PLJ 2022 Peshawar 159
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration was decreed--Filing of cognovits by co-sharers--No evidence regarding possession of suit plot was produced by plaintiff--Respondent No. 3 was not appeared before trial Court--The plaintiff has failed to produce any cogent, documentary or oral evidence to support his claim of possession of plot--All witnesses of Defendant No. 1, 2 have categorically supported stance of Defendants and inspite of taxing cross examination petitioner has failed to shake their testimony--Written statement of co-defendant cannot bind other defendants and will be binding on maker of cognovit--No suit for possession could be filed by a co-sharer against other co-sharer and only remedy is for him to ask for partition of suit--Revision petition dismissed. [Pp. 162] A, B, C & D
2000 SCMR 1391, 1999 SCMR 2325, 2006 YLR 1071 &
2002 CLC 711 ref.
Syed Sajjad Hassan Shah, Advocate for Petitioner.
Mr. Mujahid Khan, Advocate for Respondent.
Date of hearing: 7.3.2022.
PLJ 2022 Peshawar 159
[Peshawar High Court, Abbottabad Bench]
Present: Kamran Hayat Miankhel, J.
KALIM ULLAH KHAN HASSAN ZAI--Petitioner
versus
AMIR FIAZ and 2 others--Respondents
C.R. No. 351-A of 2017, decided on 7.3.2022.
Judgment
This revision petition is directed against the judgment dated 15.11.2017, passed by the learned Additional District Judge-III, Abbottabad, whereby appeal filed by the respondents/Defendants No. 1 and 2 against the judgment and decree dated 22.04.2016, passed by learned Civil Judge-VII, Abbottabad was allowed.
2. Brief facts of the case are that petitioner/plaintiff brought a suit against the respondents/defendants for deceleration to the effect that he is owner in possession of the suit property/plot measuring 10 marlas in Khasra No. 961 measuring 22 Kanals 10 Kanals, situated at Mauza Sheikh-ul-Bandi, Abbottabad on the strength of Mutation No. 27167 dated 10.08.2011. Respondents/ defendants have no concern whatsoever with the suit plot and they are not entitled to claim the ownership thereof or to take forceful possession or to make construction thereon. In relief ‘B’ petitioner/plaintiff has also sought permanent injunction against the respondents/defendants restraining them from taking forceful possession making construction or damaging the DPC or otherwise interfering with the suit plot. Petitioner/plaintiff has also sought recovery of possession and demolition of construction if made during pendency of the suit.
3. After service of summons, the respondents/defendants put their appearance and Defendants No. 1 and 2 contested the suit by way of filing their written statements, wherein they denied the claim of the petitioner/plaintiff while Defendant No. 3 filed cognovit in favour of petitioner/plaintiff. From divergent pleadings of the parties following issues were framed and parties were directed to produce their respective evidence.
1. Whether the plaintiff has got a cause of action? OPP
2. Whether this suit is within time? OPP
3. Whether this Court has got the jurisdiction to entertain the suit? OPP
4. Whether this suit is competent in its present form? OPP
5. Whether this suit has been filed malafidely and in connivance with the defendants? OPD
6. Whether the plaintiff is estopped to sue? OPD
7. Whether the plaintiff is owner-in- possession of suit plot situated in Khasra No. 961 mouza Sheikh ul Bandi-I on the basis of sale Mutation No. 27167 attested on 10.08.2011 and the Defendants No. 1 & 2 have got no concern with the same? OPP
8. Whether the plaintiff is entitled to the decree as prayed for? OPP
9. Whether the defendants are entitled to special compensatory costs, in case of dismissal of instant suit? OPP
10. Relief.
4. After recording of evidence of the parties and hearing arguments, the learned trial Court, decreed the suit of the petitioner/ plaintiff vide judgment and decree dated 22.04.2016, whereagainst the respondent/Defendants No. 1 and 2 filed an appeal which was accepted vide judgment and decree dated 15.11.2017 and resultantly the petitioner’s suit was dismissed, hence, the instant revision petition.
5. Arguments heard and record gone through.
6. Perusal of the record suggests that petitioner/plaintiff had instituted a suit for declaration against the defendants to the effect that he is owner-in-possession of the plot in question measuring 10 marlas in Khasra No. 961 situated in Mauza Sheikh-ul-Bandi-I, Abbottabad on the strength of Mutation No. 27167 attested on 10.08.2011 and the Defendants No. 1 and 2 have got no concern with it. He also sought relief of permanent injunction against the defendants that they should not interfere in the suit plot along with his possession, if take during subsistence of suit and demolition of construction thereon, if any.
7. The Defendants No. 1 and 2 filed their joint writ statement, while Defendant No. 3 submitted his written statement in the form of cognovit. The petitioner/plaintiff in support of his claim produced Mehboob patwari halqa as PW-1, Muhammad Sher, SOK as PW-2, Hamayun Khan, NOK as PW-3 and petitioner/plaintiff himself appeared as PW-4. The defendants in support of their contentions produced and examined as many as 06 witnesses along with himself to rebut the claim of the petitioner/plaintiff. The learned trial Court decreed the suit, whereas learned appellate Court reversed the findings of the learned lower Court.
8. To resolve the controversy the main question before this Court is about possession of the suit plot, which has been constructed by bricks, blocks and a black door has also been installed. Going through evidence it transpires that both the parties are co-sharer in the suit land. The petitioner/plaintiff examined official witnesses and appeared himself in support of his claim. The plaintiff in his examination in chief stated that he had purchased the suit plot from Defendant No. 3 before Defendants No. 1 and 2 and they have purchased the land through Mutation Nos. 27711 and 27712 dated 27.03.2012 after eight months. Plaintiff when confronted with surrounding area of the suit plot, he stated that he does not know that who were the neighbourer and what construction has been made around the plot in question by other owners. The plaintiff has failed to produce any cogent, documentary or oral evidence to support his claim of possession of the plot in question, whereas Defendants No. 1 and 2 produced DW-1, who is co-owner in the suit property. They also produced DW-2, who is also residing in the same vicinity where the suit plot is situated. DW-3 also stated that he is living in the same vicinity where the plot in question is situated. All of them have categorically supported the stance of Defendants No. 1 and 2 and inspite of taxing cross-examination the petitioner/plaintiff has failed to shake their testimony.
9. As far as cognovit filed by the Defendant No. 3 in favour of plaintiff is concerned, it is suffice to say that written statement of co-defendant cannot bind other defendants and will be binding on the maker of cognovit. The Defendant No. 3 himself has not appeared before the learned trial Court as his witness in support of his cognovit. The apex Court in a case reported as Abdul Majid vs. Syed Muhammad Shamim and 10 others (2000 SCMR 1391), has held that:
“It is trite law that pleadings are not evidence by themselves and that statements of a defendant in written statement could not be used as evidence when amounting to admission of plaintiff’s pleas, without the examination of the concerned party in its support.”
10. It is by now settled law that no suit for possession could be filed by a co-sharer against other co-sharer and only remedy is for him to ask for partition of the suit. In this regard reliance is placed on cases reported as Mst. Resham Bibi and others vs. Lal Din and others (1999 SCMR 2325), Muhammad Riaz and another vs. Mumtaz Ali thorugh Legal Heirs and others (2006 YLR 1071 Lahore), and Zulfiqar and others vs. Noor Muhammad and others (2002 CLC 711 Lahore).
11. For what has been discussed above, this revision petition has no merit, therefore, the same is dismissed.
(Y.A.) Revision petition dismissed
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