Stereo. H C J D A 38.

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

JUDGMENT:

C.R. No.946 of 2007

Irshad Ahmad and others V/S Usama Hassan and others

Date of Hearing: 08.12.2015 .

Petitioners by: Mr. Naveed Sheharyar Shaikh, Advocate .
Respondents by: Syed Muhammad Shah, Advocate .

Ali Akbar Qureshi, J:- This civil revision assails the

judgment and decree dated 19.12.2006 & 18.04.2006,
passed by the learned Courts below, whereby the suit for
possession filed by the respondents was decreed against the
petitioners.
2. The necessary facts for the disposal of this revision
petition are that; the respondents/plaintiffs (hereinafter
mentioned as respondents) instituted a suit for possession
against the petitioners/defendants (hereinafter mentioned as
petitioners) on the grounds, that the respondents purchased
the suit land from one Musharaf Nawaz for a consideration
of Rs.60,000/- through Registered Sale Deed No.156, dated
20.04.2001; the sale was given effect in the revenue record
against Mutation No.8857, dated 27.08.2001; that the
respondents raised the four-wall and also installed a door
and the same was given to petitioner No.1/Irshad Ahmad,
who is policeman for few months on the promise, that the
same shall be vacated as and when the respondents will ask;
and when the respondents demanded the possession of the
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C.R. No.946 of 2007

suit land, the petitioners refused to accede the lawful

demand.
Petitioners in response of the notice appeared in the
Court, filed their contesting written statement, wherein it
was specifically stated, that the petitioners also purchased
the suit land from the same vendor namely Musharaf
Nawaz and having the possession in their own rights.
Learned trial court framed necessary issues out of the
divergent pleadings of the parties recorded the evidence and
finally decreed the suit vide judgment & decree dated
18.04.2006, against which an appeal was filed by the
petitioners, which too was dismissed vide judgment &
decree dated 19.12.2006. Hence, this revision petition.
3. Learned counsel for the petitioners mainly argued the
following points:-
(1) That the format of the suit is in accordance with the
terms of Section 8 and not Section 9 of the Specific
Relief Act, 1877, therefore, the respondents were
required to prove their title;
(2) That the respondents failed to produce the marginal
witnesses, identifier or even buyer of the sale deed
allegedly executed in their favour by Musharaf
Nawaz the vendor, therefore, this type of the
document cannot be received or relied in evidence.
Reliance is placed on “Hafiz Tassaduq Hussain v.
Muhammad Din through Legal Heirs and others”
(PLD 2011 SC 241), also submitted, that the
respondents have also failed to fulfill the
requirements of Articles 70 & 79 of the Qanun-e-
Shahadat Order, 1984.
(3) That it is the duty of the respondents to establish their
ownership without any shadow of doubt. Reliance is
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C.R. No.946 of 2007

placed on “Manzoor Ahgmad and 9 others v. Ghulam

Nabi and 5 others” (2010 CLC 350) and mere
registration does not mean the execution of the
document/sale deed.
4. Further submitted, that the petitioners at the time of
filing the written statement specifically stated, that the
petitioners have also purchased the land from the same
vendor i.e. Musharaf Nawaz and the petitioners to prove the
sale deed produced two marginal witnesses DW2 and DW3
as well as Halqa Patwari, whereas the respondents while
filing the suit for possession did not ask for the declaration
of the suit and that cancellation of the sale deed executed in
favour of the petitioners, therefore, the suit is not
maintainable. Reliance is placed on “Muhammad Aslam v.
Mst. Ferozi and others” (PLD 2001 SC 213), and “Ali
Muhammad and another v. Muhammad Bashir and
another” (2012 SCMR 930).
5. Both the parties i.e. petitioner and the respondents
purchased the land from one vendor and out of same Khata
i.e. Khata No.210, therefore, suit for possession against the
co-sharer is not maintainable. Reliance is placed on “Mst.
Resham Bibi and others v. Lal Din and others” (1999
SCMR 2325), “Khan Mir Daud Khan and others v.
Mahrullah and others” (PLJ 2000 SC 1939) and “Mst.
Ramzan Bibi v. Addl: District Judge and others” (1995
CLC 1506).
6. As regards the earlier suit filed by the petitioner
wherein the plaint was rejected and rejection of the plaint is
not resjudicata. Reliance is placed on “Mst. Zubaida v. City
District Government, Karachi” (PLD 2004 Karachi 304).
7. On the other hand, learned counsel for the
respondents argued the case on the following lines; that the
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C.R. No.946 of 2007

suit land was purchased on 20.04.2001 and four-walls were

constructed and was given for a few months to petitioner
No.1, for his use who has refused to return the same; that
the suit has been filed by the respondents under Section 9 of
the Specific Relief Act, 1877, and not under Section 8 and
mere non-mentioning of the provision of law does not affect
the rights of the respondents; that the sale deed was
executed in favour of the respondents prior to sale deed
executed in favour of the petitioners, therefore, the sale
deed executed prior in time is to be given weightage.
“Abdul Rashid v. Muhammad Yaseen and another” (2010
SCMR 1871) and “Mst. Shah Sultan and 45 others v. Chief
Commissioner of Islamabad and 5 others” (2004 CLC 145).
Learned counsel also referred the cross examination
of patwari, who appeared as DW.
8. Heard. Record perused.
9. The record of the case was perused with the
assistance of learned counsel for the parties. Firstly it is to
be seen as to whether the suit filed by the respondents
according to its contents and averments falls within the
ambit of Sections 8 or 9 of the Specific Relief Act, 1877.
For ready reference, Sections 8 & 9 are re-produced
hereunder:-
8. Recovery of specific immovable property. A person
entitled to the possession of specific immovable property
may recover it in the manner prescribed by the Code of
Civil Procedure.

9. Suit by person dispossessed of immovable

property. If any person is dispossessed without his
consent of immovable property otherwise than in due
course of law, he or any person claiming through him
may, by suit 2[* * *] recover possession thereof,
notwithstanding any other title that may be set up in the
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 3[the Central Government or any Provincial
Government].
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C.R. No.946 of 2007

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.

The aforesaid provisions of law may be simply interpreted

in the manners, that under Section 8, the recovery of the
immovable property can be prayed on the basis of the title,
whereas under section 9, a person who has been
dispossessed without his consent can be asked for the
recovery of the immovable property. The averments of the
suit filed by the respondents were examined, wherein the
respondents in first paragraph of the suit has given the detail
of the suit property purchased by him from one Musharaf
Nawaz against consideration through a registered sale deed
and sought the recovery of possession of the land purchased
by him. Therefore, it can safely be observed, that the suit
filed by the respondents does fall within the ambit of
Section 8 of the Specific Relief Act.
10. There is another distinction sussing out from the
record, that the respondents with their own consent
handed over the possession of the suit land to the
petitioners allegedly to use the same for a certain period
and it was agreed that the same will be returned as and
when the respondents will claim, therefore, the provision of
Section 8 of Act ibid is fully applicable and not Section 9.
11. The afore-referred averments of the suit filed by the
respondents offend the provisions of Section 9 of the Act
ibid, wherein it is clearly mentioned, that the suit under
Section 9 can only be filed if the person has been
dispossessed without his consent from the immovable
property, whereas in this case the situation is otherwise as
the respondents with their free will and consent gave the
possession of the property to the petitioners, as alleged by
them, to use the same for certain period. By this way, the
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C.R. No.946 of 2007

contention raised by the learned counsel for the respondents

during the course of arguments, that the respondents filed
the suit under Section 9 instead of under Section 8 of the
Act ibid, is contrary to the averments of the plaint filed by
them and the respondents are estopped by their own
conduct which is floating on the surface of the record to
claim, that the suit has been filed under Section 9 of the Act
ibid.
On this proposition, the Hon’ble Supreme Court of
Pakistan, has ruled in the recent judgment “Hazrat Ullah
and others v. Rahim Gul and others” (PLD 2014 SC 380),
that in a suit filed under Section 8 of the Specific Relief
Act, 1877, the declaration of the entitlement is an inbuilt
relief claimed by the plaintiff. Relevant paragraph is re-
produced as under:-
“As far as the plea that Mst. Jarjan had never
challenged the sale deed dated 19-04-1938 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 the basis of the judicial verdict i.e. the decree,
and the sale deed shall not be a hindrance in her
way. ”
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C.R. No.946 of 2007

In the judgment (supra) the Hon'ble Supreme Court of

Pakistan has observed that in case the suit has been filed
under section 8 of the Specific Relief Act, 1877, the
declaration of the document would be an inbuilt relief but in
this case, the learned counsel for the respondents
categorically submitted during the course of arguments that
the respondents have filed the suit u/s 9 of the Specific
Relief Act, 1877, and not under section 8 of the said Act, to
recover the possession. Further, the respondents as
established on record, could not produce even a single
witness, scribe or identifier to fulfill the mandatory
requirement of Article 17(2) and 79 of the Qanoon-e-
Shahadat Order, 1984, to prove their title (sale deed) in the
circumstances, when the respondents claimed the
possession on the basis of a title and it has already been
observed, that according to the averments of the plaint and
submission made by the respondents, the suit filed by the
respondents falls in the ambit of Section 8 instead of
Section 9 of the Specific Relief Act, 1877.
12. As depicts from the record and not denied by the
learned counsel for the respondents, that the respondents
did not produce the marginal witnesses to fulfill the
mandatory requirement of Article 17(2) & 79 of Qanun-e-
Shahdat Order, 1984. Even the respondents did not produce
the buyer and the identifier therefore, the petitioners
completely failed to prove their title, hence, are not entitled
to ask for the recovery of the possession under section 8 of
the Specific Relief Act, 1877. In these circumstances, the
sale deed on the basis of which, the respondents have filed
the suit, is otherwise not admissible in law. Reliance is
placed on “Farzand Ali and another v. Khuda Bakhash and
others” (PLD 2015 SC 187)
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C.R. No.946 of 2007

13. The Hon'ble Supreme Court of Pakistan in another

judgment cited as “Ali Muhammad and another v.
Muhammad Bashir and anoter” (2012 SCMR 930) has
dealt this proposition in the following esteemed words:
“7. We have heard learned counsel for the parties
and have also perused the available record. It is an
admitted fact that both the suits were filed on 17-2-
1979 by appellant Ali Muhammad and Muhammad
Ramzan (appellant in the other appeal) against
Bashir and Fateh Muhammad respectively seeking
declaration and challenging the registered pata
milkiat, which was executed on 21-07-1975 and
registered on 24-07-1975, to be declared as
ineffective. These deeds were produced in evidence.
No objection to the production of these deeds was
taken by the appellants before the trial Court nor
their authenticity was challenged. These deeds were
produced and exhibited. On the basis of these deeds,
the respondents in both the appeals, claimed their
right in the property. The format of the suit is
confined to declaration of title. In the plaint, the
appellants in both the appeals, have admitted that
the respondents are in physical possession of half
portion of the properties and were in knowledge of
the registered instruments of pata milkiat in favour
of the respondents. In the face of such material, the
appellants have not sought cancellation of registered
instruments in terms of section 39 of the Specific
Relief Act in the suit nor direction of their ejectment
in suits have been sought. When confronted with this
situation, the learned counsel for the appellants
could not offer any plausible explanation except that
he contended that the appellants had the right to file
a separate suit for possession. Even this argument is
without substance. The law does not permit a second
suit if a right to the plaintiff is available at the time
of filing of the suit. A second suit in such-like
situation is otherwise barred under Rule 2, Order II,
C.P.C.

In paragraph No.10 & 11 of this judgment it has been

observed, that:
“In these circumstances, we are of the considered
view that the appellants have failed to establish
before the trial Court that they have the right to seek
declaration of title of the land in the absence of
specific prayer of cancellation of documents and
possession, more so when the appellants have
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C.R. No.946 of 2007

admitted possession on the strength of registered

documents coupled with the evidence of Sher
Muhammad which went un-rebutted. We, therefore,
hold that the suits were not competent, in the first
place and in the second place evidence of Sher
Muhammad has proved the arrangement between the
parties pursuant to which the registered instruments
were executed by appellants.
11. For the aforesaid reasons, both these
appeals are dismissed with no order as to costs
and the judgment of the trial Court is
maintained.”

There is another judgment titled “Muhammad Aslam

v. Mst. Ferozi and others” (PLD 2001 SC 213), which
deals with the same proposition wherein it is observed, that:
“It is also not understandable as to how a suit
for possession had been filed without seeking
declaration in respect of title.”

14. Needless to reiterate, that the respondents filed the

suit for possession on the basis of the title deed, whereas the
petitioners/defendants while filing the written statement
specifically stated, that they are in possession of the suit
land on the basis of a registered sale deed but the petitioners
neither amended the plaint nor sought the cancellation of
the sale deed claimed by the petitioners.
15. As regards the concurrent finding, the Hon'ble
Supreme Court of Pakistan has observed in plethora of
judgment that the concurrent findings could not be
considered as sacrosanct and this Court is competent to
interfere if such findings are based on insufficient evidence,
misreading of evidence, non-consideration of material
evidence, erroneous, presumption of facts and consideration
of inadmissible evidence. Reliance is placed on
“Muhammad Aslam v. Mst. Ferozi and others” (PLD 2001
SC 213).
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C.R. No.946 of 2007

16. In view of above, it is held, that the suit filed by the

respondents falls within the ambit of Section 8 of Specific
Relief Act, 1877, and not under Section 9 of the Act ibid
and the respondents have failed to prove their title and are
not entitled to ask for the possession of the suit land.
17. Resultantly, this revision petition is allowed, the
judgment and decree passed by learned Courts below is set
aside and the suit filed by the respondents is dismissed. No
order as to costs.

(Ali Akbar Qureshi)

Judge

Approved for reporting.

Judge

*Zia-ur-Rehman Farooqi*