2013 PLP 499 (YLR)
MUMTAZ ALI — Petitioner Versus GHULAM HUSSAIN and 4 others — Respondents
| Citation | 2013 PLP 499 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Muhammad Khalid Mehmood Khan, J |
| Parties | MUMTAZ ALI — Petitioner Versus GHULAM HUSSAIN and 4 others — Respondents |
| Primary Law | Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2013 PLP 499 (YLR)?
This judgment primarily cites: Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2013 PLP 499 (YLR)?
The case was heard and decided by the Lahore bench comprising: Muhammad Khalid Mehmood Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2013 PLP 499 (YLR) (MUMTAZ ALI — Petitioner Versus GHULAM HUSSAIN and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Ikram Chaudhry for Petitioner.
- Imran Sarwar for Respondents. Nos. 1 and 2.
Headnotes / Summary
Ss. 54,55 & 56(a)
Suit for perpetual and mandatory injunction
Suit of petitioner was dismissed by Trial Court on the ground that suit for permanent injunction was not maintainable till the partition of the property, and order of Trial Court was affirmed by Appellate Court
Petitioner contended that respondents had made statements confirming that they will sell the property according to the share in their possession, and will not sell any property in excess of their share as such Trial Court should have decreed the suit as there was no need to record any further evidence
Where a specific remedy was available, suit under S.56(a) of the Specific Relief Act, 1877 was not maintainable, but in the present case, petitioner was claiming that he was in possession of the property according to his own share, and although share of petitioner was unpartitioned, he had every right to retain the possession
Grievance of petitioner being only that respondents should not eject him from the property in his possession , petitioner was entitled for the said relief when it was admitted that the petitioner and respondents were joint-owners of suit property
Trial Court had dismissed the suit without attending to such aspect of the case
Dismissal of suit by court below meant that the court had allowed the respondents to dispossess the petitioner forcibly without due process of law
High Court modified judgments of the courts below to the extent that the petitioner should not be dispossessed forcibly except in due course of law
Revision was allowed , accordingly.
Judgment & Decree
MUHAMMAD KHALID MEHMOOD KHAN, J.
The petitioner filed a suit for perpetual/mandatory injunction against the respondents claiming that respondents are co-owners with him in the suit property and they have no authority to dispossess him from the joint property. He further submits that the property is still unpartitioned and as such the respondents have no right to dispossess the petitioner being joint owner. The learned trial Court after recording the evidence and hearing the parties dismissed the suit holding that a suit for permanent injunction is not maintainable till the partition of property. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 15-3-2010.
2. Learned counsel for the petitioner submits that respondents Nos.1 and 2 have made statement on 28-4-2007 confirming that they will sell the property according to their share which is in their possession and will not sell any property in excess of their share. On 8-7-2099 respondents Nos.3 and 4 also made the same statement as was recorded by respondents Nos. 1 and 2 and as such the learned trial Court should have decreed the suit forthwith and there was no need for recording, any evidence further.
3. Learned counsel for the respon-dents supports the impugned judgment and decree and submit that petitioner has already sold his share in suit-land and his possession over property is not legal, he further submits that even if it is admitted that petitioner is share-holder in the suit property but he is not entitled to retain the possession in excess of his entitlement.
4. The argument of learned counsel has force. It is an established law that where a specific remedy is available, the suit under section 56(1) of the Specific Relief Act is not maintainable, but in the present case the petitioner was claiming that he is in possession of the property according his share. Although his share is unparti-tioned, but he has every right to retain the possession. His grievance was only that respondents should not eject him from the property in his possession and as such the petitioner was entitled for the said relief, especially when it is an admitted fact between the parties that petitioner and respondents both are joint owners of the suit property.
5. Learned trial Court has dismissed the suit without attending the said aspect of the case. The dismissal of suit means that both the courts have allowed the respondents to dispossess the petitioner forcibly without any due process of law.
6. In view of above the judgments of learned courts below are modified to the extent that the petitioner will not be dispossessed forcibly except in due course of law. With these modifications the petition is allowed. KMZ/M-185/L Order accordingly.