Faizullah ect VS Barkatullah

t/ i

EBronu'I'mn lPnl$l*trwAn llltl cm Cou p.r' IM[I:vooxrl tsrrNCH

J

( ttlamu;., Qtaza) Si,qu'r+,'l'

-1ru I ,\2, *rw

\Vrit )Fetition i\o. ,"{7 -It/n o[ 2O15 {d P.

i)lF;aizullah fi,/o ,{rnir Said (La.'te} .rJ i 2)) lt,rahirn

3)Qasiira. sons of lliaizrrllah { ltesidents of, Ea;:awal Elandai, Il.ehsil Barawal, Distriet Dir {Jpper.

{1."e titiorre rs )

.IERSUS

1.F:atrriltullah Jan S/o l-a.laarxl Jan R.es,idemt of Kharkarrai, Bara.traI,

2.[rxrarn Elussain fi/o Elus:rein IVIalak Resident of L{trear:ao :$arawal,

3.E,ah.aslar Said "<;/o Zeeta.t Kharr R.esictent of Elarrawal Shahi h.ot, 'I'ehs;fl Earaw:ll, Distr.ict -Dir n-Ipper.

zl-.Civii Ju,ige X / -tl aqa ,Qazii, .ri)ir [Jpper. li. rLc1<iltiorrai Districr .-!'.iclge, lt{ / trzafi Zilla Qazi Dir Up,p(]!.

{lite s p,om cleni ts }

'$i; t'r( ti'r( ll,liil'lillT'llo iii ru$1n)ililiil. A.litTnCL,IJ n II :ti?'

1;rq ;;i.;;-1' u'r-i'ii) (i.!itr TlijtiD coI,:slTli'r'lu1'l|c,l$ olF xsi,^anIIC 1.5 D Lti\7-01i tU,ttr lij:l :i'J'ril':;l'l'iil l8.ElPlulBn,nc .Sni' tr?:rliilslll\Fl, I973., ,!!.,n:)trl.Ji

agall"lst the .jucigurertlt rirsrdl decree ctrat.ed

,F

I

JUD(IMENT SIIEET

IN THE PESItrAWAR HIGH COURT,

MINGORA BEN(:H (DAR-UL-Q AZA),SWAT

(Judicial Department)

W.P.l{o.749-1[.I of 2016.

I,AD T

Date of hearlns:- .18.12.2017

Petitioners:-(Fainillah & 2 otehril bv Mr. /., Abdul vwt Atlvocate.

hs ndents:- ullah Jan & othcrs. b l Muhammad, Khan Sabi and Fa

.\ I

ah A MOHAI\IMAD IBR.TTHIM KHAN. J.- By iniploring the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Faizullah & 2 others the Petitioners herein, are Iooking forwanl for settirrg aside the judgments and decrees of the leamed lower Courts dated 31.03.2016 passerl by the learned Civil Judge- l/Illaqa Qazi Dir, Respondent No. 4 and i judgment dated 17.11,2016 rendered by the learnect Addition,rl District ludge-Llllzafr Zlla lu {' Qazi Dir Upper, [l.esPondent No. 5.

2.By the verdicts contained in the impugned judgments the suit under section 9 of ATTFqY -t(sr.) rl. 'L M. l.n .

[,x;'lt F',"st, - iia r: ch i,.rtr! :r Y. at,

dl

I

the Specific Relietl Act, 1877 instituted by the Plaintiff Bakhtullah Jan (ttre Respondent No. I herein) for restorartion of the possession of a house alongwith four shops owned and posseSsr:d by him on account of the sale agreement dated 16.02.2013 was decreed in his favour tb the extent ofhouse only.

3.This claim was resisted on behalf of the Delendant No. I (hereinafter catled the Petitioner No. l) Itaizullah raising various legal and factual objections. Whereas Defendants No.

4 & 5 '(herein the Respondents 2 & 3) have submitted cognovit, thereby confirming the sale on their behalf in favour of the Plaintiff (herein the Respondent No. l). The learned Trial Court on the basis of the pleadings of the parties reduced the cont:oversy in between them by framin1; the follovring issues::

"r)

' :*P

OPPr+rlvUl 'z-u{6 ,{ tl oPDr 7i,Jr 'adu!

oPDtaG;vxl+$ 64r,{:3 <5,qf f v.,tzooalvlt P d$ Ll / *v,{ A 5GT' #-vU z-u t- l:1,.: I ch OPDI *{ e )24.0'l .20 | 4,,/ t

p".,i.a rr.

xn.r (i}) I.. u.Mi,i!lh.it.hr..ra 1

E:-

31 , A jP.ot$ 'trbllibo$ e5ttt4f -t,1rrLgt{:5 .7,{ Ltoat.t,\! tg tJt,,f4.; t 6.g2.2013ty' ig t-4 tt t oPPr(tL';+;{t)bc- tylTi5t'$ ;v{t-qb Lg, 4d- t,} $v,uu,,L aS{ :6 /'z- a L.[t /,P(Lq-r lc| ;ob c- a,$j 4,i Lg rr{ :7 a { eu L+l / f st t t 1t -( 4!v sb J20t 56 t ) e-20 4 v.o t

I

Opptr!;] r, ra $ 1s /t ) r U Lt t.F rrJr*Ullt+iLUnder Play 5,4/ lv,nt6 ,{ :8 OPDfldlli Oppt +.,1 D ( I p 6,1 i6,Vr :9 _sf ,h il0

4 The parties led their evidence accordingly. The Plaintiff (herein the Respondent No. l) examined PW-l Gul Zameen Record K.eeper, Ubaid Shehzad PW-2, Luqman Alam PW-3, Assam-ud-Din PW-4, Imam Hussain PW-5, Khaleeq-ur-Rehman PW- 6, Muhammad Zada Petition Writer PW-7, the Plaintiff now the Respondent No. I Bakhtullah Jan PW-8, Gha*ar Khan PW-9 and Bakht ,/- Rahman PW-10. lnversely, the Defendant No. I f herein the Petitioner No. I Faizullah examined Gul Zamin as DW-I, Hameedullah as DW-2 and Haji Faizullah himself appeared in the ATTF=T witness-box as DW-3.

r a:,1ttch Pe-.h:.,' ii','.r aL lillr'.1.;,:r I,l.rO G.rJ f,-'rl rk ll.t M.lr.a

4 t

5 By the judgment contained in Civil Suit No, l3ll of the year 2015, the learned Civil Court u:as pteased to gl'ant a decree partially to the extent of suit house, whereas in respect of restoration of the shops his clailn was dismissr:d.

6.The nratter was further taken up before lhe Court <)f leamed Additional District Judge-ll/lzafi ZilLa Qazi Dir Upper in Civil Revision No.08/12 of 2016 for all the reasons herein ihe conclusion was drawn holding the order dated 3l .03.2016 needs no interference by the sanre learned Revisional Court, hence the revisiou petition u'as dismissed onl7.l 1.2016.

7.Having heard arguments of the

leamed counsel fc,r the parties, record with their valuable assistance gone through.

f tA- 8. Indee,l, this is a matter for restoring possession of the suit house alongwith four shops being partially decreed in the previous suit under sectiolt 9 of the Specific Relief Act' AT?rt'r 1877, which reads as under:-

E;,:,'

Pesh::,','r: r ' r, t: ch

[! 1;rr ';. r :1.,'aL

Suit by person dispossessed.of inmovable property, if any person is dispossessqd without his consent 'of immovoble property otherwise than in due course of law, 14 ar any persbn claiming through him may by suil iecover possession ,thireoj notwittutandin! ony olh", title that may be set up in such suit.

' Nothin! in this section slull bar any person from suing to establish hlt title to such property and to recov.er possession thereof. ' No suit under this section shall ,be brought against [the Central Government, or any Provirtcial Governmen!1.

, No appeal shall lie from any order or decree in . otty snit instituted unde4 this section, nor shall any reriew of any such order or decree bo allowetl.

Sectior 9 of the Act ibid consists of four ingredients:- Firstly, the person suing must have been di:lpossessed. Secondly, such dispossession mut',t be of immovable property' Thiidly, the dispcssession should be without plaintift's consenl:. Fourthly, the dispossession

I

should be otherwil;e than in due course of law' g' ' lt is 'mperative to succeed in the $l suit under Sectiorr 9 of the Act ibid when the

of Plaintill is to prore that he was in Possession the srrit ProPerY an(I that he has been A"Es than in dispossressed by the Defendant otherwise l-r\ Pcsh;t.,,;,r ,:rian llir:r r,,: i ffi;tsExi=

due course of law. This dispossession has taken place within six months of filing of the suit. The Court is not to appreciate the question of title which has been raised or looked into in a case filed under sectiorr 9 of the Act ibid. Therefore, when the record particularly the prayer as set in the plaint followed by statements of all the Plaintiff (herein ltespondent No' 1) witnesses were scanned with great care and caution, it was t observed that the most important ingredient of the section 9 of the Specific Relief Act to prove previous possession ofthe suit house is lacking when altogether the statements of all the Plaintilf @esponclent No' l) witnesses are also

probably silent to this effer;t' Its looks like that provisions the plaint has been drafted under the as there is of section 8 of the' Specific Relief Act the Plaintiff nowherp being stated therein that

It^4 qR"rpondent No. 1) had ever been found in f of the deed in possession even on the strength

shrouded in his favour' It is still a matter

mystery that as to when the Plaintiff

*:'-fr (Respondent No' 1) has been dispossessed from

' ,, r' cir 'r r.t.

P

t

his lavrful posser;sion, he never reported his forceful dispossession rather than in due course of law before the offrcials of the police station the house being fallen within its jurisdiction.

Even lhe affrda''rits furnished are also not suggesiir" of thit ever Plaintiff (Respondent No. l) has been ,lispossessed forcibly. This is the pivotal questic,n involved in the present case whether the Respondent No' I has ever been found in possession and thereafter has been disposed from the' suit properfy' It is answered in negative due to dearth of evidence never cared of.

10.Contrrlry to the evidence of the Defendant No. I (herein the Petitioner No' l) in

the verry opening line of the examination-in- in his chief would reveal DW-l Gul Zameen stated that as support DW-2 Hameedulllah have ,a g..^. far as they remelnber the house and the shops

are in continuous possession of Haji Faizullah

the Dr:fendant IIo' I (hereinafter called the

is no cross- Petitioner No' 1)' Whereas there fn??l.: - question examination and even no suggestive I !.:t i- .

Lirr . , (al) U,.

has ber:n put reg,arding the possession being held ori account of dispossessing the plaintiff t (herein the ResponCent No. l).

ll. I It is, lhereforq held that lhe leamed trial Court as'well as the learned Revisional Court have en'e<l in law trr decree the suit as the Plaintiff (herqin the Respordent No. l) has failed to bring the case within th: four corners set as guide by the legislature unler section 9 of the Specific Relief ,{ct. Theretbre, the leamed trial bourt as well as the leamed Revisional Court have commilted matr:rial irregularity, thereby the perspective prayer as set out in this writ petition and on its acct:ptance the findings in the impugr;ed judgmcnts and decrees of both the learned Courts arr: set aside. It is however open for the Plaintiff (herein the Respondent No. l) to seek possession rnder section 8 of the Specific t Relief Act if at all he is a declared owner of the suit premises on aecount of purchase in his favour '"' P,' "':f) by the deed dated 16.02.2013 in considdration of L€r-di:'j"'- " ;Oiiy the amount of Rs. 37,50,000/-.

ANNOUNCED o-- u;-.- ,r/fl /// ,dtDt:16.12.2017 JUDGE J]'l

frl(',\'' rt N;.[ llD u. rtL M; lffi"F..-. tb-lL l(r-