Arshad Mahmood Vs Amna etc

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P. No.18075 of 2022 Arshad Mahmood Versus Mst. Amna and others Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties of counsel, where necessary proceeding Proceeding

14.4.2026 Mr. Mahmood Tahir Ch., Advocate for the petitioner. Respondent No.1 proceeded against ex parte vide Order dated 18.2.2026.

Judgments of courts below whereby suit for possession under section 9 of Specific Relief Act, 1877 (the “Act”) instituted by respondent No.1 against the petitioner was decreed and revision petition thereagainst was dismissed.

2.Mst. Amna widow of Riaz Ahmad filed a suit for possession under section 9 of the Act claiming therein that she was married to Riaz Ahmad on 22.7.1994, her husband agreed to give her agricultural land measuring 8 kanals and house 2 marlas as dower which was duly incorporated in pertinent column of the nikahnama; that Riaz Ahmad and his brother Arshad Mehmood, petitioner herein, by an exchange agreement dated 19.11.2012 had inter se swapped noted land and house No. 107-D comprising khasra No. 5743-782 situated at street No. 5, Bhullay Shah Road, Mauza Amar Sidhu, Lahore, which house was delivered to her by her husband Riaz Ahmad who on 25.11.2012 handed over the possession to her as dower and that in February, 2013 her husband passed away whereafter on 20.4.2013 she was forcibly and illegally dispossessed by the petitioner with his armed accomplices and that on hearing hue and cry of respondent No.1 Rab Nawaz son of Muhammad Aslam and Khurshid Ahmad son of Muhammad Murad came at the site and witnessed the occurrence and that she filed an application at the concerned police station on the same date which was pending while in the suit she claimed for restoration of

possession of which she was stated to be illegally dispossessed.

3.Suit was contested by the defendant No.2/petitioner, issues were framed, evidence recorded and thereafter the suit was decreed by learned Civil Judge vide judgment and decree dated 13.4.2017. The petitioner challenged the said judgment and decree in appeal which was allowed to be converted into revision petition vide order dated 13.11.2021 which, after hearing both sides, was dismissed by learned Addl. District Judge, Lahore vide judgment dated 18.11.2021. In this constitutional petition petitioner seeks annulment of both the judgments of courts below.

4.Heard.

5.As observed supra a suit for possession was filed by respondent No.1 against the petitioner for restoration of possession under section 9 of the Act claiming that she was in possession of the property and was illegally dispossessed therefrom. Petitioner denied the plea raised by respondent No.1 in the suit. In evidence it was proved that the respondent No.1 was in possession of the property and was illegally dispossessed from the suit property. Main thrust of argument of learned counsel was that the property did not belong to the husband of respondent No. 1 nor could she prove title thereof as also the exchange. This aspect was examined by the courts below and it was concurrently held that the suit was filed on the plea of illegal dispossession seeking the restoration of possession and in such suit the question of title was immaterial either as a basis of claim or in defence. Rather the only question which was needed to be determined was whether the respondent was in possession of the property and, if so, whether she was dispossessed therefrom forcibly and illegally. This was irrespective of the fact as to who was owner of the property. It was in these circumstances that issue

Nos.1 and 2 were framed which were to the effect (i) whether the plaintiff was dispossessed by defendants over the suit property otherwise than in due course of law; and (2) if issue No.1 is proved in affirmative, whether plaintiff/respondent was entitled to the recovery of possession of the property as prayed for.

6.Evidence of petitioner and admissions made in cross- examination were sufficient to establish that respondent No.1 was in possession of said property and was illegally dispossessed therefrom. It was noted by the courts below that the petitioner as DW-1 had admitted that he had no concern with house No.107-D, street No.1, measuring 02 marlas comprising of khasra No.5743-782 at Bhullay Shah Road, Mauza Amar Sidhu, Lahore. He also admitted that in the house in which his brother Muhammad Riaz who had died when he was living was No.107-D, street No.5, Bhullay Shah Road, Mauza Amar Sidhu, Lahore and that the house was in possession of his brother Muhammad Riaz and that he had no concern with the same. In this context witnesses produced by respondent No.1 as PWs had also proved the dispossession.

7.In such situation the courts below rightly concluded on admission by the petitioner about possession of house in dispute, by his brother which was occupied by respondent No.1 as widow, of which she was dispossessed; and recorded findings for restoration of possession. No misreading or non- reading of evidence could be pointed out in the course of hearing of this petition. Faced with this situation learned counsel for the petitioner submits that petitioner would be entitled to file a suit for possession on the basis of title while the impugned judgments would be likely to interfere in its adjudication, therefore, an observation be made that the impugned orders shall have no effect in determination of question of title if raised by the petitioner in the independent

suit. The apprehension shown by learned counsel in regard to maintainability of the suit for possession through title is not well-founded. Section 9 of the Act clearly contemplates that if a person is dispossessed without their consent from an immovable property otherwise than in due course of law by any person, they could file a suit for restoration of possession notwithstanding any other title that may be set up in such suit. It also provides that nothing in said section shall bar any person from suing to establish title in such property for recovery of possession thereof. It is manifest from the provision of section 9 supra that the claim of possession in the suit said provision is only on the plea of illegal dispossession by any other person who may have title therein otherwise. It is in this view of the matter the revisional court specifically observed that respondent No.1 had to prove possession of property and her illegal dispossession therefrom irrespective of the title of the property, which she successfully proved through cogent evidence. Apprehension of the petitioner is misconceived in view of rule in Late Mst. Majeedan through legal heirs and another. vs. Late Muhammad Naseem through legal heirs and another (2001 SCMR 345).

8.Be that as it may, it is clarified that the impugned judgments will not be a bar in maintainability of suit for possession on the plea of title.

9.Dismissed.

(RASAAL HASAN SYED)

JUDGE

APPROVED FOR REPORTING

JUDGE

*Rabbani*