1980 PLP 366 (SCMR)

Nemo for Respondent Date of hearing : 11th December, 1979 ANWARUL HAQ, C. J.‑ Petitioner Malik Manzoor Hussain is aggrieved by the refusal of the Courts below to grant him interim relief during the pendency of a suit instituted by him against the respondents, praying for a permanent injunction for restraining them from constructing shops and buildings over the joint plot of land bearing Khasras Nos. 820 and 821 and situate in village Ojhri Kalan Faizabad, Rawalpindi. The petitioner claimed that he had purchased 10 Marlas of land out of the joint holding on the 28th of April, 1979, and as there had been no partition between him and the other co‑sharers, including respondents 1 to 9, they could not raise construction on any portion of the joint holding. The suit was resisted on the ground that the disputed land was not an open plot but a constructed site with a bungalow and other structure thereon, and that the petitioner‑plaintiff fully knew the position on the ground when he purchased 10 marlas out of this joint holding. An ad interim injunction was granted by the trial Court to the petitioner, but the same was vacated on the 6th of June, 1979. His appeal was dismissed by the District Court on the 4th of July, 1979, and his revision petition has been dismissed on the 10th of July, 1979. Relying on the authority of Kishori Lal and others v. Khair Din and others (A I R 1937 Lah. 288), it is submitted by Mr. M. A. Siddiqi, appearing for the petitioner, that the respondents were not entitled in law to put up struc tures on the joint holding without first applying for a partition thereof, and accordingly, the petitioner had a prima facie case for the grant of an interim injunction during the pendency of his suit, but unfortunately the Courts below had failed to appreciate this aspect of the matter. He further submits that in case the construction is completed, it will create complica tions, and, therefore, the balance of convenience also lay in his favour. There is no merit in these submissions, for the reason that on the material placed before the trial Court, it became evident that a bungalow had already been constructed on this plot by one Colonel Ghulam Muhammad in the year 197374, and the predecessor‑in‑interest of respondents Nos. 1 to 9 had purchased the property in question. It was fur ther held that even‑the on‑going construction was nearing completion, and therefore, the balance of convenience lay in favour of the opposite‑party, and ad interim injunction stopping the construction at this stage would cause them irreparable harm. The learned counsel appearing for the petitioner has not been able to satisfy us that these findings are in any manner arbitrary or capricious. To us they appear to be fully justified on the record. As a result, the petition fails and is hereby dismissed. Petition dismissed.