Mst. Resham Bibi and others vs. Lal Din and others (1999 SCMR 2325)

A common trend seen in Pakistan is that parties oftentimes do not seek partition of jointly owned land. Such joint ownership is usually the result of either inherited immovable property or the purchase of an undivided share of immovable property. Such property is usually possessed by various co-owners without seeking partition due to inter alia avoidance of paying hefty registration and stamp duty fees for seeking partition. Each co-owner, however, as per established law, is an owner in each and every inch of the jointly owned property. This is not to say that co-sharers in exclusive possession of certain joint property are unprotected. It is settled principle of law that if a co-sharer has been in exclusive possession of a certain portion of joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property. Where such co-owner is, however, unlawfully dispossessed of such exclusive ownership, the dispossessed co-owner has two remedies: (i) file a suit for possession under section 9 of the Specific Relief Act; and (ii) seek partition of the immovable property. In relation to (i), however, it is critical to note that to regain possession of the subject property the co-owner is to file a suit under section 9 of the Specific Relief Act within six months of the dispossession as prescribed under Article 3 of the Limitation Act 1908. Oftentimes lawyers due to a lack of understanding of the applicable law file an ordinary suit for possession under applicable provisions of the Code of Civil Procedure. Such a suit, however, may not be filed by a co-owner against co-owners.

The Supreme Court elaborates on the remedies available to a co-owner dispossessed of undivided/unpartitioned land which was previously in their exclusive possession in Mst. Resham Bibi and others vs. Lal Din and others (1999 SCMR 2325). The dispossessed party in this case filed an ordinary civil suit for possession of immovable property which was held by the Supreme Court to be incapable of being filed against a co-owner on the ground that allowing such a suit would amount to placing one set of co-sharers in a much more advantageous position as compared to the others. In such a case, for possession, filing a suit under section 9 of the Specific Relief Act was held to only be capable of being filed as a suit under this section may be filed regardless of the title of the subject property. I have prepared a concise case brief consisting of the facts, issues and holdings of the Supreme Court.

#propertylaw #suitforpossession #specificreliefact #supremecourtofpakistan #exclusivepossession

Mst. Resham Bibi and others vs. Lal Din and others (1999 SCMR 2325)

Facts:

The Appellants and Respondents were co-owners of immovable property. The Appellants claimed to be in exclusive possession of 1 Kanal of land comprising Khasra No. 935 since the year 1966. The Appellants were forcibly dispossessed by Respondents from the land in their possession on 08.04.1971.

Procedural History:

Upon dispossession the Appellants instituted a civil suit on for possession of the 1 Kanal land under section 8 of the Specific Relief Act 1877 (“SRA”). The suit for possession was decreed in favour of the Appellants by the local commissioner. Consequently, an appeal was filed by the Respondents, which was dismissed, after which civil revision was filed before Lahore High Court. The revision petition succeeded on the ground that where a co-sharer has been dispossessed, he only has two remedies open to him: (i) file a suit under section 9 of the SRA; and (ii) to seek partition of the joint property. It was held that besides these two remedies, recourse to an ordinary civil suit for restoration of exclusive possession under section 8 of the SRA would amount to placing one set of co-sharers in a more advantageous position as compared to the others.

Issue: Whether a co-sharer may not claim relief under section 8 of the SRA, and that he may only have recourse to: (i) a partition of the property; and (ii) suit for possession under section 9 of the SRA?

Held: Upon the dispossession of the Appellants they only had two remedies: (i) suit under section 9 of the SRA; and (ii) proceedings for partition of joint property. To hold that the Appellants could have recourse to an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the others.

Rule of Law

·??????Section 8 of SRA: A person entitled to the possession of specific immoveable property may recover it in the manner prescribed by the Code of Civil Procedure.

·??????Section 9 of SRA: If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.

Application/Reasoning:

·??????If a co-sharer has been in exclusive possession of a certain portion of joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bring a suit for partition of the joint property.

·??????As per section 8 of the SRA, if a person desires to obtain possession of immovable property on the basis of title, he can bring a suit for ejectment under the Code of Civil Procedure. Such suit may be filed within twelve years of the occupation of the immovable property by a person without title (See article 142 of the First Schedule of the Limitation Act 1908). Such suit, however, cannot succeed unless the person seeking relief demonstrates that he has title to the property and that the defendant had no such title. This is clearly not the case in of joint ownership as both all co-owners have title to the subject property (explained below).

·??????As per section 9, if a person seeks restoration of possession under it, he need not worry about his own title or that of the defendant, but simply show that he was in actual possession of the property within six months of the filing of the suit (See Article 3 of the First Schedule of the Limitation Act 1908).

·??????Consequently, as the Appellants are co-sharers of property in dispute with the Respondents, they should have filed a suit under section 9 of the SRA. If they did so, they would have succeeded notwithstanding the fact that their title was equal but not superior to that of the Respondents.

·??????The Appellants, however, brought an ordinary suit which cannot succeed because their title was not better than that of the Respondents. It is settled principle of law that a co-sharer in possession of specific portion of a joint property cannot be ousted till the joint property is partitioned. At present, the Respondents are somehow in possession of the property in dispute and thus their possession is protected.

·??????In the case before us, the evidence on record does not show that the title of the Appellants in respect of the disputed land was superior to that of the Respondents. Mere fact that the Appellants remained in exclusive possession of the disputed land for a long time would not make any difference, as the admitted position in the case is that both Appellants and the Respondents were joint owners.

This case brief has been prepared for informational purposes only and does not constitute legal or professional advice and is not intended to and does not create or constitute an attorney-client relationship between the reader and the author.

The information provided herein may not be republished, sold, relied on, or be used, in any form, without the written consent of the author.