P L D 1994 Peshawar 197 (PLP)

Fida Muhammad Khan for Petitioners. S. Shabir Hussain Shah for Respondents. Date of hearing: 26th March 1994. This revision petition is directed against the order of the learned District Judge, Haripur dated 21‑6‑1992 who while upholding the order of the learned Civil Judge, Haripur dated 11‑4‑1991 dismissed the appeal of the petitioner and confirmed the temporary injunction issued in Suit No.25/1 of 1991.

2. Sanaur Rehman and other, respondents‑plaintiffs herein, brought a suit for possession through partition against Muhammad Ashraf and others, wherein Abdul Basir and others are defendants Nos. 9 to 12, petitioners herein, for 1/3rd share out of land comprising of Khasra Nos.3705/483, 3705/483/1, 3705/483/2/1, 3705/483/2/2, situated in Village Sarai Saleh, Tehsil Haripur. An application for restraining the defendants, from further alienating the suit land was also made asserting therein that as the defendants have already sold the land in excess of their share, therefore, till the decision of the suit they may be restrained to further alienate the property. The learned Civil Judge while accepting the application vide his order dated 11‑4‑1991, confirmed the injunction order. The petitioner‑defendants filed an appeal which was dismissed by the Additional District Judge Haripur, vide his order dated 21‑6‑1992. Hence the present revision petition.

3. The learned counsel for the petitioner contended that the petitioner has purchased entire Khasra number measuring 14 Kanals from Mst. Bani Begum out of the joint property of 110 Kanals 14 Marlas and as such he can alienate the property. In this regard he relied on PLD 1955 Peshawar page 26 and PLD 1985 SC page 254.

4. On the other hand learned counsel for the respondent contended that Mst. Bani Begum was owner only to the extent of 7‑1/2 Marlas in the joint property and she has sold much more than she was entitled to get from the joint `Khata'. He contended that the land in dispute is situated in `Abadi' and is a superior type of land in the joint property. He submitted that one co‑sharer cannot be permitted to dispose of the best part of the property to the disadvantage of the other co‑sharers. In this regard he relied on 1992 SCMR page 138. 4‑A. After hearing the learned counsel for the parties and going through the record of the case I am inclined to accede to the contentions of the learned counsel for the respondent. Admittedly, the land which the petitioners intend' to alienate is a part of the joint parcel about which the suit for partition has been filed. One of the co‑sharers cannot be allowed to appropriate land forming part of the joint land so as to deprive the other co‑sharers as they have an interest in every inch of the joint property. One of the co‑sharers, even if in exclusive possession of a specific field cannot be permitted to alienate/transfer the property in any manner which may change its joint character or otherwise damages the right of the other co‑owners as the property remains subject to adjustment at the time of partition. In Ali Gohar Khan v. Sher Ayaz and others' case reported in 1989 SCMR 130, the august Supreme Court of Pakistan ruled as under:‑‑ "The question now is whether a co‑sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co‑sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co‑sharer is interested in every inch of the subject‑matter irrespective of the quantity of his interest. A co -sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co‑sharers. A co‑sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant." In view of the aforesaid dictum, the plaintiff‑respondents seem to have good prima facie case and balance of convenience also lies in their favour. The orders of both the Courts made in their discretion are neither arbitrary nor a capricious, thus they do not warrant any interference by this Court in Revisional jurisdiction.

5. Resultantly, this revision petition is dismissed.

6. The trial Court, however, is directed to expeditiously decide the case preferably within 6 months from the receipt of file from this Court. A.A./1561/P Revision dismissed.