1991 PLP 708 (CLC)

Fazal etc. v. Manzoor Hussain etc. P L D 1979 Note at p.6; Feroze v. Sher and others P L D 1958 SC 245; Saad Ullah v. Ibrahim'A I R 1925 Lah. 518 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 SC 9 ref. (b) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑ Ss.42 & 54 ‑‑‑ Civil Procedure Code (V of 1908), S.115 ‑‑‑ Discretionary relief, grant of ‑‑‑ Relief under Ss.42 & 54, Specific Relief Act 1877 and under S.115, Civil Procedure Code, 1908, being discretionary in nature, no justification was made out for exercise of same in aid of plaintiff ‑‑‑ Revision dismissed in circumstances. Ch. Mushtaq Ahmad Khan for Petitioner Ghulam Nabi, petitioner, riled a suit for declaration to the effect that the gift deed of land in suit dated 2‑11‑1986 executed by Allah Ditta respondent/defendant in favour of Muhammad Rafiq, predeccssor‑in‑interest of respondent Mst. Fatima Bibi and Mst. Kubra Bibi, was/is illegal, void and ineffective against his rights, in the Court of Senior Civil Judge, Sialkot. As a consequential relief, it was prayed that the respondents be restrained from interfering with his possession over the disputed land. The suit was resisted. 12 issues were framed. The parties led their evidence. The learned trial Court dismissed the suit on 24‑9‑1988. The appeal riled by the petitioner against this judgment/decree was dismissed by the learned Additional District Judge, Sialkot, on 26‑6‑1990, hence this revision.

2. Learned counsel for the petitioner contended that after holding that the petitioner was a co‑sharer in possession of the suit land, the learned trial Court should, at least, have granted a decree of permanent injunction restraining the respondents from interfering with the petitioner's possession of the suit land. Reliance has been placed on (P L D 1.979 Note at p.6) Fazal etc. v. Manzoor Hussain etc .(P L D 1958 SC 254) Feroz v. Sher and others (AIR 1925 Lab. 518) Saad Ullah v. Ibrahim and (P L.D 1959 SC 9) Muhammad Muzaffar Khan v. Muhammad Yusuf Khan.

2. I have considered the submissions made by the learned counsel with care. From the trend of his arguments it is very much clear that he has not challenged the finding of the Courts below with regard the declaration sought in the suit. Now the crucial question for consideration is as to whether or not in a suit for declaration under section 42 of the Specific Relief Act permanent injunction which has been prayed as a consequential relief can be granted independent of the declaratory decree. I feel, if there is no declaratory decree then the question flowing consequences therefrom does not arise, so it is not possible under the Law to grant consequential relief after dismissing the main relief of declaration. The respondents being co‑owners in the disputed land are presumed to be owner in possession of each inch of the land so it will not be proper to restrains them from entering into it or interfering with the physical possession of another co‑owner. If the prayer of the petitioner is allowed, then this would tantamount to allowing/authorising one of the co‑sharers to take forcibly possession of any valuable portion of the joint property/land and then file a suit for Permanent injunction restraining the other co‑owners from interfering with his possession. This will also frustrate the law relating to the partition of the joint property. Furthermore, the relief under sections 42 and 54 of the Specific Relief Act and under section 11.5 of C.‑P.C. are discretionary in nature. In the circumstance of the present case I do not see any justification to exercise discretionary powers of this Court in aid of the petitioners. The case‑law cited by the learned counsel is not applicable to the facts and circumstance of this case.

3. Pursuant to the above discussion, the revision application fails and is accordingly dismissed in limine. AA./G‑401/L. Revision dismissed