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Petitioner: Nawab Haji MUHAMMAD DAWOOD KHAN and others VS Respondent: MUHAMMAD USMAN JUDGMENT
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman Title:Nawab Haji MUHAMMAD DAWOOD KHAN and others vs MUHAMMAD USMAN
JUDGMENT
Reported As: 1985 CLC 2309 Result: Revision dismissed Judgment JUDGMENT ' These are two civil revisions under section 115, C.P.C. of the Civil Procedure Code against the judgment and decree, dated 30th March, 1982 passed by the learned IlIrd Senior Civil Judge, Hyderabad in Suit No.77 of 1975 filed by the respondents against the applicants, in both the Revisions, under section 9 of the Specific Relief Act, 1877. 2. The facts leading to these Civil Revisions briefly stated, are that respondent No.1 took on lease the agricultural land ad-measuring 487-10 acres, in Deh Soomra and Keti, Taluka Hala, District Hyderabad as mentioned in Schedule 'A' to the plaint, from the applicants in Civil Revision No. 121 of 1982 defendants 1 to 5 in the Suit through registered deed, dated 25-7-1969 for 5 years commencing from Rabi 1969-70 and ending Kharif 1973-74, at the yearly lease money of Rs.50,000. Respondent No.1 was also put in possession of the land at the time of execution of lease-deed. The applicants in the lease-deed had also authorised respondent No.1 to sub-lease the land to anyone else or transfer the same except to such persons as were the enemies of the applicants. Respondent No.1, subsequently, took with himself respondents Nos. 2 and 3 as sub-lessees through an agreement, dated 4-3-1970, and all these respondents were enjoying possession of the suit land until they were unlawfully and without process of law ousted therefrom on 1-11-1974. It may be mentioned that respondent No.1 had paid the entire lease-money for the whole period of lease and no amount was outstanding as arrears against him. 3. It was also alleged that applicant No.1 did also execute another agreement of lease in respect of the same land for a further period of seven years to commence after the expiry of the first lease period.
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4. It was further alleged that through other lease agreements registered on 26-2-1973, 8-3-1973 and 21-6-1973 the applicants in Revision No. 138 of 1982 defendants Nos. 6, 7 and 8 in the Suit leased out the other lands measuring 340-48 Acres as Scheduled 'B' in favour of Respondents in Revision 138-82 and simultaneously put the said respondents in possession thereof, which continued in their possession until 14-11-1974 when the said applicants in collusion with applicant (Haji Nawab Dawood) dispossessed them without their consent and without due process of law. Ultimately, on 1-11-1974 and 14-11-1974 the applicants in both the Revisions illegally and forcibly ousted the respondents from the lands described in Schedules 'A' and 'B', respectively. Respondent No.1 in Revision 121-82 sent a number of telegrams to the authorities including a telegram to the Prime Minsiter of Pakistan stating the circumstances therein. 5. It was further alleged that applicant No.1 started a campaign against the respondents to harass them in one way or the other and he for himself and for the rest of the applicants was attempting to forcibly dispossess the respondents, from the suit lands though, to the knowledge of the (applicants), the first lease period was to expire with the expiry of Kharif Season of 1974. 6. It was further alleged that all the applicants collided and conspired with each other to illegally and forcibly dispossess the respondents from the suit land and that applicant No. 1 (in Revision 121 of 1982) for all the Respondents in both the revisions on 1st and 14th November, 1974 illegally and forcibly dispossessed the respondents in both the revisions from all the lands comprised in Schedule 'A' and 'B'. Consequently, a suit under section 9 of the Specific Relief Act for the restoration of the possession of the suit land was filed in the III Court of Senior Civil Judge, Hyderabad. The applicants Nos. 1 to 4 in Revision No.121-1982, who put in their appearance and filed their written statement, denied the alleged leasing out the agricultural land , to respondent No.1 and the execution of any lease-deed and putting the respondent No.1 into possession of the suit land. It was also denied that respondent No.1 was authorised to sub-lease the lands to anyone else. It was also contended that the suit was not maintainable under section 9 of the Specific Relief Act and that it was under-valued and barred by Martial Law Regulations 115, and also bad for mis-joinder of the causes of action and for non-joinder of parties. 7. Applicants Nos. 1 and 3 in Revision No. 138 of 1982 defendants Nos. 6 and 8 in the suit also filed written statement. While denying the averments of the plaint it was specifically pleaded that the respondents did not pay the lease money which was due on 15-1-1975 in the sum of Rs.15,625 and that respondent No.1 being interested in the lands of applicants Nos. 1 to 5 in Revision No. 121 of 1982, had taken the lands of applicants Nos. 1 and 3 in Revision 138 of 1982 on lease on account of water and other facilities. It was also pleaded in the written statement that the respondents were not dispossessed from the land in question by the said applicants/defendants 6 and 8 but the land of the said applicants was abandoned by the respondents because they did not continue in the possession of the lands of applicants Nos.1 to 5 in Civil Revision 121-82. It was further pleaded that applicant No.8 had cultivated the lands and spent Rs.44,186 but he could not get the crop due to an injunction granted by the civil Court and the same was taken away by the Haries of the land. 8. From the pleadings of the parties the following issues were framed:- (1) Whether the suit is not maintainable in law? (2) Whether the suit is not maintainable in its present form? (3) Whether the suit is bad for multifariousness? (4) Whether the suit is improperly valued and plaint is insufficiently stamped? (5) Whether the suit is barred under provisions of M.L.R. 115? (6) Whether the plaintiff No. 1 had sub-leased Schedule 'A' Lands to plaintiffs Nos. 2 and 3 and that they remained in possession and enjoyment thereof with plaintiff No. 1? (7) Whether plaintiffs Nos. 1 to 3 were unlawfully dispossessed and deprived of the Schedule 'A' Lands by defendant No. 1 in collusion with other defendants on 1-11-1974?
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(8) Whether defendant No. 1 in collusion with other defendants forcibly ousted plaintiffs Nos. 4, 5 and 6 from Schedule 'B' Land on 14-11-1974? (9) Whether defendants Nos. 1 to 5 are entitled to costs under section 35-A, C.P.C? If yes, how much? (10) What should the decree be? 9. The respondents to prove their case examined respondent No. 1 (Exh.277), Muzaffaruddin (Exh. 288), Rajab Ali (Exh.300) and Akbar Hussain (Exh.303). On behalf of the applicants Nos. 1 to 4. Applicant No. 1 (Exh.357) examined himself and their witnesses Allah Warayo (Exh.373), Abbas Ali Tapedar (Exh.380). Applicant No. 5 in Revision No. 121-82 and applicant No. 2 in Revision No. 138 of 1982 were declared ex parte, Other applicants in Revision No. 138 of 1982 did not however lead any evidence. 10. The learned Civil Judge by his judgment an,i decree, dated 30th March, 1982 found issues Nos. 1 to 5 and 9 in the negative and issues Nos. 6, 7 and 8 in the affirmative and decreed the suit under section 9 of the Specific Relief Act with the direction that possession of the suit land as comprised in Schedule 'A' be returned to plaintiffs Nos. 1, 2 and 3 respondents in Revision No. 121 of 1982, and the lands mentioned in Schedule 'B' restored to plaintiffs Nos. 4, 5 and 6 respondents in Revision No. 138 of 1982, till the plaintiffs/respondents in both the Revisions are not evicted in due course of law. 11. Against the said judgment and decree, two Civil Revisions have been filed by the applicants/landlords in respect of lands mentioned in Schedule 'A' and 'B' being R.A. No. 121 of 1982 and 138 of 1982, respectively. 12. I have heard Mr.A.K.Brohi and Mr.Naimat Ullah Soomro learned counsel for the applicants and Mr. Nasim Farooqui, learned counsel for the respondents in both the Revisions. 13. Mr.A.K.Brohi, learned counsel for the applicants in Revision No. 121 of 1982 contended firstly that the lease of the Respondents having come to an end in Kharif, 1974 i.e. in or about September, 1974, Respondent's possession of the lands mentioned in Schedule 'A' had become illegal, and as such they being trespassers, the very maintainability of the suit of the respondents is questionable. He submitted that section 9 of the Specific Relief Act, 1877 envisages juridical possession and not possession simplicitor. In support of his submission he relied on a number of decisions namely Abdul Jameel v. Haroon PLD 1969 Kar. 78; Emperor v. Bendhu Singh and others AIR 1928 Patna 124 and Dr. M.C. Batra v. Lakshmi Insurance Co. Ltd. AIR 1946 All. 709. 14. In the first case PLD 1969 Kar. 78 it was observed by Noorul Arifin, J. as he then was, that "where allegations in a plaint are those of ownership, no decree can be passed under section 9 of the Specific Relief Act. Apparently the decision is not applicable to the facts of the present case. The other two cases are the decisions of the Division Benches of the Patens and Allahabad High Courts AIR 1928 Pat. 124 and AIR 1956 All. 709. The relevant observations in the Patna case read as under:- "If the true owner acquiesces or acts otherwise, so that legal possession vests in the trespasser, then he must resort to civil Court and bring a suit either under S.9 or in ejectment, or in trespass for damages. The continuance in possession of the trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land or as near to it as he dares, to make a claim to it." 15. The observations in Allahabad case read as follows:- "Section 9 says nothing about the nature of the possession enjoyed by the person dispossessed, but it has been held in some cases that such possession must be what is called juridical possession, that is to say possession founded on some right: See 'Amiruddin v. Muhammad Jamal' 15 Born. 685 (A)."
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16. In that case as Insurance Company entered into possession of the premises vacated by the supply company peacefully; and it did so, it appears, because it considered that the Supply Company had been its tenant. It was thus observed:- "It may have been wrong in law in so thinking; that question has not been determined, but we cannot say that the Insurance Company had not a sufficient possession to entitle it to file a suit under section 9. We think that save in those cases where the nature of the possession of the plaintiff is clearly such as to result in proceedings under section 9 defeating the purpose of that section, the title of the plaintiff is no more to be enquired into than that of the defendant." 17. On the other hand, Mr.Nasim Farooqui learned counsel for the respondents relied on a number of decisions reported as A.R. Muhammad Siddique v. The Saifee High School Board 1983 CLC Kar. 507, Secretary of State v. Dinshaw Navroji and another AIR 1925 Sind 275; Muhammad Rafi v. Muhammad Siddiq PLD 1973 Note 20 at p. 31, Riaz and others v. Razi Muhammad PLD 1979 Kar.. 227 and Riaz and another v. Razi Muhammad 1982 SCMR 741. 18. In 1983 CLC 507, it was observed by a learned Single Judge of this Court that in a suit brought under section 9 the plaintiff who has been dispossessed is entitled to succeed merely by proving that (1) he was in possession of the immovable property in suit, (2) that he had been dispossessed by the defendants, (3) that the dispossession was not in accordance with the law and (4) that the dispossession took place within 6 months of the filing of the suit. 19. In AIR 1925 Sind 275 it was observed that:- "Where the tenancy has not -terminated or where on account of certain circumstances it is not open to the landlord to terminate the tenancy there is no reason why he should be allowed to dispossess his tenant without having recourse to law and then to retain possession. which he could not obtain through a Court of law. In the present case though the tenancy is a monthly tenancy it has not been terminated. Apart from the provisions of the Bombay Rent (War Restrictions) Act a monthly tenancy can be terminated only in the manner prescribed under section 108 of the Transfer of Property Act which applies to Sind. In this case no notice to terminate the tenancy has been given by the landlord. There is no express or implied surrender of the tenancy...." 20. For the above view, reliance was placed on Rudrappa v. Narsongrao 1925 29 Born. 213 wherein it was observed that in India the common law right of re-entry by the landlord does not exist and even where the landlord has obtained possession of the premises after the tenancy has been validly terminated it is open to the tenant to institute a suit within six months of dispossession under section 9 of the Specific Relief Act. 21. In PLD 1979 Kar. 227 Mr. Justice Z.A.Channa (as he then was) while dealing with the scope of section 9 observed that a person cannot be denied having recourse to the provisions of section 9 of the Specific Relief Act, merely because he has permitted another person to temporarily use the premises for a specific and limited purpose. In such a case, in the opinion of the learned Judge, he still continues to be in possession of the same that the actual and physical possession may be with another person. Thus, according to the above judgment, the actual and physical possession of the premises is not an essential pre-condition to the filing of the suit under section 9 of the Specific Relief Act and it is enough if the plaintiff can show that either he was in constructive possession of the property or that he had the power of using the property at the relevant time. 22. In PLD 1973 Note 30 the Municipal Engineer under the colour of exercising a jurisdiction forcibly ejected the plaintiff from possession declaring the premises to be dangerous. The conduct of the owner of the building and that of the Municipal Committee was found male fide. It was thus observed by Ghulam Rasool K. Shaikh, J. as he then was that the act was actuated by bad faith to cause injury to the respondent. To allow such an action to be treated to have been taken in due course of law is to defeat the law and perpetuate injustice Evidently, this could not be permitted. It was thus observed that:-
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"The conduct of the applicant had been dishonest hence he succeeded in evicting the respondent by adopting the dishonest device although the eviction application filed by him was still pending before the Rent Controller. The relief under section 9 of the Specific Relief Act is an equitable relief and the applicant has failed to satisfy that the discretion was not properly exercised by granting the decree in favour of the respondent." 23. In 1982 SCMR 741 it was inter alia, stated as follows:- "This provision of law has four ingredients. Firstly, the person suing must have been dispossessed. Secondly, such dispossession must be of immovable property. Thirdly the dispossession should be without his consent. Fourthly, dispossession should be otherwise than in due course of law. The two requirements which are contested directly in this appeal and require determination are the last two. Consent obtained by deceit, trick or artifice, as held by the Courts concurrently is according to the learned counsel, consent nevertheless and when such a consent is not lacking, the handing over of the possession cannot be said to be otherwise than in "due course of law". 24. The learned Judges of the Supreme Court disagreeing with the above proposition, held that "the consent obtained, without the element of force or duress, but by deceit, trick or misrepresentation deliberately practised is no consent in the eye of law for the purposes of section 9 of the Specific Relief Act. On account of the same taint, not only the possession obtained by the appellants was without the consent of the plaintiff-respondent, it was also otherwise than in accordance with law." 25. The plaintiff in a suit under section 9 of the Specific Relief Act has to prove that he was in possession of the immovable property and that he was dispossessed from the said property without his consent by the defendant otherwise than in due process of law, within six months prior to the institution of the suit. The object of the section is to prevent the people from taking the law in their hands, however, good their title may be. What the section provides is a summary remedy to a person, who has been dispossessed from immovable property without his consent and otherwise than in due course of law, for recovery of possession without establishing title over the said property. The section does not say anything about the nature of possession enjoyed by the person dispossessed. 26. According to the contention of Mr. Brohi a suit under section 9 cannot be maintained by a person who is manifestly a trespasser, because section 9 would not help to perpetuate an illegality. In other words, section 9 although is silent about the nature of possession, yet it cannot be attributed that the law will come to the rescue of a person who is shown to be a rank trespasser having no title, right or interest in the property from the very begining since he entered into possession of the property. In this regard let me put down that Mr. Farooqui conceded that section 9 requires the plaintiff to be in legal possession and that a trespasser cannot seek summary relief under section 9 of the Specific Relief Act. I, however, feel reluctant to accept the proposition, as advanced by Mr. Brohi and cancelled by Mr. Farooqi because the section itself seems to be concerned with the fact of possession and not the 'title or right to possession.' In this respect, I may refer to two decisions namely Tamizuddin v. Ashrub Ali I L R 31 Cal. 64 (F.B.) and Shiv Ram Batta v. Punjab Textile Mills Ltd. PLD 1949 Lah. 143 (F.B.) 27. In the first case Tamizuddin v. Ashrub Ali (31 Cal. 647) of the Calcutta High Court chose, J. said at page 656 of the report that under section 9 "a summary remedy is applicable alike to a person whether he be a trespasser, a tenant or an owner of the land when he is ejected without due course of law." 28. In the second case of Muhammad Khan son of Ali Sher and others v. The Crown PLD 1949 Lah. 421 the facts were different but the following observation by Mr. Justice Muhammad Munir, the then acting Chief Justice of Lahore High Court, later on the Chief Justice of Pakistan, is pertinent:-
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"His position after the partition was that of a pure trespasser, and though nobody has a right to dispossess by force a trespasser who is in settled possession of land, and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner." 29. This observation clearly implies that a person who has got settled possession cannot be evicted except through a Court of law, 30. In any case, I am not called upon to decide the question of a trespasser as it does not arise in this case. The present case is that of a lessee and not a trespasser ab initio. In such circumstances, the respondent invoking jurisdiction under section 9 of the Specific Relief Act were to show that their first entry on the immovable property was legal. As their possession is that of'lessees, the lease-hold rights were continuing on the day of dispossession, either under a contractual tenancy or statutory tenancy. Even after the tenancy has been validly terminated, and they are dispossessed without their consent and in an unlawful manner, while they were holding over, they have got a right to file suit under section 9 of the Specific Relief Act for restoration of possession to them. 31. For the above view, I am supported by a decision reported as Azim Khan v.. State of Pakistan and another PLD 1957 (W.P.) Kar. 892. In that case Z.H. Lari and Wahiduddin Ahmad, JJ.(as they then were)observed that:- "This clearly stipulates that no person has a right to eject a person in possession except through the instrumentality of a Court of Law. The common-Law right conceded to a lessor in England cannot be granted to a lessor in Pakistan. The effect of section 9 of the Specific Relief Act has been construed in a number of Indian cases. The earliest case is that of Kunhi Komapen Kurupu v. Ghangarachan Kandil Chembata Ambu (2 M H C R 313). Their Lordships observed as follows:- "In cases under that section a lessor, who had dispossessed otherwise than by due course of law a lessee whose term had expired, would be compelled to restore possession to the lessee. The plain object is to discourage proceeding calculated to lead to "serious breaches of the peace and to provide against the person who has taken the law into his own hands deriving any benefit from the process. It was intended to obviate the effect of the possible application of English law to such cases. That law, as laid down in Harvey v. Bridges is that the free holder, if entitled to eject the person in possession, may commit an indictable offence in doing so, and yet gain all the advantages of a legal possession and be perfectly secure against the action of the party assaulted." Similar views were expressed in the Full Bench case Wall Ahmad Khan and other v. Ajudhia Kandu I L R (13) All. 537, Sofaeli Khan and another v. Woopean Khan (9 WR 123) and Rudrappa Bin Sankappa v. Narsingrao Ramchandra Keblikar and another ILR 1905 Bom. 213). There are various authorities which support the view taken above that a lessor cannot on his own eject a lessee even though his tenancy might have been terminated. In the case of Nanak Chand and others v. State of Uttar Pradesh and others AIR 1955 All. 165 their Lordships observed:- "The petitioners do not really desire a decision in this petition with respect to their right and its nature in the land they occupy. Their main grievance is against the legality of the order directing their ejectment by force through the help of the police. Nothing has been shown on behalf of the opposite parties which would justify the aforesaid orders, dated the 2nd and 8th of February, 1954. Whether the petitioners have got any right in the land in dispute or not, they are the persons in possession of the land and in case they have no right in the land they can be ejected under a proper process of law. ' Ordinarily they should be sued for ejectment. If they were to be evicted by the opposite parties by force, there should be some law Which gives this power to the opposite parties. No such law has
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been referred to us." ' The Learned Judge of the Pepsu High Court in the case of Mohinder Singh v. State of Pepsu and another AIR 1955 Pepsu 61 observed:- "It may be, and it probably is true, that the petitioner has no valid title to the land, but that is a matter that would come for decision by a Civil Court when the respondents should attempt to dispossess the petitioner of the land by a regular suit in a Court of law. It is admitted on behalf of the respondents by their learned counsel that there is no summary procedure provided by law in this state whereby the executive authorities can dispossess a man of immovable property as has been done in the present case. It is, therefore, manifest that the action of the respondents in dispossessing the petitioner of their land by executive action and without recourse to law is illegal and without jurisdiction. 32. Applying the above principle and case-law to the present case, the respondents/plaintiffs were admittedly inducted into possession of the land mentioned in Schedule 'A' and 'B' under valid registered Lease deeds. Even if the lease in case of lands mentioned in Schedule 'A' came to an end before the cause of action accrued to the respondents, they had a right to be and remain in possession as holding over the tenancy and they could not be ejected forcibly without taking recourse to the proceedings under Transfer of Property Act, 1882, which governed the leases in question. So the first contention of Mr. Brohi, as discussed above, has no force. Furthermore since the lease in respect of lands mentioned in Schedule 'B' had not even expired the re-entry by the applicants in Revision No. 138 of 1982 has no sanction behind it. 33. Mr. Brohi, then, made the following submissions: - (1) Admittedly at the time of the alleged dispossession the respondent No.1 was not present. His son Abdur Rehman and his alleged sub-lessee Muhammad Din were present. Abdur Rehman did not examine himself. With the evidence of Muhammad Din, the only eye-witness, the alleged event of dispossession and…
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