Ali Sher and others Vs Munir and others

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.5117-P/2023 with CM No.2732-P/2025 Ali Sher and others Vs Munir and others Date of hearing: 12.10.2026

Petitioner (by): Mr. Khalil Nasir, Advocate (through video link)

Respondents (by): M/S Daulat Khan, AAG, as well as Iftikhar Ahmad Mayar, Advocate (through video link)

JUDGMENT

SYED ARSHAD ALI, J.— Ali Sher and two others, the petitioners, through the instant constitutional petition, challenge the orders passed by both the courts below, whereby their suit for possession of the disputed property was dismissed by the learned trial court and the plaint was subsequently rejected by the learned revisional court, vide order/judgment 03.02.2023 and 16.09.2023.

2.The facts of the case are that on 20.01.2021, the petitioners, along with their brother, instituted a civil suit for recovery of possession of a property measuring 1 kanal and 14 marlas, comprising houses, shops and an open plot. They also sought recovery of rent from the defendants. As averred in the plaint, the petitioners claimed ownership of the suit property on the basis of the revenue record and alleged that the respondents/defendants were occupying the same as trespassers. A sketch of the disputed property was also

appended to the plaint, depicting shops, houses and two open plots situated between the houses of the defendants, namely Zarshaid and Wasal.

3.The respondents contested the suit by filing a written statement on various legal and factual grounds. Their principal contention was that they had purchased the disputed property through unregistered deeds and had constructed houses and shops thereon since long. They, therefore, maintained that the petitioners had no lawful claim against them. In support of their contention, the respondents produced an unregistered deed dated 03.08.1979, whereby they claimed to have purchased land measuring 2 kanals and 121⁄2 marlas from Mst. Rekhmina, widow of Nafal Din and daughter of Rehman Baig. They also relied upon another unregistered deed dated 22.03.1989, relating to the purchase of land measuring 3 kanals and 1 marla from Roshan Zari. Furthermore, they produced revenue record showing Mst. Rekhmina and others as joint owners of the property in question.

4.The learned trial court, while accepting the respondents’ application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (“CPC”), dismissed the suit vide order dated 03.02.2023. The petitioners challenged the said order before the learned revisional court, which, vide judgment dated 16.09.2023, maintained the decision of the trial court, with the modification that the dismissal of the suit was converted into rejection of the plaint.

5.Learned counsel for the petitioners contends that the suit could not have been summarily dismissed, as their claim was founded upon the revenue record, wherein they were recorded as joint owners of the property to the extent of 1 kanal and 14 marlas. He further submits that the respondents are also recorded in the revenue record as owners of the disputed property; therefore, the question of entitlement to possession could not have been decided without a proper adjudication of the parties’ respective claims.

6.The suit giving rise to this petition was instituted on 20.01.2021 by the petitioners, along with their brother, for recovery of possession of property measuring 1 kanal and 14 marlas, comprising houses, shops and an open plot, together with rent. The learned trial court rejected the plaint under Order VII, Rule 11, CPC, on 03.02.2023, and the learned revisional court, on 16.09.2023, maintained that decision, converting the dismissal of the suit into rejection of the plaint. At the outset, the scope of Order VII, Rule 11, CPC must be kept in view. For clauses (a) and (d), only the averments in the plaint and the documents annexed to it are to be examined, and these are presumed to be correct. The pleas of the defendant in the written statement, and the documents produced by him, are irrelevant at this stage. Reference may be made to Jewan v. Federation of Pakistan (1994 SCMR 826); Mrs. Anees Haider v. S. Amir Haider (2008 SCMR 236); & Haji Allah Bukhsh v. Abdul Rehman (1995 SCMR 459). At the same time, the object of the rule is that an incompetent suit be buried at its inception, sparing the

parties needless litigation. Reference is made to S.M. Sham Ahmed Zaidi v. Malik Hasan Ali Khan (2002 SCMR 338) & Pakistan Agricultural Storage and Services Corporation v. Mian Abdul Lateef (PLD 2008 SC 371). This Court has therefore confined itself to the plaint, the revenue record on which the petitioners rely, and the submission of their learned counsel. The respondents’ pleas, namely possession since 1972 and the unregistered deeds dated 03.08.1979 (2 kanals 12 marlas, from Mst. Rekhmina, widow of Nafal Din and daughter of Rehman Baig) and 22.03.1989 (3 kanals 1 marla, from Roshan Zari), are noted only to complete the record. They are not relied upon, and nothing herein is a finding on them.

7.The plaint rests the petitioners’ title solely on the revenue record, which shows them as joint owners to the extent of 1 kanal and 14 marlas. That share is a small fraction, a little over three per cent, of a joint holding of approximately 49 kanals, spread over four khatajat bearing Nos. 238, 243, 265 and 283. The plaint does not assert that the houses, shops and open plots occupied by the respondents fall within the petitioners’ share, nor that the petitioners were ever in possession of them. The sketch appended to the plaint depicts shops, houses and two open plots situated between the houses of the defendants, namely Zarshaid and Wasal, but does not locate the petitioners’ 1 kanal and 14 marlas anywhere within the four khatajat. The respondents are described as trespassers, yet rent is also claimed from them, and the learned counsel for the petitioners himself concedes that

the respondents are also recorded as owners in the revenue record of the same holding.

8.Section 8 of the Specific Relief Act, 1877 provides that a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure. Three things follow from its text. First, the plaintiff must be “entitled”, that is, he must have a subsisting legal right to possession, ordinarily founded on title or should fall within the expanded scope of the persons who may seek the possession such owner, lessor, lessee, mortgagee or mortgagee of immovable property, trustee of beneficiary of a trust as laid down by the Hon’ble Supreme Court in Taj Wali Shah v. Bakhti Zaman (2019 SCMR 84). Second, the property must be “specific”, so the right claimed must attach to the identified property and not merely to an undivided interest in a larger holding. Third, the remedy is an ordinary suit, as distinct from section 9, which affords a summary remedy to a person dispossessed within six months. It is true that in a suit under section 8 the declaration of entitlement is an inbuilt relief as laid down in Hazratullah v. Rahim Gul (PLD 2014 SC 380), so a separate declaratory prayer is not required. But an inbuilt relief presupposes a pleaded and provable entitlement to the specific property claimed. It cannot supply an entitlement that the plaint does not disclose. Here, the petitioners’ entitlement, as pleaded, is to 1 kanal and 14 marlas somewhere within about 49 kanals of joint holding, whereas the property claimed is a specific cluster

of houses, shops and an open plot. The plaint does not connect the one to the other.

9.The nature of a co-owner’s right in a joint khata is well settled. Until partition, each co-sharer has an interest in every part of the joint holding, but exclusive title to no particular part. A vendee of a co-sharer stands in the shoes of his vendor, no more and no less, and may retain possession of what was delivered to him only until partition by metes and bounds. Reference may be made to Muhammad Muzafar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak) 9). Similarly, a vendee of a share in a joint khata becomes a joint owner along with the other khatedars and cannot claim specific khasra numbers. Reliance is placed on Muhammad Ibrahim v. Muhammad Ismail (2005 SCMR 1335). It follows that the entry of the petitioners’ share of 1 kanal and 14 marlas in the joint khata, by itself, confers no entitlement to possession of the particular houses, shops and open plots occupied by the respondents. Equally, on the petitioners’ own case the respondents are recorded owners in the same record, so the petitioners cannot treat them as persons with no interest in the holding.

10.The Supreme Court has specifically addressed the remedies of a co-sharer against other co- sharers. In Mst. Resham Bibi v. Lal Din (1999 SCMR 2325), it was held that a co-sharer dispossessed by another has two remedies, namely a suit under section 9 of the Specific Relief Act or a suit for partition. A third remedy, an ordinary suit for exclusive possession without claiming

better title than that vesting in the defendants, would place one set of co-sharers in a more advantageous position than the other, for which there is no warrant in law or equity. The rule was followed in Contractor Haji Muhammad Alam v. Shaukat Sultan (2009 SCMR 688). In the present case, the petitioners claim a share of 1 kanal and 14 marlas in the joint holding of about 49 kanals in khatajat Nos. 238, 243, 265 and 283, and do not claim title to the specific property better than that of the respondents, who are themselves recorded owners in that holding. No case under section 9 is pleaded either, as the plaint alleges no dispossession.

11.The position might have been different had the respondents been strangers to the joint holding, or had the plaint asserted exclusive title or settled possession of the specific portion. The plaint pleads neither, and the bare label of “trespasser” cannot override the petitioners’' own revenue record. Taking the averments of the plaint as true, no entitlement to possession of the specific property is disclosed, and no decree for possession could be passed on the plaint as framed. This does not leave the petitioners without a remedy. Partition may be claimed at any time during joint ownership, without limitation, so long as the right of a joint owner is not denied. Where it is denied, as it is here by the respondents, a joint owner may seek a declaration of his share together with partition and consequential relief as enunciated in Muhammad Rafiq v. Sardar and others (2004 SCMR 1036). It is for that forum to determine and demarcate the petitioners’ 1 kanal and 14 marlas within the joint holding, and to consider the

respondents’ defence, including their claimed purchases of 2 kanals 12 marlas and 3 kanals 1 marla and their plea of possession since 1972. This Court expresses no opinion on the validity or effect of those deeds. Equally, rejection of a plaint also does not preclude presentation of a fresh plaint on the same cause of action.

12.In view of the foregoing, the learned revisional court committed no illegality in maintaining the rejection of the plaint while leaving the petitioners at liberty to avail themselves of the appropriate remedy before the competent forum. The impugned judgment, therefore, calls for no interference by this Court in its constitutional jurisdiction.

13.Resultantly, the instant petition is dismissed.

JUDGE

Date of hearing and announcement of judgment ............ 12.10.2026

Date of preparation and signing of Judgment ............... 20.10.2026

(S.B) Hon’ble Mr. Justice Syed Arshad Ali Mahmood Shah, PS