2023 PLP 733 (MLD)

KAMRAN HAYAT MIANKHEL, J.

This revision petition is directed against the judgment and decree dated 10.12.2020, passed by the learned Additional District Judge-VII, Abbottabad, whereby the petitioners' appeal filed against the judgment and decree dated 18.03.2019 of the learned Civil Judge-IX, Abbottabad was dismissed.

2. Brief facts of the case are that petitioners/plaintiffs; filed a suit for permanent injunction and possession against the respondents fully detailed in the head note of the plaint. It was contention of the petitioners that they, and respondent No.1 are joint owners in the suit property and are in possession of their respective shares as a result of private partition. The respondent No.1/defendant No.1 appeared before the learned trial court and contested the suit by filing his written statement. who had also filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint. The learned trial court after hearing the learned counsel for parties vide judgment/order and decree dated 18.03 2019 rejected the plaint under Order VII, rule 11, C.P.C. Being aggrieved of the same the present petitioners went in appeal before the learned Additional District Judge-VII, Abbottabad, which was dismissed vide judgment and decree dated 10.12 2020, hence, this petition.

3. Arguments of learned counsel for petitioner heard and record perused.

4. Perusal of the record reflects that the present petitioners instituted a civil suit for permanent injunction and possession in respect of the property in question fully detailed in the head note of the plaint. The respondent denied the allegation of petitioners in his written statement and averred in the same that the disputed property is joint property and they are also co-sharer in the same It is clear from the available record that the parties are co-sharer in the disputed property along with other co-sharer, hence, they could not seek permanent injunction and possession against the other co-sharer, rather they should have filed a suit for partition of the suit property before proper forum.

5. It is by now settled law that no suit for declaration, permanent injunction and possession could be filed by a co-sharer against other co-sharer and only remedy is for him to ask for partition of the suit. In this regard reliance is placed on case reported as Mst. Resham Bibi and others v. Lal Din and others (1999 SCMR 2325), wherein it was held that: "We are, therefore. of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely. a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity." Further reliance is placed on cases reported as Muhammad Riaz and another v. Mumtaz Ali through, Legal Heirs and others (2006 YLR 1071 Lahore) and Zulfiqar and others v. Noor Muhammad and others (2002 CLC 711 Lahore). Learned counsel for the petitioners has failed to point out any illegality or irregularity committed by the learned lower courts while passing the impugned judgments and decrees warranting interference by this court in its revisional jurisdiction.

6. For what has been discussed above this petition being bereft of any merit, is hereby dismissed in limine. SA/20/P Revision Petition dismissed.