2021 PLP 1315 (CLC)

ABDUL HAMEED BALOCH, J.

This Civil Revision Petition is directed against the order dated 06.07.2020 passed by learned Additional Sessions Judge-IV, Quetta/Model Civil Appellate Court (appellate Court), whereby the appeal filed by the respondent No.1 against the order dated 12.03.2020 passed by learned Senior Civil Judge-III, Quetta (trial Court) on an application under Order XXXIX, Rules 1 and 2, C.P.C., in the suit for "Declaration, Mandatory and Permanent Injunction" was allowed.

2. Learned counsel for the petitioner contended that the respondent No.1 in the plaint admitted that he is only the owner of the property measuring 6402 in 40 khasras but failed to specify where the petitioner is going to raise construction. He further stated that the property in question is still unpartitioned. The petitioner is also co-sharer. The respondent No.1 failed to prove on record his entitlement and possession. The order of the appellate court is illegal, requires to be set-aside. He relied upon the following reported cases: (1991 CLC 734), (2004 YLR 487), (2018 YLR Note 8).

3. Conversely learned counsel for plaintiff/respondent No.1 stated that the plaintiff is lawful owner of the property bearing mutation No.204, Qitat 40 , measuring 6402 sq:ft, situated at Tappa Durrani-II, Tehsil and District Quetta, but the petitioner without legal entitlement and character dumped construction material over the said land. He supported the order of the appellate court and prayed for dismissal of the petition. He relied upon the cases reported in (1989 SCMR 130) (2006 YLR 828).

4. Heard the learned counsel for the parties and perused the record with their able assistance. The petitioner admitted that the suit property is still unpartitioned amongst the parties. The petitioner is co-owner/co-sharer in the property. It is settled preposition of law that each co-sharer is owner in every part of the joint property. To the extent of entitlement any co-sharer cannot be permitted to change the character of the land. The Hon'ble Supreme Court of Pakistan on the case of Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130 held as under: Therefore, it can be said without any fear of I contradiction that the parties are co-sharers in the suit property. 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.

5. The record further transpires that the mutation of the respective mouza is complete and the share of each shareholder is mutated in their names but still the same is unpartitioned between the joint owner/co-sharer. The petitioner has not disputed the ownership of respondent No.1 / plaintiff to the extent of his share. In such circumstances the alienation of the suit property could change the nature of suit, therefore any co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer. Reliance be placed on the case of Khurshid Anwar Jalil v. Muhammad Hafeez Mirza 2003 CLC 1695, wherein it has been held as under:

5. I have considered the arguments of the learned counsel for the parties and perused the record. It is well-established principle of law that three necessary ingredients i.e. prima fade case, irreparable loss and balance of convenience may co-exist in favour of the party, who wants to get the restraining order in its favour. See case of Umer Baig PLD 1970 SC

139. Every joint owner shall be deemed to be in possession of each and every inch of joint property. The survey of the case-law would council the whole issue. In the case of Kashori Lal and others v. Khair Din and others AIR 1937 Lah. 288 "co-sharer was ranted temporary injunction restraining other co-sharers from building on joint land pending suit. In appeal Court finding no necessity for temporary injunction and allowing other co-sharers to build at their own risk. It was ruled that status quo ante must be maintained, and no obligation on plaintiff co-sharer to sue for partition". Similar view has been taken by the Honourable Supreme Court in the case of Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC

9. In the case of Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 dealing with the case of .joint ownership of the property, the Supreme Court observed that "In case of joint immovable property, each co-sharer deemed to be interested in every inch of subject- matter irrespective of quantity of his interest. One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer. Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by meter and bounds". The Honourable Supreme Court followed the above-stated view consistently in the cases of Ata Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138; PLD 1988 SC 1509 and Muhammad Abid and 2 others v. Nisar Ahmad 2000 SCMR

780. The learned counsel for the petitioner hiss relied on the case of Zulfiqar and others v. Noor Muhammad and others 2002 CLC 711 to contend that the remedy of the respondents- plaintiffs was to file the suit for the partition of the joint land and the restraining order could not have been passed by the learned Additional District Judge, by accepting the appeal. This argument is not sustainable under the law. If a strong co-sharer being the adversary of poor and weak co-sharer takes possession or wants to lay hand on the more valuable part of the jointly owned property and enjoys of the same by alienating the same or changing character of the joint land, it cannot be said that a weak and poor joint owner of the property may file the suit for partition and till the suit is decided the persons who are in possession of the property may enjoy the same by alienating or changing the character or taking the possession of more valuable property and throw his adversary in the ditches Nalas or baran land by taking commercial valuable land abutting on the road side, or more fertile land. This cannot be allowed under the principle of equity and justice. In these circumstances of the case and upon the touchstone of the case-law. I am of the firm opinion that the order of the learned Civil Judge, dated 17-9-2001 through which the application under Order XXXIX, Rules 1 and 2 read with section 151; filed by the respondent, for grant of temporary injunction was illegal. All the ingredients for grant of temporary injunction i.e. prima facie case, irreparable loss and balance of convenience, are co-exist in favour of the respondents-plaintiffs. There may be multiplicity of the proceeding if the restraining order in favour of the respondents and against the petitioners restraining the defendants/petitioners from alienating the joint property in dispute, would have not been passed by the learned Additional District Judge. The order of learned Civil Judge has been rightly set aside by the learned Additional District Judge by accepting the appeal. No irregularity or illegality has been committed by the Court of Appeal by accepting he appeal through the impugned order, dated 9-4-2002. 6. the petitioner failed to point out any illegality and irregularity in the impugned order passed by the appellate court. The judgment as relied upon by the petitioner are distinguishable from the instant case. The order of the Appellate Court does not suffer from any material irregularity, warranting no interference by this Court. In view of above discussion, the petition being devoid of merits is dismissed accordingly. MQ/6/Bal. Revision dismissed.