1998 PLP 857 (CLC)

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1, 2 & S. 115‑‑ Co‑sharer‑‑‑Temporary injunction, grant of‑‑‑Principles‑‑‑Suit by widow for joint possession of suit land and declaration of her right to inherit same‑‑‑Trial Court granted interim injunction in favour of plaintiff directing defendants (vendees) not to cut trees and change character of suit land ‑‑‑Property in question, being joint property, was sold by other co‑sharers including share of widow (plaintiff) without her consent‑‑‑Interim injunction was maintained by Appellate Court ‑‑‑Validity‑‑‑Property in question was admittedly in joint Khata which was still not partitioned‑‑‑Plaintiff's plea that defendants be restrained from cutting trees and changing character of property until its partition, was accepted by Trial Court and said order was affirmed by Appellate Court‑‑‑Courts below had rightly granted interim injunction keeping in view three essential ingredients required for grant of temporary injunction‑‑‑Trial Court was, however, directed to conclude the case within period of one year‑‑‑Order of interim injunction was maintained in circumstances. Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710 and Muhammad Zubair v. Syed Zakir Hussain Shah and another 1996 CLC 275 ref. C.M. Latif Rawn for Petitioner, Brief facts of the instant Civil Revision are that Mst. Sahib Bibi respondent filed a suit for declaration in the joint property total land measuring 163 Kanals, 6 Marlas to the extent of 7 Kanals, 3 Marlas situated at Mauza Kandiwal Tehsil Chiniot as a widow of one Muhammad Mirza from the estate of Muhammad, the father of Muhammad Mirza, a co‑sharer in the joint Khata. She also challenged the mutation of sale in favour of respondent No.6. She also applied for interim injunction.. Learned Trial Court vide order, dated 24‑3‑1997 granted her the interim injunction. This order was assailed in the appeal and the interim injunction granted by the learned Trial Court was confirmed and against these concurrent findings the instant Civil Revision has been filed by the petitioner.

2. The grievance of the petitioner is that he is the bona fide purchaser of the land measuring 169 Kanals, 5 Marlas through registered sale‑deed No.298/1, dated 30‑4‑1996 for a consideration of Rs.25,00,000 from respondents Nos.2 to

6. At the time of sale‑deed the name of the deceased husband of the respondent Mst. Sahib Bibi was not in the revenue record but, however, her appeal was accepted by the Revenue Authorities and her right of inheritance was granted to her and thereafter, she challenged the said mutation by way of aforesaid declaration.

3. Learned counsel has contended that the issues have been framed regarding the entitlement of respondent No.

1. Respondent No. l is the widow of Muhammad Mirza deceased, who was Shia by faith and in view of the law laid down in Syed Muhammad Munir and another v. Abu Nasar, Member (Judicial), Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346) childless widow of an Asna Ashria (inheritance by Shia Law) Muslim could not inherit any portion of the land left behind her husband and that the petitioner being a bona fide purchaser of 169 Kanals, 5 Marlas for a consideration of Rs.25,00,000 cannot be deprived of the usufruct through interim injunctions to save the interest of the petitioner to the extent of 7 Kanals, 3 Marlas which are the subject‑matter of the suit filed by the respondent No.l. He has relied on Mst. Kalsoom Malik and others v. Assistant Commissioner and others (1996 SCMR 710), where it is held that the sale of land by way of co‑sharer in joint Khewat would be always subject to partition. This very judgment goes against the petitioner. He also relied on Muhammad Zubair v. Syed Zakir Hussain Shah and another (1996 CLC 275), where it is held that every co‑owner in joint property has interest in each in every inch of land and no joint owner can without first having the joint property partitioned, take hold of any specific portion or change its character. This judgment further restrains the respondent from raising any further construction on the land in question. This judgment is not helpful to the petitioner's case. He also relied on Noor Muhammad and another v. Ch. Muhammad Hussain (1978 SCMR 1), where it is held that determination of possession is to be judged from situation obtaining on date of suit.

4. I have heard the learned counsel for the petitioner and I am not convinced by the arguments advanced by him. Undoubtedly, the property in dispute is situated in the joint Khata which is still not partitioned and the respondent has requested the Court that without partitioning the land in dispute the petitioner be restrained to cut the trees and change the character of the suit property and the learned Courts below have rightly granted her the interim injunctions keeping in view the three essential ingredients of injunction. However, the learned Trial Court has ordered for the expeditious disposal of the suit. The learned Trial Court is directed to conclude this case in the interest of justice within a year of passing of this order. The Civil Revision is dismissed in limine. A.A./M‑585/L Revision dismissed