Sahib Jan etc Vs Malik Lchha etc

JADGMENT SHEET

II{ THE PESHAWAR HIGH COURT

ABBO.TTABAD BEI{CH

(ludicial Department) C.R No. 08-4/2004

Sahib Jan & others (Petitioner/s)

VS

Malik Ichha & others.

(Respondent/s)

Present Mr. Tanveer Ahmed Mughal, Advocate for the petitioner.

Mr. Tahir Hussain Lughmani, Advocate for the respondents.

Dates of hearing: 23.05.2025

JUDGMENT

SADIO ALI, L Through the instant civil revision petition, the petitioners have challenged the judgment & decree of learned District JudgelZilaQazi Kohistan, dated 30.09.2003, whereby the appeal filed by the petitioner against the judgment and decree of the learned Senior Civil Judge/Aala Illaqa Qazi, Kohistan dated 26.02.2003 was dismissed.

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2.Briefly the facts leading to filing of instant civil revision are that a Suit No. 38/1 was instituted in the year 2001by the respondents Malik Ichha etc. seeking decree for perpetual injunction against the petitioners, in respect of property detailed in the heading of plaint.

In Para-Bay, possession was also sought. It was claimed by the respondents that the suit property was their ancestral ownership, in respect whereof, earlier decisions of different Courts were also in their favour and their t5120 houses are also situated therein, but the petitioners defendants No. 7 to 7, in collusion with defendants No. 8 to 10 have taken over possession of the suit property, therefore, they brought the suit seeking restoration of possession to them as well as refraining the petitioners/defendants from interference in the suit property. The suit was contested by the petitioners by filing their written statement. In the written statement, it was averred that the lis stands decided in the year 1985 and the suit property is owned and possessed by defendant No. 1. The divergent pleadings of the parties were reduced into dd issues by the learned trial Court and after recording pro and contra evidence, the learned trial Court dismissed the suit vide judgment and decree dated 26.02.2003, with permission to the respondents/ plaintiffs to bring fresh suit. Both the parties assailed the judgment and decree of the learned trial Court through their separate appeals before the learned District JudgelZilla Qazi Kohistan. The learned District JudgelZilla Qazi Kohistan, vide his judgment

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dated 30.09.2003, accepted appeal of the respondents/ plaintiffs and decreed their suit, whereas the appeal of the present petitioners was dismissed. The judgment and decree of the learned appellate Court was assailed by the petitioners through instant Civil Revision before this Court. This Court, vide judgment dated 22.12.2010, accepted the revision petition by setting aside the judgment and decree of the learned appellate Court and restoring the judgment and decree of the learned trial Court. The judgment of this Court was assailed before the apex Court through Civil Appeal No. 373 of 2011. The honourable Supreme Court of Pakistan, vide judgment dated 21.03.2016, set-aside the judgment passed by this Court in Civil Revision No. 08 of 2004 dated 22.12.2010 and remanded the case back to this Court for decision afresh, after hearing the parties, by holding;

c "We have examined the impugned Judgment. It appears that appellate .judgment and Decree has been set aside by way of the impugned judgment without disclosing any cogent reason. The evidence available on the record has not been considered. The legal status of the Respondent has not been taken into consideration. The question of maintainability of the suit remained unanswered. The real matter in controversy by factual and legal inter se the parties has

escaped adjudication. Learned counsel appearing on behalf of the Respondents has not been able to persuade us that by way of the impugned judgment, the controversy has been properly identified and decided with requisite reosoning. "

3.After remand of the case, the detailed arguments of learned counsel for the parties were heard and available record was minutely sifted.

4.Since the matter stands remanded from the honourable Supreme Court of Pakistan with the abovementioned observations, therefore, this Court deems it appropriate to re-decide the revision petition in hand, in line with the observations recorded by the apex Court. The observations recorded by the honourable Supreme Court of Pakistan inpara-4 of the judgment are "the evidence available on the record has not been considered. The legal status of the Respondents has not been taken into consideration.

The question of maintainabiltty of the suit remained o,f unqnswered. The real matter in controversy both factual and legal inter se the parties has escaped adjudication. "

5.At first instance, the evidence available on record is reconsidered. The plaintiffs/respondents as

well as defendants/petitioners produced and examined only one/one witness in support of their assertions The PW-l Haji Muhammad Jan stated that in the year 1987, defendant Malik Jan had filed a suit in respect of the suit property, however, in view of the decision of Jirga, which was made rule of the Court, the suit was dismissed. Attested copies were exhibited as Ex PW- ll2, without any objection from the other side. The Award was endorsed by the Deputy Commissioner Kohistan, copy whereof was exhibited as Ex PW-1/3.

Another decision of the elders of locality in respect of the suit property, pertarning to the year 1963 was exhibited as Ex PW-1/4 and Ex PW-1/5. Similarly, another decision in respect of the suit property, rendered by the august Supreme Court of Pakistan, was exhibited as Ex PW-1/6. During his cross sf examination, he admitted that the Sazeen village is comprised of 160011700 persons and the suit property is their joint ownership. He also admitted that they are representing the co-owners as they were authorized through a Jirga to file suit against the defendants/ petitioners. He could not disclose the exact number of houses constructed in the suit property and also disclosed that from the last 516 years, he has not visited the suit property. On the other hand, the

petitioners/defendants produced as examined Abdul Sattar as DW-l, who deposed that the suit property belongs to them from their forefathers and they have constructed their houses therein, where they reside during season During his cross examination, he though admitted that Malik Jan had filed a suit in respect of the suit property, but claimed himself to be oblivion of the fate of said suit. However, in support of assertion of the written statement that the matter in issue stands decided through early litigation in the year 1985, he failed to bring on record any documentary proof.

6.Careful perusal of the evidence produced by the parties reveals that the plaintiffs/respondents sufficiently proved their stance through earlier decisions in the shape of Ex PW-llz to Ex PW-1/6, oil whereas the defendants/petitioners just relied upon their oral assertions and failed to produce any cogent and confidence inspiring documentary evidence, which could lend support to their oral assertions.

7.Coming to the legal status of the

respondents before the august Supreme Court of Pakistan, i.e. Sahib Jan etc. (defendants in the original suit), since they have failed to justifu their possession

over the suit property through any cogent and confidence inspiring evidence, while the plaintiffs have sufficiently proved that the suit property belongs to the residents of Sazeen, as such the defendants were carrying the status of trespassers and their possession was rightly held to be unlawful by the learned appellate Court.

8.So far as the question of maintainability of the suit as well as the real matter in controversy, both factual and legal, between the parties, IS concemed, the dispute pertains to land commonly known as "Shorri Nala", situated within the revenue limits of village Sazeen, Kohistan. The respondents/plaintiffs, namely Malik Ichha and others, instituted a suit seeking possession and perpetual injunction, asserting that the suit land was jointly d$ owned and possessed by the residents of Sazeen village since ancestral tinres. It was contended that the petitioners/defendants had illegally and forcibly occupied the suit property without any lawful entitlement, thereby dispossessing the rightful occupants.

9.It was categorically asserted in the plaint that although the plaintiffs were not exclusive owners, their

possession was joint in nature, and being residents of Sazeen vil]age, they represented the broader community interest. However, the suit was not framed as a representative suit under Order I Rule 8 of the CPC. Instead, the claim was grounded in the plaintiffs' status as co-possessors of the joint property who were unlawfully dispossessed. PW-1 admitted in his evidence that the plaintiffs were authorized to file the suit by the co-owners through decision of a jirga and their such stance could not be rebutted during evidence. Learned counsel for the petitioner, while relying on the judgment rendered by the august Supreme Court of Pakistan in the case of "Muhammad Aslam Vs. Mst. Ferozi and others" (PLD 2001 SC 213), contended that a suit for possession without c seeking the relief of declaration, would not be maintainable. Such contention of the learned counsel would not be relevant in the instant case because the facts and circumstances of the present case are different from the one, relied upon by the learned counsel for the petitioner. In the case of "Taj Wali Shah Vs. Bakhti Zaman" reported as 2019 SCMR 84, the maintainability of suit under Section 8 of the Specific Relief Act, was thoroughly discussed and decided in the following terms;

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possession cannot be deemed os adverse to the other co-sharers."

10.In view of the para-meters set forth in the above reproduced judgment of the honourable Supreme Court of Pakistan, the suit filed by the plaintiffs was pertaining to perpetual injunction and possession under Section 8 of the Specific Relief Act, 1877. The plaintiffs could legally seek possession of immovable property because such right is not restricted to the owners but to all who are entitled to possession under the law. Seeking declaration in the peculiar circumstances of the case, was not necessary for the plaintiffs. They have succeeded to show a beffer title of the property by producing Ex PW-llz to Ex PW- ll6, therefore, though the defendants being 1n possession of the suit property had a vested right, but d0 the claim of the plaintiffs were not barred under the law and finally the suit brought by the plaintiffs would be deemed to be for the benefit of all the co-sharers and their possession would be considered on behalf of all the co-sharers.

11 The learned appellate Court has rightly appreciated the material available on record and rectified the errors committed by the learned trial

Court, to which no exception could be taken b1r fl1it Court in its revisional jurisdiction

12.In view of the above discttssion, the instant revision petition is dismissed.

Announced

z). 05.2025 Tulhil.

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