2003 PLP 999 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment, dated 6th May, 1999 passed by Lahore High Court, Lahore hereby civil revision filed by petitioners has been dismissed.

2. Precisely stating the facts of the case are that respondents instituted a suit for permanent injunction against the petitioners for restraining them to raise any construction on the land measuring 1 Kanal, 9 Marlas hearing Khasra No.1579 per entry in register of rights for the Revenue Estate of Gohadpur, Tehsil and District Sialkot on the ground that the suit-land is joint property of. plaintiffs and defendants and-as such defendants have no right to raise construction on land without getting it partitioned. The suit was contested by the petitioners asserting that the land has been privately partitioned long ago and petitioners were in its possession as full owners and not as co-sharers. It was further pleaded that petitioner No.1 has gifted suit property to petitioner No.2 who was in its actual physical possession as full owner. Learned trial Court framed issues on the divergent pleadings of the parties and after hearing both the sides held that the suit property is still joint and decreed the suit. Petitioners feeling. dissatisfied from the judgment of the Civil Court instituted an appeal which was dismissed by the learned .Additional District Judge vide judgment,. dated 30th April, 1986. Petitioners feeling aggrieved from the judgment of Appellate Court filed a civil revision before Lahore High Court, Lahore which has been dismissed by means of impugned judgment. As such instant petition has been filed.

3. Learned counsel stated that the petitioners are in possession of the property in dispute and they have raised constructions but when they tended to raise construction of shops the respondents who are admittedly joint owners of the property in dispute resisted construction of shops by filing a suit. According to him though there are concurrent findings of fact but despite of that point involved in instant case is that when the construction raised by co-owners on the land does not waste or impair the utility of the land and co-sharers can also enjoy usufruct they cannot resist constructions. In support of his contentions he relied upon the judgment passed by this Court in the case Afsar Khan and others v. Mst. Khanum Jan and others (1983 SCMR 273).

4. After hearing learned counsel for the petitioners firstly we are of the opinion that there are concurrent findings of facts recorded by all the Courts below. Secondly in the judgment relied upon by the learned counsel it has not been declared that without the consent or permission of the co-sharers, plaintiff can raise constructions. It would be appropriate to reproduce the relevant observations from the judgment for sake of convenience:

"The judgment raised upon by the learned counsel relates to the maintenance on the status quo during the pendency of litigation and is therefore, not directly `relevant where the suit has been finally decided. However, there can be no cavil with the proposition that ordinarily a co-sharer cannot be permitted to alter the nature of the property and to put it to a different use from the one for which it is intended. But we have noticed that in the present case the High Court has taken care to protect the interest of the petitioners by stipulating that if the portion of land in the possession of the opposite-party does not fall to their share then they will not claim any compensation for the construction raised by them. We also noticed that the land is at present being used for agriculture land, its value is likely to be enhanced if it becomes a building site. On this ground as well the order passed by the High Court is not likely to cause any prejudice to the present petitioners. In the circumstances we see no reason to interfere with the same."

5. In view of above observation we are of the considered opinion that as in instant case no construction of shops has been raised nor the learned High Court had made observation in favour of the petitioners, therefore the judgment, being distinguishable on facts, is of no help to him because, we are of the opinion that petitioners instead of raising construction on the property which is admittedly owned by respondents, should have first of all got it partitioned and then they may have constructed shops on the portion of land fallen in their share. Thus in view of above observations petition being without force is dismissed and leave declined. M.H./F-70/S Petition dismissed.