The PROVINCIAL GOVERNMENT through Secretary, Board of Revenue, Khyber Pakhtunkhwa vs Malik QASIM KHAN Ss

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The PROVINCIAL GOVERNMENT through Secretary, Board of Revenue, Khyber Pakhtunkhwa VS Malik QASIM KHAN Ss. (2)(h) & 3---Specific Relief act (I of 1877), Ss. 42 & 54---Co-sharer---Possession over excess land---Removal of encroachment---Provincial Government issued notice to respondents/plaintiffs for removal of encroachment on government land---Suit filed by respondents/plaintiffs was decreed in their favour and the notice was set aside---Validity---Provincial Government despite being owner of 441 Kanal 9 Marla land was not in possession---Suit land was joint property in record and no official partition had taken place by meets and bounds---Co-owner in possession of an excess area than his entitlement could not be evicted except in due course of law---Possession of one co-owner/co-sharer was considered to be possession of all co-sharers---Only course that could be adopted to oust co-sharer from excess area in his possession was to seek partition of land---Though respondents/plaintiffs were in possession of land in excess of their entitlement but they were not illegal occupants within the meaning of S. 2(h) of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) act, 1977---Such co-owner could not be served with notice under S. 3 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) act, 1977---Respondents/plaintiffs were holding suit property not as encroachers but as co-owners/co-sharers and they could only be evicted from suit property/excess land by approaching competent forum for partition---Trial Court had rightly set aside notice under S. 3 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) act, 1977 as the same was illegal and void ab-initio---High Court declined to interfere in judgment and decree passed by Trial Court as Provincial Government failed to point out any illegality, irregularity, misreading or non-reading of evidence---Constitutional petition was dismissed in circumstances.

The PROVINCIAL GOVERNMENT through Secretary, Board of Revenue, Khyber Pakhtunkhwa vs Malik QASIM KHAN Ss — 2025 PLD 227 PESHAWAR-HIGH-COURT

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