(a) Specific Relief Act (I of 1877)---
----Ss. 8 & 9---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer had been dispossessed from the property in his occupation by another co-sharer-- Leave to appeal was granted to examine the correctness of the view of High Court on question of law that relief under S.8 of the Specific Relief Act, 1877, was not available to the co-sharer and the only two reliefs which a co-sharer could seek, were a partition of the joint property or a suit for possession under S.9, Specific Relief Act. 1877.
(b) Specific Relief Act (I of 1877)---
----Ss. 8 & 9---Co-sharer dispossessed from joint property in his possession bi, another co-sharer---Remedy---Only remedy for such co-sharer who had been dispossessed from the property in his possession by another co-sharer to regain his possession was either by way of a suit underS.9, Specific Relief Act. 1877 or by way of a suit for partition.
Muhammad Shafi and 2 others v. Munshi and 3 others 1979 CLC 230 approved.
Ch. Muhammad Anwar Khan, Advocate Supreme Court for Appellants.
S. Abul Aasim Jafri, Advocate-on-Record for Respondents.
Date of hearing: 18th May, 1999.
RESHAM BIBI VS LAL DIN
1999 SCMR 2325[Supreme Court of Pakistan]Present: Saiduzzaman Siddiqui, Sh: Ijaz Nisar and Kamal Mansur Alam, JJMst. RESHAM BIBI and others---AppellantsversusLAL DIN and others---RespondentsCivil Appeal No. 88 of 1994, decided on 25/05/1999.(On appeal from the judgment of the Lahore High Court, Lahore, dated 23-8-1992 in C. R. No. 1511-D of 1990).
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.---The appellants and respondents are admittedly owners of Abadi Deh as well as Shamlat Deh. The appellants claim to be in exclusive possession of 1 Kanal of land comprising Khasra No.935 since before the year 1966. The appellants were allegedly dispossessed from the land in their possession (Khasra No.935) on 8-4-197-1, Therefore, they instituted a civil suit on 19-3-1978 for possession against the respondents. It may be mentioned here that earlier to the filing of the suit for possession, the appellants had filed a suit far perpetual. Injunction against the respondents but it is claimed that during pendency of that suit the respondents dispossessed them from Khasra No.935 which led to the withdrawal of the suit for permanent injunction and tiling of the suit for possession. The later instituted suit by the appellants was decreed do 16-10-1980. However, on appeal filed by the respondents, the suit was remanded with the direction to the trial Court to appoint a local Commissioner to determine the identity of the disputed land. The trial Court after remand of the case by the 1st Appellate Court, appointed a local commissioner and in the light of the report of the local commissioner once again decreed the suit on 3-3-1987. The appeal filed by the respondents against the judgment and decree of the trial Court failed whereupon Civil Revision Application No.1511-D of 1990 was filed before Lahore High Court which succeeded as follows:----
" 13. Before me, learned counsel for the parties agreed that the land in dispute was part of Abadi Deh and that the plaintiffs' claim was founded upon their being co-owners in Abadi Deh and Shamlat Deh. As observed above, admittedly, the defendants were also co-owners in Abadi Deh and Shamlat Deh and learned counsel for the plaintiffs did not dispute that fact. Learned counsel for the defendants, petitioners herein, contended on the authority of Muhammad' Shafi and 2 others v. Munshi and 3 others (1979 CLC 230 (D.B.), that in the facts of the case, the remedy of the plaintiffs lay either in a suit for possession under section 9 of the Specific Relief Act or in a suit for partition. In the precedent case also, the dispute related to a site in the Abadi Deh and the plaintiffs' alleged dispossession had, as in this case, taken place more than six months before the institution of the suit. The law enunciated in that case that though a co-sharer, who has been in exclusive possession of the certain portion of the joint property for a long period, cannot be dispossessed, therefrom, by another co-sharer except by bringing a suit for partition of the joint property, yet when a co-sharer has been dispossessed, he has two remedies open to him namely, suit under section 9 of the Specific Relief Act and proceedings for the partition of the joint property. 'To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity'. The law so enunciated is fully applicable to the facts of this case, Learned counsel for the plaintiffs referred to Sher Ali v. Khaki Jan and 25 others (1988 CLC 1104); in that case, Muhammad Shafi's case was referred to, but all that was said in regard to it was that that had 'proceeded on distinguishable facts'. However, that may be, the facts of this case appear to be in distinguishable from those of Muhammad Shafi v. Munshi.
14. As the law laid down in Muhammad Shah v, Munshi is binding, the revision petition must succeed. In the result, the judgments and decrees of the learned Courts below are set aside and the suit of the plaintiffs, now respondents, is dismissed, but the parties are left to bear their own costs.
Leave was granted in the above appeal to consider the following question of law:--
"Leave to appeal is granted to examine the correctness of the view on a question of law taken in the impugned judgment that for a co-sharer relief under section 8 of the Specific Relief Act is not available. The only two reliefs which he can seek are, a partition of the joint property or a suit for possession under section 9 of the Specific Relief Act."
We have heard the learned counsel for the parties at length. The sole question which requires determination in this case is, whether a co-sharer who has been dispossessed from the property in his occupation by another co-sharer, could regain his lost possession through a suit under section 8 of Specific Relief Act. The learned Single Judge has relied on the case of Muhammad Shafi and 2 others v. Munshi and 3 others (1979 CLC 230) decided by a learned Division Bench of Lahore High Court, in support of his conclusion that the only remedy for a co-sharer who has been dispossessed from the property in his possession by another co-sharer to re-gain his possession is either by way of a suit under section 9 of the Specific Relief Act or by way of a suit for partition.
Following observations were made in the case of Muhammad Shafi and 2 others v. Munshi and 3 others (supra) by the learned Judges of the Division Bench in support of their conclusion that the remedy for a co-sharer, who has been dispossessed from the property in his possession by another co-sharer, is only by way of a suit under section 9 of the Specific Relief Act or suit for partition:--
"15. There is, thus, ample authority for the proposition that if a co sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property.
16. Now, the question which falls for determination is that if the co sharer occupying a specific portion of the joint property as aforesaid is forcibly ejected therefrom by another co-sharer, what legal remedies are available to him. According to the learned Single Judge, who made the order impugned herein, he can regain possession by filing a suit under section 9 of the Specific Relief Act, 1870 but not by means of an ordinary suit. In taking this view, he placed reliance on the case of Joy Gopal Singh and others, in which the High Court of Calcutta observed as follows:--
'If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under section 9, Specific Relief Act, he can only succeed on the strength of his own title. "
17. In the case of Ahmad Mianji and others it was ruled that if any such co sharer is dispossessed from specific land he has got the right to recover possession of the land of which he has been dispossessed. It was, however, not clarified as to whether the dispossessed co-sharers will be able to regain possession by means of a suit other than the one under section 9 of the Specific Relief Act. In the case-of Jalal-ud-Din, a co sharer was in inclusive possession of a specific part of certain land jointly owned by him with some others. He mortgaged, with possession, that specific part of the land in favour of a stranger.Thereupon, another co-sharer forcibly dispossessed the mortgagee. The High Court held that he had no right to eject the mortgagee and his action in so ejecting him was illegal and unauthorized. In that case the High Court also approved of the order of the two Courts below whereby the co-sharer, who had dispossessed the mortgagee, was directed to restore possession of the land in dispute to the mortgagee and also pay damages to him. It is, however, not known as to whether the suit by the dispossessed mortgagee was under section 9 of the Specific Relief Act or an ordinary suit for possession. The cases of Ahmed Mianji and others and Jalal-ud-Din are, therefore, of little help in resolving the precise question before us.
18. In the case of Pannalal Bhagirath Marwadi, however, it was held that a person who enters into peaceful possession of land, claiming it as his own although he might not have any title to the land can sue another person who has forcibly ousted him of possession and who has no better title to the land, and if the former is forcibly dispossessed, a suit under section 9 of the Specific Relief Act is not the only remedy open to him for seeking restoration of the possession and that he can also file en ordinary suit for restoration of possession of the property from which he is ousted.
19. The position, therefore, boils down to this that it is only the case of Joy Gopal Singh and others and Pannalal Bhagirath Marwadi which have bearing on the precise question as to whether a person who is deprived of the possession of an immovable property can regain its exclusive possession by means of a suit other than a suit under section 9 of the Specific Relief Act without showing that he has better title to .the property than a person who has ousted him therefrom. As indicated earlier, conflicting views have been expressed in the said two cases on the aforesaid question, and we are inclined to adopt the view taken in the case of Joy Gopal Singh and others.
20. The main reason for which we would like to follow the dictum in the case of Joy Gopal Singh and others is that it is in consonance with the letter and spirit of sections 8 and 9 of the Specific Relief Act. According to section 8, if a person desires to obtain possession of an immovable property on the basis of his title, he can bring a suit for ejectment in accordance with the relevant provisions of the. Code of Civil Procedure normally, such a suit can be filed within 12 years of the occupation of the immovable property by a person without title. The person seeking relief, under section 8, cannot succeed unless he demonstrates that he has title to the property claimed by him but the defendant had no such title thereto or, if he (defendant) too has any title, the same is not better than his (plaintiff's). As against this, if he seeks restoration of possession under section 9 of the Specific Relief Act, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the filing of the suit. Viewed in the light of this legal position, the appellants before us, who are as good co-sharers of the property in dispute as the respondents, should have filed a suit under section 9 of the Specific Relief Act to regain possession of the property in suit within six months of their dispossession. If they had done so, they would have succeeded notwithstanding the fact that their title was equal but no superior to that of the respondents. They, however, brought an ordinary suit, obviously, under section 8 the Specific Relief Act, which cannot succeed because their title is not better than that of the respondents and as such they are not entitled to retrieve the disputed property from the respondents.
21. The view taken by us is also in accord with the law laid down in the abovecited cases of Muhammad Muzaffar Khan, Muhammad Amin and others, Saeed Ullah, Syed Jamal Shah, Haji Muhammad and others, Jalal-ud-Din, Ahmad Mianji and others and Kutijan Bibi that a co- sharer in possession of a specific portion of a joint property cannot be ousted till the joint property is partitioned. At present, somehow or the other, the respondents are in possession of the property in dispute and, thus, their possession is protected by the aforesaid authorities. As for the consideration regarding possession a 'long period' it would not make any difference because beyond the period of limitation of six months prescribed for a suit under section 9 of the Specific Relief Act there would be no sure test and standard for fixing the period for acquisition of the so-called possessory right.
22. We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity.
23. We, therefore, hold that the appellants could see restoration of their exclusive possession of the site in dispute by filing a suit under section 9 of Specific Relief Act against the respondents by whom they had been ousted, but as they did not bring such a suit, they could not ask for the aforesaid relief by instituting an ordinary suit for possession without claiming better title than the one vesting in the respondents."
We are inclined to agree with the above legal proposition enunciated by the learned Judges of the Division Bench of Lahore High Court in the case of Muhammad Shafi and 2 others v. Munshi and 3 others (supra). In the case before us, the evidence on record does not show that the title of the appellants in respect of the disputed land was superior to that of the respondents. Mere fact that the appellants remained in exclusive possession of the disputed land for a long time would not make any difference, as the admitted position in the case is that both appellants and the respondents were joint owners in the Abadi Deh and Shamlat Deh which included the disputed portion of the land. We, therefore, find no reason to interfere with the judgment of learned Single Judge. The appeal, is accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.
M.B.A./R-47/S Appeal dismissed.
SAIDUZZAMAN SIDDIQUI, J.---The appellants and respondents are admittedly owners of Abadi Deh as well as Shamlat Deh. The appellants claim to be in exclusive possession of 1 Kanal of land comprising Khasra No.935 since before the year 1966. The appellants were allegedly dispossessed from the land in their possession (Khasra No.935) on 8-4-197-1, Therefore, they instituted a civil suit on 19-3-1978 for possession against the respondents. It may be mentioned here that earlier to the filing of the suit for possession, the appellants had filed a suit far perpetual. Injunction against the respondents but it is claimed that during pendency of that suit the respondents dispossessed them from Khasra No.935 which led to the withdrawal of the suit for permanent injunction and tiling of the suit for possession. The later instituted suit by the appellants was decreed do 16-10-1980. However, on appeal filed by the respondents, the suit was remanded with the direction to the trial Court to appoint a local Commissioner to determine the identity of the disputed land. The trial Court after remand of the case by the 1st Appellate Court, appointed a local commissioner and in the light of the report of the local commissioner once again decreed the suit on 3-3-1987. The appeal filed by the respondents against the judgment and decree of the trial Court failed whereupon Civil Revision Application No.1511-D of 1990 was filed before Lahore High Court which succeeded as follows:----
" 13. Before me, learned counsel for the parties agreed that the land in dispute was part of Abadi Deh and that the plaintiffs' claim was founded upon their being co-owners in Abadi Deh and Shamlat Deh. As observed above, admittedly, the defendants were also co-owners in Abadi Deh and Shamlat Deh and learned counsel for the plaintiffs did not dispute that fact. Learned counsel for the defendants, petitioners herein, contended on the authority of Muhammad' Shafi and 2 others v. Munshi and 3 others (1979 CLC 230 (D.B.), that in the facts of the case, the remedy of the plaintiffs lay either in a suit for possession under section 9 of the Specific Relief Act or in a suit for partition. In the precedent case also, the dispute related to a site in the Abadi Deh and the plaintiffs' alleged dispossession had, as in this case, taken place more than six months before the institution of the suit. The law enunciated in that case that though a co-sharer, who has been in exclusive possession of the certain portion of the joint property for a long period, cannot be dispossessed, therefrom, by another co-sharer except by bringing a suit for partition of the joint property, yet when a co-sharer has been dispossessed, he has two remedies open to him namely, suit under section 9 of the Specific Relief Act and proceedings for the partition of the joint property. 'To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity'. The law so enunciated is fully applicable to the facts of this case, Learned counsel for the plaintiffs referred to Sher Ali v. Khaki Jan and 25 others (1988 CLC 1104); in that case, Muhammad Shafi's case was referred to, but all that was said in regard to it was that that had 'proceeded on distinguishable facts'. However, that may be, the facts of this case appear to be in distinguishable from those of Muhammad Shafi v. Munshi.
14. As the law laid down in Muhammad Shah v, Munshi is binding, the revision petition must succeed. In the result, the judgments and decrees of the learned Courts below are set aside and the suit of the plaintiffs, now respondents, is dismissed, but the parties are left to bear their own costs.
Leave was granted in the above appeal to consider the following question of law:--
"Leave to appeal is granted to examine the correctness of the view on a question of law taken in the impugned judgment that for a co-sharer relief under section 8 of the Specific Relief Act is not available. The only two reliefs which he can seek are, a partition of the joint property or a suit for possession under section 9 of the Specific Relief Act."
We have heard the learned counsel for the parties at length. The sole question which requires determination in this case is, whether a co-sharer who has been dispossessed from the property in his occupation by another co-sharer, could regain his lost possession through a suit under section 8 of Specific Relief Act. The learned Single Judge has relied on the case of Muhammad Shafi and 2 others v. Munshi and 3 others (1979 CLC 230) decided by a learned Division Bench of Lahore High Court, in support of his conclusion that the only remedy for a co-sharer who has been dispossessed from the property in his possession by another co-sharer to re-gain his possession is either by way of a suit under section 9 of the Specific Relief Act or by way of a suit for partition.
Following observations were made in the case of Muhammad Shafi and 2 others v. Munshi and 3 others (supra) by the learned Judges of the Division Bench in support of their conclusion that the remedy for a co-sharer, who has been dispossessed from the property in his possession by another co-sharer, is only by way of a suit under section 9 of the Specific Relief Act or suit for partition:--
"15. There is, thus, ample authority for the proposition that if a co sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property.
16. Now, the question which falls for determination is that if the co sharer occupying a specific portion of the joint property as aforesaid is forcibly ejected therefrom by another co-sharer, what legal remedies are available to him. According to the learned Single Judge, who made the order impugned herein, he can regain possession by filing a suit under section 9 of the Specific Relief Act, 1870 but not by means of an ordinary suit. In taking this view, he placed reliance on the case of Joy Gopal Singh and others, in which the High Court of Calcutta observed as follows:--
'If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under section 9, Specific Relief Act, he can only succeed on the strength of his own title. "
17. In the case of Ahmad Mianji and others it was ruled that if any such co sharer is dispossessed from specific land he has got the right to recover possession of the land of which he has been dispossessed. It was, however, not clarified as to whether the dispossessed co-sharers will be able to regain possession by means of a suit other than the one under section 9 of the Specific Relief Act. In the case-of Jalal-ud-Din, a co sharer was in inclusive possession of a specific part of certain land jointly owned by him with some others. He mortgaged, with possession, that specific part of the land in favour of a stranger.Thereupon, another co-sharer forcibly dispossessed the mortgagee. The High Court held that he had no right to eject the mortgagee and his action in so ejecting him was illegal and unauthorized. In that case the High Court also approved of the order of the two Courts below whereby the co-sharer, who had dispossessed the mortgagee, was directed to restore possession of the land in dispute to the mortgagee and also pay damages to him. It is, however, not known as to whether the suit by the dispossessed mortgagee was under section 9 of the Specific Relief Act or an ordinary suit for possession. The cases of Ahmed Mianji and others and Jalal-ud-Din are, therefore, of little help in resolving the precise question before us.
18. In the case of Pannalal Bhagirath Marwadi, however, it was held that a person who enters into peaceful possession of land, claiming it as his own although he might not have any title to the land can sue another person who has forcibly ousted him of possession and who has no better title to the land, and if the former is forcibly dispossessed, a suit under section 9 of the Specific Relief Act is not the only remedy open to him for seeking restoration of the possession and that he can also file en ordinary suit for restoration of possession of the property from which he is ousted.
19. The position, therefore, boils down to this that it is only the case of Joy Gopal Singh and others and Pannalal Bhagirath Marwadi which have bearing on the precise question as to whether a person who is deprived of the possession of an immovable property can regain its exclusive possession by means of a suit other than a suit under section 9 of the Specific Relief Act without showing that he has better title to .the property than a person who has ousted him therefrom. As indicated earlier, conflicting views have been expressed in the said two cases on the aforesaid question, and we are inclined to adopt the view taken in the case of Joy Gopal Singh and others.
20. The main reason for which we would like to follow the dictum in the case of Joy Gopal Singh and others is that it is in consonance with the letter and spirit of sections 8 and 9 of the Specific Relief Act. According to section 8, if a person desires to obtain possession of an immovable property on the basis of his title, he can bring a suit for ejectment in accordance with the relevant provisions of the. Code of Civil Procedure normally, such a suit can be filed within 12 years of the occupation of the immovable property by a person without title. The person seeking relief, under section 8, cannot succeed unless he demonstrates that he has title to the property claimed by him but the defendant had no such title thereto or, if he (defendant) too has any title, the same is not better than his (plaintiff's). As against this, if he seeks restoration of possession under section 9 of the Specific Relief Act, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the filing of the suit. Viewed in the light of this legal position, the appellants before us, who are as good co-sharers of the property in dispute as the respondents, should have filed a suit under section 9 of the Specific Relief Act to regain possession of the property in suit within six months of their dispossession. If they had done so, they would have succeeded notwithstanding the fact that their title was equal but no superior to that of the respondents. They, however, brought an ordinary suit, obviously, under section 8 the Specific Relief Act, which cannot succeed because their title is not better than that of the respondents and as such they are not entitled to retrieve the disputed property from the respondents.
21. The view taken by us is also in accord with the law laid down in the abovecited cases of Muhammad Muzaffar Khan, Muhammad Amin and others, Saeed Ullah, Syed Jamal Shah, Haji Muhammad and others, Jalal-ud-Din, Ahmad Mianji and others and Kutijan Bibi that a co- sharer in possession of a specific portion of a joint property cannot be ousted till the joint property is partitioned. At present, somehow or the other, the respondents are in possession of the property in dispute and, thus, their possession is protected by the aforesaid authorities. As for the consideration regarding possession a 'long period' it would not make any difference because beyond the period of limitation of six months prescribed for a suit under section 9 of the Specific Relief Act there would be no sure test and standard for fixing the period for acquisition of the so-called possessory right.
22. We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity.
23. We, therefore, hold that the appellants could see restoration of their exclusive possession of the site in dispute by filing a suit under section 9 of Specific Relief Act against the respondents by whom they had been ousted, but as they did not bring such a suit, they could not ask for the aforesaid relief by instituting an ordinary suit for possession without claiming better title than the one vesting in the respondents."
We are inclined to agree with the above legal proposition enunciated by the learned Judges of the Division Bench of Lahore High Court in the case of Muhammad Shafi and 2 others v. Munshi and 3 others (supra). In the case before us, the evidence on record does not show that the title of the appellants in respect of the disputed land was superior to that of the respondents. Mere fact that the appellants remained in exclusive possession of the disputed land for a long time would not make any difference, as the admitted position in the case is that both appellants and the respondents were joint owners in the Abadi Deh and Shamlat Deh which included the disputed portion of the land. We, therefore, find no reason to interfere with the judgment of learned Single Judge. The appeal, is accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.
M.B.A./R-47/S Appeal dismissed.
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