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Civil Petition for Special Leave to Appeal No. 43‑R of 1980, decided on 7th April, 1980.

(Appeal against the judgment and order of the Peshawar High Court, Peshawar, dated 26‑I1‑1979 passed in C. R. No. 39 of 1978).

----Art. 185 (3)‑‑Dispossession‑Petitioner co‑shares in suit land found to have dispossessed respondent otherwise than in due course of law -Three concurrent findings recorded against petitioner directing him to surrender possession to respondent, held, unexceptionable in circum stances‑Petition dismissed.

Qazi Abdur Rashid, Advocate and M. Yaqub Hussain Zaidi, Advocate- on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 7th April, 1980.

‑The dispute in this case concerns agricultural land comprised in Khasra No. 2900 measuring 3 kanals and 1 marls, situate in Tehsil and District Mansehra. Respondent Gohar Aman filed a suit against the petitioner in the Court of Civil Judge, Mansehra, for the possession of the suit land, as according to him he had been dispossessed of it otherwise, then in due course of law.

In the written statement filed by him, the petitioner denied the claim of the respondent on the ground that being a co‑sharer in the said land he was, in possession of the same and so the suit filed against him was miscon ceived.

Upon the pleadings of the parties, the trial Court framed in the suit six issues the reproduction of which, however, is not necessary, and after record ing the evidence of the parties, which they wished to adduce before him, he decreed the suit of the respondents. The view taken b; she learned trial Judge was that "The suit land is comprised in Khasra No. 2900 and is jointly owned by the parties vide record‑of‑right for year 1965‑66, marked as Exh. P. W. 1/1, in which in column of cultivation, plaintiff has been shown as in exclusive possession, through defendant No. 4 tenant‑at‑will. In addi tion to it, plaintiff's possession has been proved through an extract of Kuasra Girdawari, shown as Exh. P. W. 1/3‑which shows plaintiff' possession till Rabi 1975. The possession of the defendant has been entered since Kharif 1976, vide Exh. P. W. 1/4 to meaning thereby that by dispossessing plaintiff, Muhammad Aslam, defendant took the possession of the suit land. Possession of the plaintiff has been proved by the revenue record and evidence produced by the parties, viz. he was admittedly in possession of the suit land till he was ousted by the defendant against his consent and without the intervention of a Court of law. No doubt evidence in proving title is equal on the record because plaintiff and defendant No. 1 are co‑sharer with equal rights over the suit land but plaintiff succeeded in proving his possession and defendant No. 1 could not prove his possession.

The learned District Judge, as well as the High Court in the revision application filed before it by the petitioner, have affirmed the said finding recorded by the trial Judge, and hence this petition for leave to appeal.

In seeking leave to appeal against the judgment of the High Court, Qazi Abdur Rashid, the learned counsel for the petitioner contended that in the Misle‑Haqiat relating to the suit land, the petitioner had been shown to be a co‑owner, as well as in possession since the year 1946‑47, therefore, the Courts below, as well as the High Court were in error to decree the suit of the respondent. He conceded, however, that this ground had not been taken by him in the revision application filed in the High Court. The fact that he has not filed the grounds of appeal filed by him in the Court of the District Judge would go to show that the said contention urged by him is an afterthought, which cannot be entertained at this stage of the proceedings.

The learned counsel next contended that in accordance with the jamabandis for the year s 1954‑55, 1958‑59 and 1961‑62, the petitioner was shown to be in possession of the suit land. But he again conceded that these documents were produced by him for the first time in the High Court, which however, refused to accept them on the record of the case. In this view of the matter, the said contention urged by him also has no force in it.

By going through the judgments of the Courts below, as well as the High Court, we are satisfied that although the petitioner was no doubt a co‑share in the suit land, but he was found to have dispossessed the respondent of it otherwise, than in due course of law. In these circumstances, the three concurrent findings recorded against him that he must surrender the possession to the respondent is evidently unexceptionable.

This petition, therefore, fails and is dismissed.

Petition dismissed.

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