2019 S C M R 84

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Syed Mansoor Ali Shah and Yahya Afridi, JJ
TAJ WALI SHAH---Appellant
Versus
BAKHTI ZAMAN---Respondent
Civil Appeal No. 71-P of 2015, decided on 22nd October, 2018.
(On Appeal from the judgment of the Peshawar High Court, Peshawar dated 19.02.2015
passed in Civil Revision No. 524-P of 2014)
(a) Specific Relief Act (I of 1877)---
----S. 8---Recovery of specific immovable property---Person entitled to seek remedy under S.
8 of Specific Relief Act, 1877---Scope---Such person would include an owner, lessor, lessee,
mortgagee or mortgagee of immovable property, trustee or beneficiary of a trust.
Nair Service Society Ltd. v. K.C. Alexander and others AIR 1968 SC 1165 ref.
(b) Constitution of Pakistan---
----Arts. 4 & 10-A---Access to justice, right of---Scope---Vested right---Any right vested in a
person to seek his remedy under the law should be liberally construed, as this would bolster
his recognised fundamental right of access to justice.
(c) Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Suit for recovery of specific immovable property---Relief---Scope---In a suit
under S. 8 of the Specific Relief Act, 1877, the declaration of the entitlement was an inbuilt
relief claimed by the plaintiff of such a case---In such circumstances, a prior declaration for
the said entitlement under S. 42 of the Specific Relief, 1877 could not be made a condition
precedent for filing a suit for possession under S. 8 of the Act.
Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 ref.
(d) Specific Relief Act (I of 1877)---
----Ss. 8 & 9---Recovery of specific immovable property---Undivided property--- Co-owners-
-- Co-owner of disputed property seeking possession from another co-owner, who was in
peaceful possession of the disputed undivided property---Remedy in such circumstances was
to seek possession through partition, and not by a suit under S. 8 of the Specific Relief Act,
1877.
(e) Specific Relief Act (I of 1877)---
----S. 8---Recovery of specific immovable property---Vested right---Scope---Person in
possession of an immovable property acquired a vested right to possession, which could not
be taken away unless the challenge was made thereto by a person who showed prior or better
title through transfer or inheritance.
(f) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---
----Ss. 3 & 42---Abadi deh---Proprietary rights, transfer of---Transfer of proprietary rights in
abadi deh were not recorded under S. 42 of the Khyber Pakhtunkhwa Land Revenue Act, 1967,
as the said area had been, under S. 3 of the said Act, expressly excluded from the applicability
thereof.
(g) Specific Relief Act (I of 1877)---
----S. 8--- Recovery of specific immovable property--- Undivided immovable property---Suit
filed by one of the co-sharers for ejectment of a trespasser or person exercising possession
over disputed property---Effect---Firstly, filing of such a suit could not be considered as
evidence of the co-sharer's denial of the title of the other co-sharers; secondly, the suit brought
by the co-sharer would be deemed to be for the benefit of the other co-sharers; and thirdly,
when the co-sharer acquired possession in consequence of the proceedings, he would be in
possession of the entire property, on behalf of all co-sharers and his said possession could not
be deemed as adverse to the other co-sharers.
Bashir Ahmad and others v. Parshotam and others AIR 1929 Outh 337 and Kanchi
Kamamma and others v. Yerramsetti Appanna AIR 1973 Andhra Pradesh 201 ref.
M. Faheem Wali, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record
for Appellant.
 Muhammad Asif, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for
Respondent.
Date of hearing: 27th September, 2018.
JUDGMENT
YAHYA AFRIDI, J.---Through the instant Civil Appeal, Taj Wali Shah, (appellant-plaintiff)
has challenged the judgment dated 19.02.201.5 passed by the Peshawar High Court, Peshawar
vide which Civil Revision (C.R. No.524-P of 2014) was accepted and the suit of present
appellant was declared as not being maintainable.
2. Taj Wali Shah instituted a suit seeking possession by ejectment of Bakhti Zaman
(defendant-respondent) from a house measuring 18 marlas situated in Khasra No.1493 Mousia
Sher Garh (disputed house) on the basis of being owner vide sale deed No.207 dated
31.03.2010 (sale deed), default in payment of rent vide Karaya-Nama dated 23.06.1982 (rent
deed), illegal alteration thereon, and for his personal use; recovery of outstanding rent; and
permanent injunction.
3. Bakhti Zaman, in response to the averments made in the plaint, contested the same in his
written statement, claiming that the disputed house was the legacy of his predecessor, which
has been in their possession as owners for the last 80/90 years. In support of his claim, it was
averred that the gas meter installed in the disputed house was under his uncle's name. He also
contested the sale deed and further denied ever residing in the disputed house as a tenant.
4. The Trial Court reduced the contested pleadings of the parties into 11 issues, and allowed
the parties to adduce their respective evidence. Finally, the Trial Court vide its judgment and
decree dated 12.03.2013 decided the suit in favour of Taj Wali Shah in terms that:
"The upshot of above discussion is that the plaintiff is the owner of the suit house. The
defendant is a tenant under the plaintiff. The defendant is a defaulter in the payment of
rent so he is liable to eviction and plaintiff is awarded decree as prayed for."
5. Being aggrieved, Bakhti Zaman impugned the decision of the Trial Court in appeal before
the Appellate Court, which also met the same fate vide judgment and decree dated 17.05.2014
in the following terms:
"Plaintiff/respondent has proved his case and the defendant/appellant has failed to prove his
stance. Thus, findings of the trial court on all the issues except issues Nos.09 and 10
are based on proper appreciation of evidence. Findings on issues Nos.09 and 10 need
trial modification in light of discussion made above. Therefore, judgment and decree
of the trial court is upheld with modification to the extent of determination of the
amount of rent. Appeal in hand is dismissed to extent of ejection and permanent
injunction, being devoid of merit while it is partially allowed to extent of modification
of findings regarding the amount of rent."
6. This led Bakhti Zaman to challenge the above decision in Civil Revision before the High
Court, which was finally decided in his favour, essentially on the following premise:
"Any suit under section 8 of the Specific Relief Act, 1877, could be filed by any person
entitled to the possession of specific immovable property on the basis of his title and
where the title is disputed one a suit under section 42, for declaration, under Specific
Relief Act, 1877, is to be filed. Where a suit for possession, on the basis of a title which
is disputed one, creating a cloud over his title, he must seek a declaration to his right,
first."
And finally, after reviewing the evidence on the record, the High Court came to the conclusion
that:
"In view of the above, it can safely be held that both the courts below have ignored the fact
by misreading and non-reading of evidence, that respondent/plaintiff is not the absolute
owner of the property in dispute and his titled is defected one, therefore, suit under
section 8 of the Specific Relief Act, 1877, was not maintainable and in such like
situation a suit for declaration under section 42 of the Act, ibid was competent, thus,
both the impugned judgments of the lower courts are set aside and the suit of the
respondent/plaintiff is dismissed being not maintainable in the given circumstances."
 7. We have heard the learned counsel for the parties and with their valuable assistance have
gone through the available record.
8. The entire controversy in the present case revolves around the scope and the true purport
of section 8 of Specific Relief Act, 1877 (Act of 1877), which reads as follows:
"8. Recovery of specific immovable property.
A person entitled to the possession of the specific immovable property may recover it in the
manner prescribed by the Code of Civil Procedure."
9. On careful reading of the aforementioned section, it is noted that the same provides for
two essential elements in a suit for recovery of a specific, immovable property; firstly, it
identifies the person, who may seek the remedy under this, section; and secondly, it specifies
that said remedy is to be invoked and tried in accordance with the forum and procedure
provided under the Civil Procedure Code, 1908.
10. The present case deals with the first part of section 8 supra, which relates to the right of
a person entitled to possession under the law. This right to seek possession is anchored on the
word entitled, and to understand the meaning thereof, we will have to examine the true intent
of the legislature in inserting the said word in section, 8 supra. For this purpose, guidance may
be sought from Narotam Singh Bindra's Interpretation of Statutes (Tenth Edition), wherein it
is explained that:
"The primary and foremost task of a court in interpreting a statute is to ascertain the
intention of the legislature, actual or imputed. The words of the statute are to be
construed so as to ascertain the mind of the legislature from the natural and grammatical
meaning of the words which it has used."
11. Now, the Oxford dictionary meaning of the word entitle is, "often be entitled to give
(someone) a legal right or a just claim to receive or do something", while Black's Law
Dictionary (Tenth Edition) defines the term to be ".... grant a legal right to or qualify for". It
appears that the true intent of the legislature, as gathered from the ordinary meaning of the
word entitled coupled with the natural spirit and the very reason of the provision, was to extend
the scope of the right to seek possession to those persons who are eligible or qualified under
the law to seek possession of an immovable property. This would thus include; an owner,
lessor, lessee, mortgagee or mortgagee of immovable property, trustee or beneficiary of a trust.
12. Had the intention been to restrict the scope of the right to seek the possession to only
owners, then the legislature would have expressly provided so, which it did not. In fact, any
right vested in a person to seek his remedy under the law should be liberally construed, as this
would bolster his recognised fundamental right of access to justice. In consonance with the
same line of thought, the Indian Supreme Court in Nair Service Society Ltd. v. K.C. Alexander
and others (AIR 1968 SC 1165) went on to extend the scope of section 8 supra to a possessor,
by enunciating that:
"Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that
the, procedure laid down by the Code of Civil Procedure must be followed. This is very
different from saying that a suit based on possession alone is incompetent after the
expiry of 6 months. Under section 9 of the Code of Civil Procedure itself all suits of a
civil nature are triable excepting suits of which their cognizance is either expressly or
impliedly barred."
13. Let us now address the preliminary objection of the learned counsel for the respondent;
that Taj Wali Shah could not seek possession under section 8 supra without praying for a
declaration of his title over the disputed house. This issue has been aptly commented upon in
a recent judgment of this Court passed in the case of Hazratullah and others v. Rahim Gul and
others (PLD 2014 SC 380), in terms that:
"... it may be held that in a suit under section 8 of the Specific Relief Act, 1877, the
declaration of the entitlement is an inbuilt relief claimed by the plaintiff of such a case.
Once the plaintiff is found to be entitled to the possession, it means that he/she has been
declared to be entitled, which includes the declaration of title of the plaintiff qua the
property."
 14. Interestingly, in the present case, the trial Court, in fact, framed two issues relating to
the contesting claim of title over the disputed house to the effect:
"......
7 Whether the defendant is the owner of the disputed house?
8. Whether the plaintiff is the owner of the disputed house vide Iqrar-Nama dated
31.03.2010? "
15. In furtherance to the aforementioned two issues framed by the trial Court, and the
evidence adduced by the parties in support of their respective claims to title over the disputed
house, the trial Court passed a definite finding in favour of Taj Wali Shah. This finding
transcended into an express declaration of title in the decree, when no specific prayer for title
of the disputed house was sought by Taj Wali Shah in his plaint. This being so, it reaffirms the
ratio of Hazratullah's case supra, that in a suit under section 8 of the Act of 1877, there is
ordinarily an inbuilt prayer for the declaration of entitlement to possession, which is sought by
the plaintiff. In view of the express declaration of title in the decree passed by the trial Court,
the preliminary objection of the respondent and direction of the High Court, for Taj Wali Shah
to first seek a declaration of title under section 42 of the Act of 1877 before filing a suit for
possession under section 8 supra was not justified, and in the circumstances of the present case
it would in fact be an exercise in legal futility.
16. A very crucial admitted position in the present case having serious legal consequences
was that the disputed house was situated within the 'Abadi Deh' (village site), and this fact
warranted the evidence relating to the transactions of proprietary rights therein to be viewed
in the light of the special principles governing the said area. Firstly, the transfer of proprietary
rights in favour of Taj Wali Shah vide the sale deed could not be recorded under section 42 of
the West Pakistan Land Revenue Act, 1967, as the village site has been, under section 3 supra,
expressly excluded from the applicability thereof. Secondly, Bakhti Zaman, despite being in
possession of the disputed house, was unable to prove that he was a member of the proprietary
body of the village site of Sher Gargh. In fact, his own uncle, Ali Mohammad (DW2) clearly
admitted that Bakhti Zaman was from another village in Mauza Qasmi. This being so, Bakhti
Zaman could only be put in peaceful possession of any piece of the land in the village site of
Sher Gargh through a valid transfer or legacy, which he failed to prove. Thirdly, Salah-ud-Din
and Siraj-ud-Din were proved to be members of the proprietary body of the village site of Sher
Gargh, being sons of Amir-ud-Din, as reflected in the Pedigree Table (Exp PW4/1). It was also
brought on record that Amir-ud-Din had expired and was survived by a widow, four sons
including Siraj-ud- Din and Salah-ud-Din, and four daughters. Finally, had Bakht Zaman, even
without proving his claimed legacy, established himself to be member of the proprietary body
of the village site, he could then have claimed the status of a co-owner of the disputed property,
and in such circumstances, the challenge made to his possession by Taj Wali Shah under
section 8 of the Act of 1877 would not have been maintainable. The remedy then available to
Taj Wali Shah would have been to seek possession of the disputed house through partition
only and, not by a suit under section 8 of the Act of 1877.
17. The impugned decision of the High Court reveals that the above crucial principles
relating to transfer of immovable property in Abadi Deh; particularly, the legal position of the
transfer of proprietary interests of immovable property in Abadi Deh, the legal standing of a
member of proprietary body of Abadi Deh vis-a-vis that of an outsider, and finally, the locus
standi of a co-owner seeking possession of the property under section 8 of the Act of 1877
were not taken into proper consideration, resulting in an error warranting legal correction.
18. Now to the contested claims of title over the disputed house. To appreciate the evidence
produced by the parties, it would be essential to keep in view that Taj Wali Shah had instituted
the suit for possession, as owner of the disputed house, which was in the possession of Bakhti
Zaman. In such circumstances, the onus to prove the title of the disputed house rested upon
Taj Wali Shah's shoulders under the mandate of Articles 117, 118, 119 and most importantly
126 of the Qanun-e-Shahadat Order, 1984 (Order of 1984).
19. This brings us to examine, whether Taj Wali Shah had discharged his onus in proving
his said claim or otherwise. In civil cases, facts are to be proved on preponderance of evidence
adduced by the parties. The enabling provisions of the Order of 1984 casting the onus of proof
upon a party would only become relevant when ago evidence worth its while is produced by
the plaintiff or when the Court is unable to decide the issue, as the evidence on the record is
so evenly balanced.
20. On combing through the evidence on the record, it is noted that Taj Wali Shah was able
to establish the link between Salah-ud-Din and his family and the disputed house through the
testimony of two PESCO representatives, who were independent witnesses. It was proved that
the electric supply meter in the disputed house was installed in the name of Siraj-ud-Din and
that there was also a disconnection order thereof (Exp PW3/1). In addition, the rent deed (Ex
PW6/l) was also produced in evidence without protest of Baktai Zaman. In contrast, apart from
peaceful possession, Bakhti Zaman was unable to produce any reliable evidence that linked
him to the disputed house; the claimed legacy and the gas, and electric meters of the disputed
house under his uncle's name were not proved through any reliable evidence.
21. In view of the above, the preponderance of evidence surely tilted in favour of Taj Wali
Shah, as he was able to discharge the onus to the extent that he had stepped into the shoes of
the original owners. However, to what extent, it is noted that his status as a sole owner of the
disputed house was not proved. It is noted that the sale deed, despite its admission in evidence
without protest of Bakhti Zaman, was not executed by all the co-owners of the disputed house
and, there was no valid power of attorney produced in evidence, vesting in Salah-ud-Din or
Siraj-ud-Din the executants thereof, to transfer the same. Thus, the sale deed could not be
considered a valid instrument, transferring to Taj Wali Shah, the proprietary rights of all the
owners of the disputed house; the siblings and mother of Salah-ud-Din. However, the very fact
that Salah-ud-Din appeared in the witness box (PW6), and testified to have sold the entire
disputed house to Taj Wali Shah cannot be taken lightly. His testimony would legally suffice
to transfer his share in the disputed house to Taj Wali Shah, thereby making Taj Wali Shah a
co-sharer of the disputed house.
22. As far as the contention of the worthy counsel of the respondent regarding Bakhti
Zaman's peaceful entry into the disputed house and his continuous possession thereof, it is
noted that the same cannot be ignored. However, when the peaceful possession of Bakhti
Zaman is placed in juxtaposition to rights of a co-owner, Taj Wali Shah, the latter would surely
prevail. We have the well recognized legal maxims: possessio contra omnes valet praeter eur
cui ius sit possessionis (he that hath possession hath right against all but him that hath the very
right); adversus extraneous vitiose possessio prodesse solet (prior possession is a good title of
ownership against all who cannot show a better), which has been very precisely described in
Pollock and Wright on Possession, in terms that:
"possession in law is a substantive right or interest which exists and has legal instance and
advantages apart from the true owner's title".
23. The above legal position has been well recognized not only in the Common Law, but
also in the law as it has developed in the sub continent. In fact, the Privy Council more than a
century ago in Perry v. Clissold ([1907] AC 73) maintained the said stance, which has since
then been reaffirmed by our courts. The view then expressed by the Privy Council was in terms
that:
"It cannot be disputed that a person in possession of land in the assumed character of owner
and exercising peaceably by ordinary rights of ownership has a perfectly good title
against all the world but the rightful owner."
24. The above principle has now crystallised and, it is legally settled that the person in
possession of an immovable property acquires a vested right to possession, which cannot be
taken away unless the challenge is made thereto by a person who shows prior or better title
through transfer or inheritance. One has to be mindful that this right is subject to legislation,
as is witnessed in Abadi Deh in the Province of Punjab under Punjab Conferment of Proprietary
Rights on Non-Proprietors in Abadi Deh Act, 1995. We have been informed that no such
legislation has been introduced in Khyber Pakhtunkhwa rendering protection to possessory
rights in Abadi Deh. Accordingly, the rights of Taj Wali Shah, as a co-owner would prevail
over that of Bakhti Zaman, as a possessor.
 25. Now that we have settled that the rights of a co-owner of an undivided property in Abadi
Deh would prevail over the rights of a mere possessor thereof, let us now address the next
crucial issue: whether a co-owner could seek possession of the entire property against a
possessor under section 8 of the Act of 1877. This issue has been dealt in Bashir Ahmad and
others v. Parshotam and others (AIR 1929 Oudh 337) wherein it has been held as follow:
"I must again point out a well settled rule of law, which has been laid down in numerous
cases both by their Lordships of the Privy Council as well as by this court and the other
High Court in India. The rule is that if a property belongs to several co-sharers and one
co-sharer is in possession of the entire property, his possession cannot be deemed to be
adverse to other co-sharers. He must be deemed to be in possession on behalf of other
co-sharers and adverse possession cannot be founded on the basis of such exclusive
possession, unless there has been an ouster of the other co-sharers. The ouster takes
place when the title of the other co-sharers is denied...
...It is a settled rule of law that one co-sharer can maintain a suit for ejectment in respect of
the entire property against a trespasser. The mere act that a co-sharer brings such a suit
can, therefore, be no evidence that he denied the title of the other co-sharer. It is a
question arising out his exclusive possession, but cannot be no evidence of a denial of
the title of the other co-sharers. The suit brought by one co-sharer would in the eyes of
law be considered for the benefit of the other co-sharers and the latter would be entitled
to take advantage of such proceedings."
26. A similar matter later came up before Andhra Pradesh High Court in the case reported
as Kanchi Kamamma and others v. Yerramsetti Appanna (AIR 1973 Andhra Pradesh 201),
wherein it has been held as under:
"The mere fact that the alienation is not valid to the extent of half share does not take away
this right of the purchaser. He can very well maintain the suit for recovery of possession
of the entire property as against every person other than the true owner."
27. The views rendered in the above cases appear to be the correct pronouncement of the
law on rights of a co-owner to seek possession of the undivided property: the right of a co-
owner to seek possession of the entire undivided property; the possession of the co-owner
would be considered to be on behalf of all the co-owners; the said suit of the co-sharer cannot
be considered as evidence of his denial of the title of the other co-sharers; the suit brought by
said co-sharer would be deemed to be for the benefit of the other co-sharers; and that the co-
sharer's possession in consequence of the proceedings under section 8 of the Act of 1877
cannot be deemed as adverse to the other co-sharers.
28. In conclusion, it would be appropriate to recapitulate the important issues discussed and
decided herein above. The same are that:
i. Section 8 of the Act of 1877 provides for any person who is 'entitled' to possession of
immovable property to seek the same before the Civil Court of competent jurisdiction
under section 9 of the Code of Civil Procedure, 1908, (C.P.C.), unless the jurisdiction
thereof is impliedly or expressly barred by law.
ii. By employing the word 'entitled' in section 8 of the Act of 1877, the legislature has
expanded the scope for those who may seek possession of immovable property under
the said section. This right is not only restricted to owners, but to all who are entitled
to possession under the law.
iii. In a suit under section 8 of the Act of 1877, there is an inbuilt prayer for the declaration
for entitlement to possession being sought by the plaintiff. In such circumstances, a
prior declaration for the said entitlement under section 42 supra cannot be made a
condition precedent for filing a suit for possession under section 8 of the Act of 1877.
iv. In a suit for possession, as owner of the disputed house, which was in the possession of
defendant, the onus to prove the title of the disputed house rests upon the plaintiff under
the mandate of Articles 117, 118, 119 and most importantly 126 of the Order of 1984.
v. When a co-owner of the disputed property seeks possession from another co-owner, who
is in peaceful possession of the disputed undivided property, the remedy is to seek
possession through partition, and not by a suit under section 8 of the Act of 1877.
 vi. the person in possession of an immovable property acquires a vested right to possession,
which cannot be taken away unless the challenge is made thereto by a person who shows
prior or better title through transfer or inheritance.
vii. the transfer of proprietary rights in abadi deh are not recorded under section 42 of the
West Pakistan Land Revenue Act, 1967, as the said area has been, under section 3 supra,
expressly excluded from the applicability thereof.
viii. In an undivided immovable property one of the co-sharers can maintain a suit for
ejectment of a possessor in respect of the entire property and in such a case the
following may ensue:
firstly, the said suit of the co-sharer cannot be considered as evidence of his-denial of the
title of the other co-sharers;
secondly, that the suit brought by said co-sharer would be deemed to be for the benefit of
the other co-sharers; and
thirdly, when the said co-sharer acquires possession in consequence of the said proceedings,
he would be in possession of the entire property, on behalf of all co-sharers and his
said possession cannot be deemed as adverse to the other co-sharers.
29. Accordingly, for the reasons stated above, the impugned judgment of the High Court
dated 19.02.201 5 is set aside, and the decree passed in favour of Taj Wali Shah passed by the
Appellate Court is affirmed with the modification to the extent that the word "owner" be
substituted with "entitled to possession as a co-owner of the disputed house".
30. The present appeal is allowed, in the above terms, with no orders as to costs.
MWA/T-4/SC Appeal allowed.