Mst. Akhtar Bibi vs Abdul Rasheed

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.217-A of 2008

JUDGMENT

Date of hearing.....................01/01/2015............................... Petitioner...(Mst. Akhtar Bibi) by Mr. Sultan Ahmad Jamshed, Advocate........................................

Respondent...(Abdul Rasheed) by Mr. Ali Zaman Tareen, Advocate.....................................

ABDUL LATIF KHAN, J:- This revision

petition is directed against the judgment and decree dated 23.07.2008 passed by the Additional District Judge-V, Mansehra, whereby, the appeal filed by the present petitioner against the judgment and decree dated 31.10.2007 of Civil Judge-V, Mansehra was dismissed.

2.The perusal of the record reveals that petitioner / plaintiff filed a suit against the respondent in respect of property mentioned

in the heading of plaint with the prayer to restrain the defendant from dispossessing her and raising construction and interference in the property alongwith possession in the alternative, if the petitioner was dispossessed during the pendency of the suit. The suit was contested by the respondent and was concurrently dismissed by the trial Court as well as the Court of appeal.

3.In the previous round of litigation, the suit filed by the present defendant Abdur Rashid against Badri Zaman, Nazir Muhammad and Khawas for specific performance of agreements dated 24.12.92 and 02.01.1994 in respect of disputed property was concurrently dismissed by the trial Court as well as the Court of appeal.

During pendency of appeal, Khawas Khan died, who had two wives, namely, Akhtar Bibi, the present petitioner and Habib-un- Nisa. The L.Rs of Khawas Khan except the present petitioner patched up the matter at

appeal stage in the earlier round with Abdur Rashid, the present respondent. However, the present petitioner was not a party to that consent rather agitated her claim through instant suit for perpetual injunction.

4.The scanning of evidence available on file shows that the petitioner/plaintiff produced evidence to the effect that her husband / predecessor-in-interest remained in possession of the property and after his death, she was in possession of the property and the respondent / defendant was bent upon to dispossess her from the suit property. Her main stress regarding dispossession from the property is evident from the evidence produced by the defendant/ respondent, wherein, defendant’s witnesses expressly or impliedly admitted the possession of the petitioner over the suit property. However, the said evidence has not been properly evaluated by the Courts below. The claim of the respondent to the

effect that the petitioner was an owner to the extent of 171⁄2 ‘Marlas’, out of which she has sold the property through attestation of mutation and has left with the ownership of 41⁄2 ‘Marlas’ out of joint property and has no right to restrain the defendant from raising construction without legal partition, which is misplaced. The defendant has no right to raise construction without legal partition, as the co-owners have the right in each and every inch of the property jointly owned by them irrespective of the quantum of their entitlement for possession over the property.

The learned Court of appeal has passed the judgment in disregard of Order XLI Rule 31 CPC in a manner alien to law. The appeal being continuation of original suit, the appellate Court has ample powers to thrash out and evaluate the entire evidence in view of the contentions of the respective parties.

The legislature has entrusted an important duty upon the Court of appeal to

decide the case finally being the last Court of facts and resolve all questions necessary for the disposal of ‘lis’ and should not easily agree with the findings of the trial Court simply because to avoid taking much trouble in the matter. In the instant matter, the appellate Court has failed to perform its duty in line with the law and has chosen easy path of least resistance instead of applying its independent mind in the light of the provisions of Order XLI Rules 31 and 32 CPC.

5.Admittedly, the proper course for the joint owner is to approach the revenue hierarchy for partition of a particular share, however, the Civil Court has ample power to redress the grievances of the owner in possession of the property seeking relief to restrain the other owner of his/her dispossession from the joint property till the legal partition by metes and bounds from the proper forum. The Courts below were under obligation to consider the case of the

petitioner with respect to her dispossession from the property and to this effect the evidence available on file has to be considered and evaluated strictly in accordance with law.

6.The Courts below have not decided the ‘lis’ pending before them with conscious and independent application of mind and, as such, the impugned judgments and orders are not sustainable. Mere concurrent findings of the Courts below, as a result of misreading and non-reading, are open to interference due to improper application of law and would not be considered sacrosanct and in case of perversity and non-exercise of jurisdiction vested in the Courts below, the revisional Court under Section 115 CPC has ample power to reverse the findings.

Reliance in this regard is placed on Muhammad Akhtar V. Mst. Manna (2001 SCMR 1700), Ghulam Muhammad v.

Ghulam Ali (2004 SCMR 1001), Abdul

Mateen Vs. Mustakhia (2006 SCMR 50) and Muhammad Khaqan Vs. Trustees of the Port of Karachi (2008 SCMR 428).

7.Accordingly, for the reasons stated hereinabove, this revision petition is accepted, the judgments and decrees of both the Courts below are set aside and the case is remanded back to the learned trial Court for decision afresh strictly in accordance with law positively within two months, treating the case as urgent and to be dealt with on day today basis.

No order as to costs.

Announced Dt.01.01.2015

JUDGE

*/M.S.Awan/*