CASE BRIEFS ON SECTION 8 & 9 OF

THE SPECIFIC RELIEF ACT, 1877

05-08-19

NAME: SAVEEZA KABSHA

ROLL NO: 2015-LLB-022
SEMESTER: VII Saveeza Kabsha
COURSE: EQUITY & SPECIFIC RELIEF Constitutional Law
INSTRUCTOR: MA’AM MUNAZZA RAZZAQ
9/17/2018
DEPTT: LAW
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 1

TABLE OF CONTENTS

Specific Relief Act 1877 ………………………………………………………………….…. 02

CASE BRIEFS

PLJ 2008 Karachi High Court 121…………………………………………..….….. 04

PLJ 2014 SC 385 ………….……………………………………………………………........ 06

PLJ 2001 Lahore 1160 ………………………………………………………….…………… 09

PLJ 2017 Lahore 227 ………………………………………………………………...……… 13

SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 2

SPECIFIC RELIEF ACT, 1877

The Specific Relief Act, 1877 is an Act of the Parliament of Pakistan which provides remedies
for persons whose civil or contractual rights have been violated. The following kinds of
remedies may be granted by a court under the provisions of the Specific Relief Act:

 Recovery of possession of property

 Specific performance of contracts

 Rectification of instruments

 Rescission of contracts

 Cancellation of Instruments

 Declaratory decrees

 Injunction

CHAPTER I

OF RECOVERING POSSESSION OF PROPERTY

POSSESSION OF IMMOVEBLE PROPERTY

SECTION 8

Recovery of specific immoveable property.

A person entitled to the possession of specific immoveable property may recover it in the
manner prescribed by the Code of Civil Procedure
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 3

EXPLANATION

If a person claims to be legally entitled to some immovable property, he can only adopt the
procedure prescribed by the Code of Civil Procedure for recovery of same. Code of Civil
Procedure is a procedural law which lays down steps to be observed in civil cases. Thus
Specific Relief Act runs parallel to the Code of Civil Procedure.

SECTION 9

Suit by person dispossessed of immoveable property.

If any person is dispossessed without his consent of immoveable property otherwise than in
due course of law, he or any person claiming through him may, by suit recover possession
thereof, notwithstanding any other title that may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property
and to recover possession thereof.

No suit under this section shall be brought against the Federal Government or any Provincial
Government.

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor
shall any review of any such order or decree be allowed.

EXPLANATION

The law provides a relief under Section 9 of the Specific Relief Act to a person who has been
dispossessed of his property but to bring the case within the ambit of this provision the
following conditions have to be met, namely:-

i. That the plaintiff was in possession;

ii. That he had been dispossessed by the defendant;
iii. That the dispossession is without due process of law; and
iv. That the dispossession took place within six months of the suit.
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 4

CASES RELATED TO SECTION 8

PLJ 2008 Karachi High Court 121

MUHAMMAD SIDDIQ
Versus
MUSHTAQ ALI and 5 others

FACTS

Applicant purchased a plot in Korangi, Karachi, by way of sale-deed for a sum of Rs.36,000
from the Respondent No. 2 on the basis of General Power of Attorney given to him by his
father Respondent No. 1. After purchase the applicant obtained loan from NBP. The applicant
made construction and spent huge amount.

The Respondent No. 1 filed suit in 2004 in the Court of Senior Civil Judge Karachi East for
declaration, cancellation and possession alleging that he has cancelled the power of attorney in
favour of his son Respondent No. 2. Notice was issued but the same were not received by the
applicant. There was publication in newspaper at Karachi, Lahore. The applicant in fact had no
knowledge of filing the suit as he is uneducated. The suit was dismissed on 26-1-2005.

Revision application is directed against the order/judgment dated 21-4-2005 and decree dated
13-5-2005 passed by the learned District and Sessions Judge, Karachi East in Civil Appeal No.
51 of 2005, whereby the appeal was allowed.

ISSUES

 Who has a right on the property?

DECISION

The Respondent No. 1 had prayed for declaration to the effect that registered irrevocable power
of attorney executed by him in favour of his son is a will and same is not liable to be exercised
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 5

during the lifetime although there is very much difference between power of attorney and will.
Section 188 of Contract Act describes to the extent of agent’s authority. An agent having an
authority to do an act has authority to do every lawful act and thing for the execution of it. A
power of attorney is an instrument by which authority is conferred on an agent. Such an
instrument is construed strictly and confers only such authority as is given expressly or by
necessary implication. The Irrevocable General Power of Attorney in suit indicates that same
is to be operatable during life time of plaintiff and after death of plaintiff same would operate
as Will. The alleged cancellation of registered General Power of Attorney does not bear the
signature of the attorney of the Respondent No. 1 nor it was got registered. Respondent No. 2
being son of attorney of Respondent No. 1 sold the property in question to applicant who had
power to do so. It appears that the learned Appellate Court has not considered all the above
facts and passed the impugned order hastily.

The revision was allowed and the impugned judgment and decree dated 21-4-2005 and 13-5-
2005 were are set aside, suit was dismissed and resultantly the possession of the property in
question was restored to the applicant.

RESULT

Application allowed.
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 6

PLJ 2014 SC 835

HAZRATULLAH and others

Versus
RAHIM GUL and others

FACTS

The appellants filed a suit for declaration claiming ownership of the suit land measuring
2 kanals and 10 marlas bearing Khasra No. 1143 situated in mouza Nodeh Bala on the basis
that Qudratullah, the father of the appellants vide sale-deed dated 19.4.1938 had purchased
28 kanals and 9 marlas of land from Mst. Marjan, the original owner (the predecessor-in-
interest of the respondents) having different khasra numbers including the khasra number
mentioned above and a Mutation No. 566 dated 11.12.1944 was also sanctioned in his favour.
This suit was contested by the respondents which was decreed by the trial Court. The first
appeal of the respondents failed but in the revisional jurisdiction, the High Court by setting
aside the two verdicts of the Courts below, dismissed the appellants' suit.

The other important factual aspect of the matter is that Mst. Marjan filed a suit in the year 1939
for possession against Qudratullah and some others with regard to the land, subject matter of
this suit. Qudratullah was proceeded ex-parte in this matter and the suit was decreed on
13.1.1940 to the following effect:

"This is a suit for possession of the land in suit on the objections that plaintiff is the owner of
the land in suit and that defendants have taken illegal possession. Defendant 1 admit their
claim. Defendants No. 2 & 3 are ex-parte. From the evidence produced the claim is proved
prima-facie as against them also. I therefore grant plaintiff a decree for possession of the land
in suit with costs against defendant."

ISSUES

 Whether the present suit maintainable?

 Who is rightfully entitled to the land?
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 7

Who holds valid title to suit property?

DECISION

From the judgment of this Court dated 6.12.1992, it is clear that including all such documents
which the respondents produced before this Court were made part of the evidence of the case
and the matter was remanded to the first appellate Court to decide the same (the appeal of the
respondents) afresh on the basis of such material, however, this Court also allowed opportunity
to the parties to lead any further evidence, obviously if they so desired. The appellants did not
adduce any further evidence to rebut the judgment dated 13.1.1940; it is also
not controverted at any stage of the proceeding if Qudratullah was not a party to that matter; or
that the subject matter of the decree dated 13.1.1940 was not in respect of the suit land (land
involved herein), therefore the plea has no force.

With regard to the other issue that the sale-deed dated 19.4.1938 was not challenged in the
earlier suit filed by Mst. Marjan (the predecessor-in-interest of the respondents), coupled with
the appellants' attack that the decree dated 13.1.1940 was ex-parte; it is held that an ex-parte
decree is valid, having some legal effects and as good as a contested decree, with the exception
that the modes and mechanism for the setting aside such decree may be more; in any case, after
having attained the knowledge of that decree, the appellants never assailed it through any direct
proceedings, i.e. either under Order IX Rule 13, CPC or any other remedy available to them
under the law, thus for all intents and purposes, the said judgment and decree had attained
finality and would be binding upon the appellants.

As far as the plea that Mst. Marjan had never challenged the sale-deed dated 19.4.1938
in favour of Qudratullah in the suit, but only filed a suit for possession, it may be held that in a
suit under Section 8 of the Specific Relief Act, 1877, the declaration of the entitlement is an
inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to
the possession, it means that he/she has been declared to be entitled, which includes the
declaration of title of the plaintiff qua the property, and this is integrated into the decree for
possession; and when Mst. Marjan had attained the decree for possession and found entitled to
the possession in terms of Section 8 (supra), undoubtedly the sale-deed dated 19.4.1938
in favour of Qudratullah irrespective of it not being directly challenged, would render the
above sale-deed as nugatory and redundant; because the title of Mst. Marjan shall be valued on
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 8

the basis of the judicial verdict i.e. the decree, and the sale-deed shall not be a hindrance in her
way.

RESULT

Appeal dismissed
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 9

CASES RELATED TO SECTION 9

PLJ 2001 Lahore 1160

MUHAMMAD DIN
Versus
MST ZAINAB BIBI and 3 others

FACTS

Respondent/plaintiff filed suit for possession of the house wherein she contended that she was
widow, and on two Marias Estate land, she constructed a room and four wall, and she had been
residing there for the last 16 years, and that she had obtained connection from WAPDA and
that two years prior to the filing of the suit she was deprived of the said house fraudulently
by the petitioner/defendant.

The suit was dismissed on 13.6.1991. Respondent-plaintiffs appeal was allowed by the
Additional District Judge in terms of which, the learned trial Court was directed to decide
Issues Nos. 3 and 4 afresh. With regard to Issue No. 5 the learned appellate Court observed
as under:

"Apart from it the Government has made many declarations in which possessory rights on
the State Land are recognized of certain persons and also has made declaration to give them
proprietary rights. On this score the plaintiff has a possessory title in the house in dispute."

In remand, the trial Court decided the issue afresh in favour of the respondent/plaintiff
and held that the latter had possessory title and the petitioner/defendant was directed to
pay the rent/mesne profits at the rate of Rs. 100/- P.M. from March 1986 till May 1992 of
the total amount so calculated came to Rs. 7,400/-. This order was challenged in appeal and
the Additional District Judge dismissed the same.

ISSUES
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 10

 Whether the plaintiff has no cause of action?

 Whether the disputed property is still owned by the Provincial
Government and Province is a necessary party?
 Whether the plaintiff is estopped to file this suit?
 Whether the suit is false frivolous vexatious and the defendant
is entitled to special costs?
 Whether the plaintiff is owner of the disputed property?
 Whether the plaintiff is entitled to mesne profits & possession
of the suit property?

DECISION

The law provides a prompt relief under Section 9 of the Specific Relief Act to a person who
has been dispossessed of his property but to bring the case within the ambit of this provision
the following conditions have to be met, namely:-

v. That the plaintiff was in possession;

vi. That he had been dispossessed by the defendant;
vii. That the dispossession is without due process of law; and
viii. That the dispossession took place within six months of the suit.

The relief provided in Section 8, however, stipulate distinct jurisdictional facts. This section
mandates that a person seeking recovery of possession pf an immovable property on the basis
of a title can file a suit for ejectment in the manner prescribed by the Code of Civil Procedure.
In the former section, there is no reference of title of the person dispossessed with
regard to the property in question and the suit has to be filed within six months of
dispossession. In the latter section (Section 8) however, the expression used is "a person
entitled to" and there is no time limit within which the suit can be brought.

In the instant case the respondent/plaintiff had alleged that two years prior to the filing
of the suit he had been dispossessed of the house in question and that she had raised the
construction on the State Land and was living there for the last more than 16 years. Thus
the suit filed by the respondent/plaintiff was not strictly a suit under Section, 9 of the
Specific Relief Act but under Section 8 of the same. The order dismissing
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 11

respondent's/plaintiffs suit dated 13.6.1991, was an appealable order, appeal was filed and
the learned appellate Court vide order, dated 30.3.1992, allowed the same and directed fresh
decision with regard to Issues Nos. 3 and 6 but decided Issue No. 5 in favour of the
respondent/plaintiff. The finding on Issue No. 5 has not been challenged by the petitioner, in
terms of which, it has been held that respondent/plaintiff, "has a possessory title in the house
in dispute".

After the remand the trial Court had decided Issues Nos. 3 and 6 in favour of the respondent-
Plaintiff and the judgment and decree of the trial Court has been upheld by the Additional
District Judge which is impugned in this petition. The learned appellate Court without
discussing the evidence or the merits of the case proceeded to dismiss petitioner's/defendant's
appeal shortly on the grounds that since the suit filed by respondent/plaintiff was under
Section 9 of the Specific Relief Act, therefore, no appeal was competent. This finding of
the learned appellate Court is not tenable because it has already been discussed above that
respondent-plaintiffs suit was primarily a suit under Section 8 of the Specific Relief Act and
not under Section 9 and, therefore, the second appeal on which the impugned order, dated
9.10.1994 was passed was competent.

Coming to the findings given on Issues Nos. 3, 5 and 6 admittedly, petitioner never
challenged the finding on Issue No. 5 given by the learned Additional District Judge. The
same, therefore, has attained finality and it stands conclusively proved that
respondent/plaintiff has possessory rights qua the house in dispute. That being so, the
findings on Issues Nos. 3 and 6 by the learned trial Court in the judgment. On Issue No. 3
there is evidence that the house was constructed by the respondent-plaintiff which was not
even denied before this Court during arguments by petitioner's learned counsel. There is
evidence to the effect that the petitioner had purchased the superstructure of the
house vide Exh. D-l from Naeem Akhtar Khan who had defective possessory title. The
plea of estoppel, therefore, was rightly dismissed by the learned trial Court.

On Issue No. 6 there is evidence that petitioner/defendant was in illegal possession

for the last more than two years before filing of the suit and the amount of rent/mesne profit
calculated by the trial Court has neither been challenged specifically in the body of the
petition nor during arguments.
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 12

RESULT

Petition dismissed.
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 13

PLJ 2017 Lahore 227

MUHAMMAD RAMZAN
Versus
ADDL. DISTRICT JUDGE

FACTS

Respondents/plaintiffs filed a suit for possession under Section 9 of Specific Relief Act with
the averments that plaintiffs are owner in possession of the agricultural land and suit property
is as Shamilat Deh while defendants have no concern whatsoever with the suit property while
defendants interfered into their possession and they filed suit for permanent injunction and stay
order was issued by the learned Court but despite of stay order of the Court, defendants
destroyed the crop of plaintiffs.

The defendants dispossessed the plaintiffs illegally and unlawfully and in this connection case
FIR was registered. Hence, the suit. The defendants contested the suit by filing the written
statement wherein they raised legal and factual points and specifically denied the execution of
exchange deed. Out of divergent pleadings of the parties, issues were framed by the learned
trial Court. The parties produced their respective evidence and after recording the same, learned
trial Court decreed the suit of the plaintiffs/respondents.

Feeling aggrieved, one of the 07 defendants i.e. Defendant No. 1 filed revision petition and the
learned Additional District Judge dismissed the same. Being dissatisfied, the
petitioner/Defendant No. 1 has filed the instant revision petition and challenged the validity of
the judgments and decrees passed by the learned Courts below.

ISSUES

 Whether the petition is maintainable?

DECISION
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 14

It is well settled proposition of law that Section 9 of the Specific Relief Act, 1877 is entirely a
different kind of action because it gives a special privilege to persons in possession to take
action promptly on their dispossession of immovable property and the dispossessed persons
are entitled to succeed simply by proving that they were in possession and had been
dispossessed by the defendants without due course of law and the dispossession had taken place
within six months of the suit without raising or discussing the question of title either of the
plaintiffs or defendants.

Mian Mohammad Kamal/one of the plaintiffs appeared and deposed as PW-1. He categorically
deposed that the plaintiffs are the real brothers and were in possession of the suit property for
the last 50 years but they were dispossessed from the suit property. Abdul Majeed/PW-2/tenant
of the plaintiffs also supported the version of the plaintiffs. Both the PWs were subjected to
cross-examination but there exist no substantial variations/contradictions in the deposition of-
PWs. The plaintiffs exhibited documentary evidence i.e. Ex.P-1 to Ex.P-8 to prove their case
of possession and dispossession. Hence, the plaintiffs/respondents proved their possession of
suit land and thereafter dispossession by the defendants through oral and documentary
evidence.

By minutely perusing the contents of pleadings, oral evidence of PWs/DWs as well as

documentary evidence, then remains no doubt that the plaintiffs were in possession of suit land
but were dispossessed by the defendants on 04.06.2008 as conceded by petitioner himself as
PW-1 and the plaintiffs took prompt action by filing instant suit on 27.11.2008 i.e. within six
month of dispossession.

Even otherwise; with respect to interference in concurrent findings of the Courts below,
the Hon’ble Supreme Court of Pakistan in a case reported as Mst. Farhat Jabeen vs.
Muhammad Safdar and others (2011 SCMR 1073) has held that:

“It is settled rule by now that interference in the findings of facts concurrently arrived
at by the Courts should not be lightly made, merely for the reason that another
conclusion shall be possibly drawn, on the reappraisal of the evidence; rather
interference is restricted to ‘the cases of misreading and non-reading of material
evidence which has bearing on the fate of the case.”
SECTION 8 & 9 OF THE SPECIFIC RELIEF ACT 1877 15

In the present case, no such defects have been pointed out by the learned counsel for petitioner
in order to seek interference by this Court. Learned Courts below have meticulously examined
the entire evidence of the parties and thereafter reached at the conclusion regarding the
controversy. Neither any misreading or non-reading of evidence on record nor any infirmity,
legal or factual, has been pointed out in the impugned judgments and decrees passed by the
learned Court below, therefore, this petition is dismissed.

RESULT

Petition dismissed.