Fazal Rehman Vs Rehman Gul

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.59-Pl202l with C.M No.l16-P12023

Fazal Rehman Vs Rehman Gul

JUDGMENT

Date of hearing: 12.03.2024

Petitioner (by): Mr. Arif Mahmood. Advocate Respondent (by): Mr. Jawad Ali Shah. Advocate SYED ALI. J.- Petitioner has filed instant petition to impugn concurrent findings of both the courts below whereby his suit for recovery of possession against Rehman Gul defendanUrespondent was dismissed.

2.Briefly recapped,FazalRehman plaintiff/petitioner filed a suit on 13.04.2018 for recovery of possession of a house measuring 15 marla located in Khasra 218, of Khata No 427. He held in the plaint that suit house was given to the respondent, his real nephew, out of filial affection. However, the respondent, allegedly, began to assert title over the house'

3.The respondents, in their written statement, raised multiple legal and factual objections to the maintainability of the suit and validity of the claim. The learned trial court distilled their differences into the following issues:

t. Whether the plaintiffhas got cause of action? ii. Whether the suit is within time?

iii. Whether the suit proper in its present form?

v iv. l Whether the suit is liable to be dismissed u/s-l of

CPC, I9O8?

v. Whether proper court fees have been affixed? vi. Whether the plaintiff is estopped by his own conduct to sue?

vii. Wether this court has got the jurisdiction to entertain the present suit?

viii. Wether the defendant is entitled to special compensatory cost under section-3 5 -A?

ix. Whether the suit is bad for non-joinder/Mis-joinder ofnecessary parties?

x. Whether the suit is initiated on the basis of mala- Jide?

xi. Wether the plaintiff is entitled to the relief of possession, as prayed for?

xii. Whether the plaintiff is entitled to the relief of recovery, as prayedfor?

xiii. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction, as prayed .for?

xiv. Relief,

4.The Patwari Halqa, Rizwan Ullah, recorded his statement as PW-01, and produced relevant revenue record in respect of the suit property. His record held the suit property located in Khasra no 218 to be in possession one Safdar.Latif Khan, the general attorney and son of the petitioner, took the witness stand as PW-02. His brother, Hazrat Khan testified as PW-03.

5.Rehman Gul, the defendant took the witness stand as DW-01. He testified that the total entitlement of his father in the disputed khasra No. 218 is 2 kanal, out of which the disputed house covers an area of 15 marla. He has alleged that rest of his entitlement is being illegally occupied by the plaintiff. Noor Gul, brother of the defendant testified as DW-02, and endorsed the position la 4 of the defendant. Muhammad Sharif son of Zatif Khan and father in law of the defendant, testified as DW-03, and made the following admissions during his cross- examination:

J

v .rr!t -6,S AJ ^Us$^ Ot5..o .j o.jqs.J di^:i ,.S -.r dr^,r-;r 2..r" .6 At -6 ^J.r. .i Otl L:-l "S -1 d.ur-;.r ^t -) !. J J 3 rtti t;t fl JIJJS "jcu,:'i ,"S 4 r"r..)J 4 -W Yttj /" A ; cF lr,_l -6 ^Jrr" ^r,Jc$. OtS. j .,-er. -f YISj d -6 ,rS o;oa JJo,"'t+ dt J r*-,5 4 t"r."_,;J ^J -l+J ";leu i citiH,-,1 gg kSt dli CJI .,5 ur?+ -5r.J(,S-, i r*u d d.up.r 4 --t qrl5 -6 ;,.J4sJ cJ^.bi JJ3 # .# d# ^S 3 "'..,#t5;V

6.Ajmal Shah recorded his statement as Dw-04 and produced Goshwara Malkiyat of the parties. Amjad Ali deposed as Dw-05 and produced relevant record in respect of power connection to the suit house in the name of the defendant.

7.The learned trial Court, in presence of the evidence paraphrased above, dismissed the suit on27.02.2020, and the learned Appellate Court upheld its findings vide judgment/decree dated 03 .t2.2020.

8.Arguments heard and case record has been perused.

g. I have studied the record closely; Ghulam Muhammad,Raza Khan, Fazal Rehman and Safdat ate brothers, while Mr. Rehman Gul, the defendant, is son of Mr. Raza Khan. The Goshwara Malkiyat available on file as Ex-DW 4/1 held Mr. Raza Khan entitled to land measurin g 02 kanals until he sold it to Mr. Ziarut Khan, son of the plaintiff. Thus, defendant has no land left to assert title upon.

10.The lower courts dismissed the suit and appeal for various reasons. The learned trial Court held that land was purchased by son of the plaintiff, and not by him, 4 and that the suit was hit by statute of limitation. The learned Appellate Court dismissed the appeal on the ground that the plaintiff had omitted to seek declaration

of title, and that the suit was filed by his son, instead of him.

11.With this backdrop, the points to be determined by this Court are:

i. Whether the suit for recovery of possession under Section 8 of the Specific Relief Act, 1877 (nAct"), without seeking declaration of title, was maintainable?

ii. Whether the issue of the suit being filed by someone else instead of the plaintiff was raised and contested before the trial Court?

iii. Whether the suit ts hit by limitation? iv. Relief,

12.In adjudication, the foremost question before a court is the maintainability of the matter pending before it. The leamed Appellate Court dismissed the appeal of the petitioner on the ground that a claim for recovery of possession, without seeking declaration of title, was not maintainable. Before delving into the merits and fitness of the findings of the learned Appellate Court, it seems in order to briefly examine the entitlement of the contesting sides in the revenue record.

13.According to the Goshwara Malkiyat, plaintiff is recorded as owner of 07 kanals 19 Marlas in revenue estate of Mouza Tazagram, Tehsil Katland, District Mardan. He is further entitled to land measuring 01 kanal 4 on purchase from Ghulam Muhammad, and 02 kanals from Ftaza Khan, father of the defendant. The latter purchase removed Raza Khan from the list of owners in the disputed Khata. Neither the defendant, nor his father is recorded as owner of any land in the suit khasra.

14.Now the court will advert to the question of maintainability of a suit under section 8 of the Act without seeking declaration. It is pertinent to reproduce section 8 for ready reference and facility in forming perspective:

"Recovery of Speciftc 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".

15.The section invests a person with right to sue for recovery of possession on the basis of entitlement. The entitlement could be based on 'contract, inheritance, prescription or event possession, and the last will prevail when no better title is shown' I@!-9,9!&. 16, The learned Appellate Court has erred by holding that suit for recovery of possession under section 8 of the Act without seeking declaration is not maintainable. Indeed it is settled law that "in a suit under section 8 of the Specific Relief Act 1877, the declaration of entitlement was an inbuilt relief claimed by plainttff of such a suit. In such circumstances prior declaration of entitlement could not be held as a condition precedentfor suit for possession under section 8". W Vs.. Bakhti Zaman" (2019 SCM.R 84t Similarly, in the case of "Haratullah and others Vs Rahim Gul and alfters" (PLD 2014 SC 380). the Apex Court held that "For a suit filed under sectton 8 of the Specific Relief Act of 1877, the declaration of entitlement was an inbuilt 1 relief claimed by the plaintiff of such a suit. Once the 4 plaintiff was found to be entitled to possession, it meant that he/she had been declared entitled which meant declaration of title of the plaintiff in respect qua the property, and this was integrated into the decree of

possession". Again, in case of i'Salman Ashraf vs. Besum Asmatun-Nisa" (PLJ 1997 Karachi 70. it was held that 'where the plaintiff is vested with some valid title, he is entttled to sue for recovery of possession without seeking declaratton of title'.

17.In view of the above, the law on the point is settled and crystallized. The findings of the learned Appellate Court are clearly erroneous in the matter as admiuedly the plaintiff as per revenue record is owner of the suit property, therefore, he was not legally required to seek a decree for declaration on the basis of his title emerging from the revenue record. Suit for possession under section 8 of the Act was thus maintainable.

18.The next point to be considered, examined, and ruled upon by the court is the allegation that the suit was filed by someone else instead of the plaintiff. The plaint shows that suit was filed by attorney holder Mr. Latif-ur- Rahman. Additionally, there is a thumb impression on the plaint which the attomey has confirmed to be plaintiff s during his cross-examination.

19.It is curious to note that this objection against the validity of the plaint on the ground of being filed by someone else rather than the plaintiff first surfaced during the appellate stage. The objection finds no mention in the written statement and no issue has been framed by the learned trial Court, therefore, the essential question arises that can aparty introduce a new objection at the appellate stage?

20.Order VIII Rule 2, CPC specifically mandates that "the defendant must raise by hts pleadings all matters, whtch show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and

all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise tssues of fact not arising out of the plaint, as for instant fraud, limitation, release, payment, performance, or facts showing illegality". Indeed it is well-settled Maxim that "Secundum Allegata et Probate' A defendant will not be allowed to raise in appeal for the first time, a plea dependent upon evidence for tts determination' Party can only succeed on what ts pled and proved. ("Amir Shah vs. Ziarat t, (1998 SCMR 5931 and "Anwor Ali and others Manz.oor Hussain and another" (1996 SC]N'I.R 17 7 0\.

21.The Apex Court in case of "M Amir Haidar and oth ,, (1986 SCMR 1814) has elaborately answered the issue in the following terms:

"A plea which should have been taken in trial but was not taken, cannot be raised for the first time in the second appeal. In case of new pleas which are in nature of additional pleas, parties are not entitled to relief on facts or grounds not stated or referred to in their pleadings... h is for parties to take up necessary pleas and have issues framed in trial court..."

22.The learned Appellate Court by entertaining a factual objection raised before it for the first time clearly exceeded the scope of the pleadings and evidence adduced during the trial.

23.The next issue awaiting judicial attention is the question of limitation. Limitation was one of the grounds held by the trial court for dismissal of the suit. Plaintiff {t' claims in his plaint that defendant, being nephew of the plaintiff, was allowed to occupy the suit house out kinship and affection. Witness No. 03 for defense has confirmed the assertion in his cross examination by a

straight admission. So, the situation at hand is one of permissive possession, and therefore governed by Article 142 of the statute of limitation which is reproduced as under:

Timefromwhich Description of Period of period begins to suit limitation run

I 2 3

142.For possession of immovable property when the plaintffi while in The date of the possession of the Twelve years dispossession or property, has discontinuance.

been dispossessed or has discontinued the possession.

24.Instantly, the possession of the defendant is not hostile to the plaintiff, nor has he any adverse claim to it. The evidence has established that defendant entered upon suit land with the leave and consent of the plaintiff. The question of dispossession, therefore, does not arise. The second situation governed by the section is where a person discontinues to hotd possession. In order to establish discontinuance of possession as the word occurs in Anicle 142 ibid, it must be shown that the owner had withdrawn with intention of abandoning the property and the gap had been filled in by another person who had come to occupy as a consequence of such withdrawal.

Presently, the defendant, being a nephew of the plaintiff was peaceably allowed to occupy the subject house out of filial affection, and at the will, consent and pleasure of the ptaintiff. Title of the plaintiff over the suit land is

established by revenue record, and the fact that defendant was peaceably allowed to occupy the house at the will and pleasure of the owner/plaintiff, is admitted by DW- 03, a witness for the defendant. Naturally, in the circumstances of the case, the occasion for filing a suit would arise only when the occupant had denied the entitlement of the other side to possession of the property or had declined to hand it over. Unfortunately, both the learned courts below missed to advert themselves to this factual and legal position. Therefore, not only both the impugned judgments and decrees dated 03.12.2020 and 27.02.2020 are legally incorrect but based on misreading of the evidence.

25.In view of the discussion above, instant petition is allowed. Suit of the plaintiff for recovery of possession is decreed as prayed for in the plaint. However, the claim for mesne profits is declined as the possession of the defendant was permissive and there was no arrangement of rent between the parties. ,)

TUDGE

Date of hearing and announcement ofjudgment 12.03.2024

Date of preparation and signing of Judgment ... 04.04.2024

S.B Hon'ble Mr. Justice Syed fushad Ali

Mahmood Shah, SSS