon the cases titled as Brig. (R) Sher Afghan v. Mst.
Sheeren Tahira
4, Abdul Rashid v. Muhammad Yaseen5 and Muhammad Ashraf v. Mst.
Sairan Bibi through L.Rs.6.
In the wake of above deliberations, the impugned judgments and decrees dated
31.08.2021 and 30.11.2021, respectively passed by Civil Judge, Kuchlak and Additional District Judge, Kuchlak are set aside, consequently, the suit filed by the petitioners is decreed and the respondent is directed to handover the vacant possession of the property in question to the petitioners forthwith, no order as to costs. The petition is allowed.
MH/61/Bal.Revision Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.