2012 PLP 1618 (CLC)

SYED SAJJAD HASSAN SHAH, J.

Petitioner through the instant Civil Revision has questioned the judgment and decree dated 30-6-2010 of the learned Additional District Judge, Peshawar, whereby he dismissed the appeal filed by him and upheld the judgment and decree dated 6-4-2010 of the learned Civil Judge, Peshawar.

2. Briefly summarized facts of the case are that the petitioner instituted a suit for permanent injunction against the respondents in the Court of the learned Civil Judge alleging therein that she is owner in possession of the land measuring 8 Kanals, 10 marlas fully explained in the heading of the plaint with a prayer that the respondents being stranger be restrained not to claim the disputed land as their ownership. The suit after contest was dismissed by the learned trial Court and the appeal thereagainst also met the same fate having been dismissed by the learned appellate Court, hence this revision petition.

3. Learned counsel appearing on behalf of the petitioner contended that where the learned Courts below dismissed the suit of the petitioner without seeing the documents and without verifying the claim, thus set up in the light of the relevant record, such decree cannot be sustained under any canons of law and propriety. He next contended that the Courts below have failed to properly apply judicial mind because blind and uncritical acceptance of a claim without seeing its logical validity and legal viability, cannot be maintained under any circumstances. The learned counsel while criticizing the findings of the Courts below submitted that the judgments and decrees, thus, passed would be nullity in the eye of law.

4. I have gone through the available record carefully and considered the submissions of the learned counsel for the petitioner.

5. A perusal of the available record would reveal that it is an admitted fact that the suit property jointly owned and possessed by the parties when according to the revenue record, they have been recorded as co-owners in the suit property. They are legally entitled to have their propriety to transfer or alienate in any manner their rights in the suit property. This is an age old principle of law that a co-sharer in possession of the suit property even on entire suit khasra number in cultivation column would be deemed to have joined the same right and privilege to which the other co-owners are entitled. In no way he can claim that he is on better pedestal as compared to the other co-owners because all the co-owners have the right to occupy their possession till the time partition is taken place by its metes and bounds. In the case of Haji Khan Muhammad and others v. Yaqub Khan and others (PLD 1956 W.P. Peshawar 96), the Hon'ble Judge while facing the same situation observed as under:

"There is authority for the proposition that in case a co-sharer has been in possession of a portion joint land exclusively for a long period and the portion in his possession does not exceed his individual share, the other co-sharers cannot oust him therefrom or even get joint possession with him, as long as partition of the joint property does not take place."

6. There is another famous judgment rendered in the case of Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (PLD 1959 Supreme Court (Pak.) 9), the Hon'ble Judges of the Supreme Court while dealing with similar situation observed as under:

"A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers."

7. Since the judgments and decrees of both the Courts below also lends support from section 56 of the Specific Relief Act, 1877, because when there is equally and efficacious relief is available to the plaintiff, he is not entitled for the grant of decree for perpetual injunction. The relevant provision contained in section 56 of the Act reads as under:

56. Injunction when refused: An injunction cannot be granted

(a) .............................................................................. (b) .............................................................................. (c) .............................................................................. (d) .............................................................................. (e) .............................................................................. (f) .............................................................................. (g) .............................................................................. (h) .............................................................................. (i) when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust: (j) ..............................................................................

8. It is clear from the evidence on record that the respondents are co-owners in the property in dispute, no restraint can be imposed on their rights to transfer their shares. None of the parties is supposed to interfere with each other's possession, till they along with other joint -property in possession of other co-owners are partitioned by metes and bounds. In the circumstances of the case the view taken by the learned Courts below appears to be correct. The same being free from misreading or non-reading of evidence is not open to any exception.

9. For the reasons discussed above, this revision petition being without substance is dismissed along with C.M. MH/250/P Revision dismissed.