2002 PLP 676 (MLD)

Amjad Pervaiz Malik for Respondent. Date of hearing: 25th September, 2001 Hakim Ghulam Akbar, predecessor‑in‑interest of the respondents herein, filed a suit for perpetual and mandatory injunction. in respect of land measuring 8 Kanals, Ghair Mumkan Chhappar, stilted in the area of village Rangpur, Tehsil and District, Sialkot, against the defendants‑petitioners. It was stated in the plaint that 8 Kanals of land in the estate of Rangpur was part of Shamlaat Deh and earmarked for Ghair Mumkan Chhappar for use and benefit of inhabitants of village, The plaintiff claimed to be in possession of land as co‑sharer of the Shamlaat Deh of Rangpur. The defendants forcibly occupied one Kanal of land and raised construction over 4/5 Marals of it. A suit in representative capacity on behalf of Malkan Deh under Order 1, Rule 8, C.P.C, was earlier filed for mandatory injunction to the effect that the defendants be restrained from interfering with possession of the plaintiff over the land also for directing the defendants to remove the unauthorized construction raised on part of the suit-land. Defendants Nos. I to 5 and 7 filed joint written statement and contested the suit by pleading inter alia that the suit was not maintainable in the present form, that the plaintiffs were not in possession of the land and that the defendants had raised construction over part of the land as co‑sharers in the Shamlaat Deh and as such the injunction prayed for could not be legally awarded qua them.

2. From the divergent pleadings of the parties, the learned Civil Judge, 1st Class, Sialkot framed the following issues:‑‑ (1) Whether the suit is not maintainable in its present for ? OP (2) Whether the defendants have raised construction over the disputed land on account of being co‑sharers in it. If so, its (3) Whether the plaintiffs are in physical possession of the suit‑land If so, to what extent and effect? OPP (4) Whether the plaintiffs are entitled for mandatory injunction as prayed for? OPP (5) Relief.

3. The learned trial Court decided Issue No.1 in favour of the defendant‑petitioner and Issue No.4 against the plaintiff‑respondents and on the basis of the finding dismissed the suit of‑the respondent‑plaintiffs The appeal filed by the plaintiff‑respondents in the Court of Additional District Judge was accepted vide judgment and decree, dated 14‑5‑1990. The learned Additional District Judge, observed, that "earlier litigation between the parties ended by way of announcement of judgment dated 31‑5‑1976 (Copy Exh.P 2.) and ‑since the .earlier suit was filed on representative basis and the land in dispute was meant for general use of all the villagers and the defendants7petitioners were restrained from making any construction over it and the judgment and decree pronounced in the earlier suit was not challenged in appeal, which attained finality. The matter directly and substantially in issue stood finally decided between the parties and as such it could not be re‑heard and decided by the Court on the principle of res judicata as contemplated in section 11, C.P.C." Further, it was observed that Shamlaat land enjoying possession of it by the defendants‑petitioners is of kind of Ghair Mumkan Chhappar, the parties cannot claim exclusive use and the same can be claimed for general use and benefit of the general public. According to the learned Additional District Judge, Chhappar Ghair Mumkin was meant for public use only, therefore, he accepted the appeal on 14‑5‑1990 and set aside the judgment and decree, dated 26‑3‑1986 of Civil Judge Sialkot, whereby the suit of the respondents was dismissed.

4. The learned counsel for the petitioner argued that in spite of the fact that the petitioner was found co‑sharer in the suit property and a decree was awarded in their favour by the learned Civil Judge which has been illegally set aside by the First Appellate Court. The learned counsel, has argued that the possession of one co‑sharer cannot be disturbed by the other co‑sharer. Reliance has been placed on Muhammad Sharif and 3 others v Ghulam Hussain and another (1995 SCMR 514). Further argued that the co‑sharer can retain the possession of joint Khata till the same is partitioned. In this regard, the learned counsel has made reference to the case reported as Atta Muhammad v. Sahibzada Manzoor Ahmad and others (1992 SCMR 138).

5. Conversely, the learned counsel for the plaintiffs‑respondents has argued that the revision petition was hit by the principle of laches. According to him, no doubt at the time of filing of the revision petition time was not prescribed for filing the petition under the law but the revision petition filed beyond the period of 90 days is always considered to be hit by the principle of laches, particularly when no explanation has been offered by way of moving an application for (sic) Further argued that there is no evidence on the record that the petitioner is co‑sharer in the suit property and no documentary evidence, i.e. Revenue Record has been produced on the file by the petitioner. Finally, the learned counsel has contended that the land being Ghair Mumkan Chappar meant for public use only, the petitioner under the law could have not raised any construction over it and that the suit earlier filed in representative capacity under Order rule 8, C.P.C. in which Muhammad Yaqoob father of Muhammad Ayub defendant No. 1 was also a party, was decided on 31‑5‑1976 (Copy Exh.P.2) and that judgment has become final and the matter directly AT substantially in issue stands finally decided‑ between the parties and as such it cannot be re‑heard and decided by the Court on the principle of res judicata contemplated in section 11 C.P.C.,

6. There is no force in the argument of the learned counsel for the respondent that the revision petition is hit by the principle of laches because no period of limitation has been prescribed in law for filing the revision petition against the judgment and decree, dated 14‑5‑1990. No doubt, section 115, C.P.C. providing limitation of 90 days was amended subsequently, but this revision petition has to be taken into account under the old law. However, there is force in the contention of the learned counsel for the respondents that the judgment relating to the earlier suit dated 31‑5‑1976, copy of which is Exh.P.2, is res judicata between the parties under section 11, C.P.C. According to Exh.P.2, the land in dispute was meant for general use of all of the villagers and the petitioners were restrained from making any construction over it. This suit was filed in representative capacity under Order I, rule 8, C.P.C., after seeking permission about it. Muhammad Yaqoob, father of Muhammad Ayub, defendant No. 1 was also party to it. The above stated judgment and decree pronounced was not challenged in appeal and as such it attained finality. The matter directly and substantially in issue stands finally decided between ‑the parties, and as such it cannot be re heard and decided by the Court on the principle of res judicata under section 11, C.P.C. In the present case, even there is no proof of the fact that the petitioner is the co‑sharer on the basis of any Revenue Record, but since there is a finding of fact recorded by the first appellate Court that parties had subsisting right in Shamlaat Land, but to my mind, in respect of land under Ghair Mumkan Chhappar the parties can only claim for general use and benefit. No individual has the legal authority or title under the law, and no individual can raise construction on it. Even the judgment dated 31‑5‑1976 passed in earlier suit has not given any right to any party to raise construction over the land under Ghair Mumkan Chhappar meant for public use only. Report of the Local Commissioner Exh. D.1 shows that construction has been raised by the petitioner unauthorisedly. It is well‑settled law that the land which has been dedicated for 'Rafah‑e‑Aama'/Ghair Mumkan Chhappar for the general use and benefit of all the villagers, all the concerned individuals have to accept the same alongwith its characteristics, which cannot be extinguished merely on the ground of raising construction on it, or by its allotment or purchase. The petitioner may have, some right in the property being a co‑sharer, yet the characteristics of the same cannot be changed, which would remain as Ghair Mumkin Chhapper. This view is substantiated by the case reported as Ali Ahmad and others v. Municipal Committee, Talagang, through its Administrator, and 2 others (2001 SCMR 585), wherein their Lordships of the Hon'ble Supreme Court have held as under:‑‑ "Character and use of land in question‑‑‑Scrutiny of record indicated that from the time immemorial land in question, had been dedicated for 'Rafa‑I‑Aama' meaning thereby that the same was meant for use of general public and that allottee or purchaser, these of, whoever, he might be would have to accept the same alongwith its characteristic which could not be extinguished merely on the ground of allotment or purchase‑‑ Ownership of land in question, although vests in appellants, yet the characteristic, of the same could not be changed which would remain as Maqbuza 'Kafah‑I‑Aama'." Even if the petitioner is co‑sharer in joint immovable property, each co sharer deemed to be interested in every inch of subject‑matter irrespective of quantity of interest. One co‑sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co sharer. Co‑sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes and bounds. See case reported as Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130). The case‑law cited by the learned counsel for the petitioner (1995 SCMR 514) is pertaining to the co‑sharer who is in possession of the land as owner in his individual capacity, not co sharer in Shamlaat Deh. The judgment cited by the learned counsel for the petitioner is not regarding Ghair Mumkan Chhappar or land dedicated for 'Rafa‑I‑Aamak' meaning thereby that the same was meant for use of general public. For what has been discussed above, the judgment and decree of the Civil Judge, Sialkot dated 26‑3‑1986 was result of misreading of evidence and against the law, which has been rightly set aside by the First Appellate Court by accepting the appeal and decreeing the suit of the respondent‑plaintiffs: No illegality or irregularity has been committed by the first appellate Court in accepting the appeal of the respondents. There is also no jurisdictional error pointed out by the learned counsel for the petitioner in the judgment and decree of the First Appellate Court, dated 14‑5‑1990. Resultantly, this revision petition has no force and the same is dismissed, with costs. S.A.K./M‑832/L Petition dismissed.