1971 PLP 198 (SCMR)

WAHIDUDDIN AHMAD, J.‑‑The dispute in this case is about a godown which is situated on Water Works Road, Multan City. It belonged to one Miran Khan. On his death, it was inherited by Muhammad Nawaz, Allah Dad Khan and Rab Nawaz his three sons and Mst. Ghulam Aisha his daughter. Mst. Aisha sold her share in favour of Sh. Abdul Latif respondent No. 1 by a registered sale deed on the 31st August 1955, for a sum of Rs. 15,

000. The godown was in possession of Muhammad Bashir, a tenant. Muhammad Nawaz, Allah Dad Khan and Rab Nawaz filed an ejectment application under section 13 of the West Pakistan Urban Rent, Control Ordinance for his ejectment. The Rent Controller, Multan, passed an order of his eviction on the ground of subletting and default. Sh. Abdul Latif respondent No. 1 filed a suit for partition against the petitioners and moved an application under section 39, rules 1 and 2, C. P. C. restraining the petitioners from executing the decree against Muhammad Rafiq who was his brother and was in occupation of the godown as his tenant. The learned Civil Judge, by his order dated the 1st May 1969, dismissed the application on the ground that Muhammad Rafiq is only a sub tenant of Muhammad Bashir and is equally bound by the order of the Rent Controller. He further held that Muhammad Rafiq is the brother of Sh. Abdul Latif and there is no proof of any tenancy between Sh. Abdul Latif and Muhammad Rafiq. The matter was taken in appeal to the District Judge who upheld the view of the Civil Judge by order dated the 3rd September 1968. Respondent No. 1 Sh. Abdul Latif challenged these orders in Civil Revision No. 610 of 1968. A learned Single Judge of the High Court, by order, dated the 1st April 1970, set aside the order of the Courts below on the ground that they had failed to exercise the jurisdiction vested in them in accordance with law. This order is being‑challenged in this petition for special leave to appeal. In support of the petition, Sh. Muhammad Shafi, learned counsel for the petitioner, has contended that there is a concurrent finding of fact by the Civil Judge and the District Judge that Muhammad Rafiq is not the tenant of Sh. Abdul Latif respondent No. 1 and, therefore, the learned Single Judge was wrong in holding that Sh'. Abdul Latif was in possession of the godown in dispute. It is not disputed that Muhammad Rafiq is the brother of Sh. Abdul Latif and, therefore, the allegation that he was the tenant of Sh. Abdul Latif cannot be said to be a far fetched view. The learned counsel further contended that the High Court could not issue an injunction against the petitioners restraining them from executing the decree. After hearing the learned counsel for the petitioners, we are satisfied that the High Court was perfectly justified in holding prima facie that Sh. Abdul Latif was in possession of the property in dispute through his brother Muhammad Rafiq. In law, a co‑sharer in possession of a joint property cannot be evicted without filing a suit for partition. In these circumstances, the High Court was perfectly justified in observing that the Courts below have failed to exercise the discretion vested in them. The contention of the learned counsel that the High Court could not issue an injunction against the petitioners restraining them from evicting Mohammad Rafiq from the property in dispute has also no force. The High Court had not stayed the proceedings or issued an injunction restraining the petitioners from continu ing with their suit. It has only restrained the petitioners from executing their decree against Muhammad Rafiq. This is a quite valid order. The petition is dismissed. Leave refused.