2009 PLP 92 (CLC)

SYED YAHYA ZAHID GILLANI, J.

The petitioners and respondents are co-sharers in the suit-land measuring 19 Kanals, 13 Marlas. Since the respondents-defendants were allegedly constructing shops on a valuable portion of the aforesaid agricultural land, therefore, the petitioners-plaintiffs instituted a suit for permanent injunction to restrain them from altering the nature of the suit-land till its official partition. The suit along with an application for temporary injunction was contested by the respondents-defendants. However, both the learned trial and Appellate Courts refused to grant temporary injunction to the petitioners-plaintiffs in view of the undertaking given by the respondents-defendants that the construction may be considered at their own risk and cost. Hence this revision petition.

2. The learned counsel for the petitioner argued that the suit-land is joint property. It is an agricultural land: Changing its nature by constructing commercial shops is an endeavour of the respondents-defendants to perpetuate their possession on a more valuable part of the suit-land, depriving the petitioners-plaintiffs. He added that the undertaking has been given much importance by the lower Courts but in this regard the petitioners-plaintiffs have been condemned unheard because not only the undertaking was submitted on 23-4-2008 after hearing arguments on application in the trial Court, but it is also incomplete, defective and unreliable. Moreover, the plea of construction at personal risk and cost was not raised by the respondents-defendants in their written reply to the application for temporary injunction. It is an afterthought to deceive the Court. Hence, the impugned orders are not in accordance with law.

3. Conversely, the learned counsel for the respondents-defendants argued that the construction on land is already complete and the superior Courts have accommodated such situation when it is undertaken that the concerned party would not claim compensation, if the land under construction falls in the share of opposite party.

4. I have gone through the record and adverted over the respective arguments of the learned counsel for the parties. As a short point of law is involved and the learned counsel for the parties have been thoroughly heard, therefore, I admit the revision petition for full hearing and proceed to decide the same on merits.

5. It is pertinent to mention that the respondents-defendants have specifically stated in paras.2 and 3 of their written statement dated 24-11-2007 that they are absolute owners in possession of the suit-land and that there is no question of its partition, but, at the same time, their suit for partition in the Revenue Court bearing No.18/9 instituted on 1-4-2006 was pending. Prima facie, it raises question about the intention of the respondents-defendants to perpetuate their possession on a valuable portion of joint land by constructing shops which apparently has commercial potential too.

6. It is also noticed that both the lower Courts have much emphasized on the undertaking given by Muhammad Yaqoob respondents-defendant that he would not claim compensation, if the land under the shops falls during partition in the share of petitioners-plaintiffs. On this undertaking, the objection of the petitioners-plaintiffs is that it was submitted in the trial Court on 23-4-2008 after the submission of arguments on the application for temporary injunction and, as such, the petitioners-plaintiffs could not avail the opportunity to rebut the same hence they were condemned unheard.

7. A glance over written reply of the respondents-defendants to the application for temporary injunction would reveal that it is nowhere mentioned therein that the respondents-defendants are raising construction at their own risk and cost and the same is completely silent on the point, rather, their absolute ownership leaves no room for partition. A cursory scrutiny of the undertaking submitted in the trial Court on 23-4-2008 reveals that it has been submitted in haste and has not been properly drafted/executed. It is mentioned in its heading that it is an agreement deed but the second party has not been mentioned therein which is essential for an agreement. The document has not been dated by the scribe at all. There is no attesting witness of the document. Although it has been treated as an affidavit, but neither its form is of an affidavit nor it has been duly attested as an affidavit. The question is whether such an incomplete document can be relied upon to allow the respondent-defendant Muhammad Yaqoob to carry on huge construction of forty-five shops over the joint suit-land with the expectation that he would not claim compensation thereof if the land under the shops falls during partition in the share of the petitioners-plaintiffs. The careful answer to this question is in negative because the authenticity and intention behind the document is not above board and it should not have been attached much importance as given by the lower Courts.

8. I, therefore, conclude that both the Courts below have concurrently erred in placing extraordinary reliance on the incomplete and unauthenticated affidavit for bypassing the general principle that normally "a co-sharer cannot be allowed to alter the nature of the joint land unless it is partitioned". Moreover, there being no stand in the written reply to the application for temporary injunction, when a new stance was taken to consider the construction at the risk and cost of the respondents-defendants, the petitioners-plaintiffs were entitled to the opportunity to rebut/challenge it.

9. Consequently, I accept this revision petition and set aside the impugned orders being materially irregular due to the above noted faults. The application for temporary injunction shall be deemed pending for redecision by the learned trial Court, strictly in accordance with law. C.M. No.609 of 2008 having become infructuous is dismissed accordingly. H.B.T./190/P Case remanded.