Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Writ Petition No.2527 of 2010 with I.R with CM No.273-P/14.

Date of hearing……15/10/2014.

Muhammad Sareer Khan etc Vs Arbab Sultan etc.

Petitioner (s) by………………………………………………………...

Respondent(s) by……………………………………………………....

MALIK MANZOOR HUSSAIN, J:- Through this

Constitution petition, the petitioners have challenged

legality and propriety of judgment dated 15.12.2009,

passed by learned Civil Judge-XI, Peshawar and the

judgment dated 15.4.2010, passed by learned Addl:

District Judge-VII, Peshawar, whereby the suit filed by the

respondents for possession was decreed and was

affirmed by learned Revisional Court/Addl: District Judge.

2. Briefly stated, the facts giving rise to the

instant petition are that respondents filed a suit for

restoration of possession u/s of Specific Relief Act. The

suit was contested by petitioners and after recording pro

& contra evidence, the learned trial Court decreed the

suit. Feeling dissasitsifed the petitioners preferred civil

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revision, which was dismissed through judgment dated

15.4.2010, hence the instant Writ Petition.

3. Learned counsel for petitioners contended

that the respondents failed to prove the factum of forcible

dispossession and also to file the suit within time

prescribed u/s 9 of the Act ibid therefore, the suit was

liable to be dismissed. It was further contended that

petitioners purchased the property vide mutation No.172

attested on 29.11.2001 and became owners therefore, no

suit against co-owners for possession was maintainable.

4. Conversely, learned counsel appearing on

behalf of respondents contended that the respondents

were in peaceful possession of the suit property since

1953 and without any decree of the Court the

respondents were dispossessed by petitioners, thus a suit

u/s 9 of the Act ibid was maintainable and had rightly

been decreed by the Court below. It was further

contended that the question raised by petitioners were

question of facts and concurrent findings of facts arrived

at by the Courts below, being based on sound reason

could not be interfered with in exercise of Constitutional

jurisdiction.

Arguments heard, record perused.

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5. Perusal of the record reveals that suit property

was purchased by respondents through registered deed

No.411 attested on 15.3.1953 and were recorded in

Column of possession till 2001. The respondents

purchased share from the suit Khata vide mutation

No.172 attested on 19.11.2001 and on the basis of this

mutation they got recorded entry in Khasra Girdawari.

This change of entry was challenged by respondents

before revenue hierarchy, which was set aside and the

order was maintained till SMBR. Lateron the petitioners

challenged the final order of revenue hierarchy through

Writ Petition No.447/2004, which was also dismissed by

this Court.

6. It is well settled by now that a co-sharer in

exclusive possession of joint portion of property for a long

period cannot be dispossessed by another co-sharer

except for bringing a suit for partition. The possession of

respondents was supported by long standing entries and

it has been noticed by this Court that the vendor of

petitioners were not in possession of the property when

they transferred the same in favour of petitioners rather

they admitted this fact in their written statement as well in

Court statements.
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7. The petitioners stepped into shoes of their

vendor who were not in possession of suit land at the spot

when the property was sold out to the petitioners. Since

their vendors were not in possession, the petitioners were

not entitled to interfere in possession of the respondents

without due course of law. They have got no right to take

the law in their own hands and to take forcible possession

under the garb of mutation. If the petitioners were

interested in possession of the land, they were bound to

seek remedy before Court of competent jurisdiction on the

basis of sale deed. No one else including the other co-

owners had any right to dispossess the respondents by

show of force. In a similar circumstances a learned

Division Bench of Karachi jurisdiction in the case of

“Abdul Wahid Mirza Vs Vth Additional District Judge

(South) Karachi & others (1989 CLC 957) not only

maintained the order passed by the learned trial Court as

well as appellate Court with regard to restoration of

possession but also dismissed the Constitution petition.

Reliance can also be placed on the judgments passed in

the cases of “Muhammad Amin & others Vs Karam

Dad & other (69 IC 671), Syed Jamal Shah Vs Abdul

Qadir Shah & others (PLD 1955 Pesh. 26),

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“Muhammad Muzaffar Khan Vs Muhammad Yousaf

Khan” (PLD 1959 SC(Pak) 9) and “Kutijan Bibi Vs

Zulmat Khan & others” (PLD 1968 Dacca 172).

8. We are therefore, of the opinion that after their

dispossession which was not in accordance with law, a

suit u/s 9 of the Specific Relief Act was rightly filed and

decreed by learned Courts below. In this view of the

matter, we are in respectful agreement with the

observations made by both the learned Courts below and

the impugned judgments of Courts below needs no

interference by this Court as Constitutional jurisdiction

cannot be converted to appellate jurisdiction. Even

otherwise this Court could not constitute itself as a Court

of appeal for the purpose of examining factual

controversy which had already been adjudicated upon by

two competent Courts below.

In view of what has been discussed above,

this petition being devoid of any merit is dismissed

alongwith Interim Relief and CM No. 273-P/14.

Announced
Dated: 15.10.2014.

CHIEF JUSTICE

JUDGE
“A.Qayum”