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Civil Petition for Special Leave to Appeal No. 5‑P of 1970, decided on 28th March 1970.
(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 29th September 1969, in R. S. A. No. 191/69).
-----S. 100‑Second appeal Findings with regard to a party's exclusive possession based on evidence‑Findings of fact‑Such findings given concurrently by lower Courts of facts‑ Cannot be disturbed in second appeal.
Mohammad Aman Khan, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for Petitioners.
M. Zahurul Haq, Advocate Supreme Court instructed by Nur Ahmad Khan, Advocate‑on‑Record for Respondent.
Date of hearing : 28th March 1970.
‑The petitioners Nos. 1 to 4 and 6 and Ashoor Khan, the predecessor‑in‑interest of the petitioners Nos. 5 (a) and 5 (b) were the defendants in a suit brought by Sohail Khan, the respondent herein. The suit was one for a declaration that the plaintiff as a co‑sharer is in possession of the land measuring 37 kanals and 3 marlas bearing Khasra No. 808/492 in village Kamar, Tehsil Kohat, which is part of the village shamilat and for a further declaration that the defendants have no right to interfere with the possession of the plaintiff. The plaintiff also prayed for an injunction restraining the defendants from interfering with his possession and for demolition of the structure alleged to have been erected by the defendants on a part of the land.
Both the Courts of fact arrived at a concurrent finding that the plaintiff, though a co‑sharer, has been in exclusive physical possession of the disputed land and that the defendants were completely out of possession. On this finding, the trial Court passed a decree in the suit in favour of the plaintiff, and this was affirmed on appeal. The defendants then filed a Regular Second Appeal in the Peshawar Bench of the High Court of West Pakistan, but a learned Single Judge of that Bench dismissed it in limine.
The petitioners now seek special leave to appeal against the High Court's order dismissing the Regular Second Appeal. The concurrent finding of fact with regard to possession is sought to be challenged in the petition for special leave on the ground that some part of the land is banjar and the presumption is that such land is in possession of its owners. The findings with regard to the plaintiff's exclusive possession was a concurrent finding of the Courts of fact and was based on evidence which included revenue records. Such a finding cannot be disturbed in a Second Appeal. The learned Judge of the High Court, therefore, rightly refused to interfere with the decree passed in the suit. Although the petitioners are co‑sharers, they have been out of possession. Being out of possession, they can not occupy any part of the land forcibly. Their remedy, as rightly held by the learned Judge of the High Court, lies in a suit; for partition.
There is no merit in this petition. It is, accordingly, dismissed.
Petition dismissed.
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