2022 PLP 2491 (YLR)

ASIM HAFEEZ, J.

Petitioner is aggrieved of judgment and decree of 03.12.2021, whereby first appellate court allowed appeal of the respondents Nos. 1 to 9 (contesting respondents) and set-aside decree dated 29.09.2021 by way of rejection of plaint of contesting respondents.2. Facts necessary for deciding instant revision are that respondents Nos.1 to 3 and respondents Nos.4 to 9 filed suits for partition against petitioners Nos. 1 and 2 and other co-sharers, which is currently pending adjudication. Petitioners Nos. 1 and 2, pendente-lite partition suits, allegedly alienated their share to petitioner No.3 - measuring 9-K and 12-M - through registered sale deed, with specific details. Contesting respondents filed suit for declaration and permanent injunction - disputing specific description of property and seeking injunction qua construction intended to change the nature of the property, to the prejudice of the co-sharers. Plaint was rejected being non-maintainable in law. Contesting respondents successfully filed appeal, decree of rejection of plaint was set-aside and matter remanded to the learned trial court. Hence this Civil Revision.

3. Learned counsel for the petitioner contends that suit, claiming declaration regarding co-owned property is not maintainable and partition suits are pending. Adds that irrespective of sale of share through registered deed with specifications, no prejudice would be caused to the co-sharers and co-owners would be bound by the decree of partition. And sale of share by co-sharer is not an illegality, as transferee would step in shoes of the transferor / co-owner. Learned counsel has referred to the judgments of cases "Muhammad Muzaffar Khan v. Muhammad Yusuf Khan" (PLD 1959 Supreme Court (Pak) 9), "Abdur Rehman v. Muhammad Siddique through L.Rs." (2006 MLD 442), "Syed Agha Hussain Shah v. Muhammad Sadiq and others" (2006 MLD 1008), "Mst. Roshan Ara Begum and 8 others v. Muhammad Banaras and another" (2016 YLR 1300), "Mst. Bibi Jan and another v. Mir Zaman and 19 others" (2003 CLC 909) and "Ashiq Hussain v. Prof. Muhammad Aslam and 9 others" (2004 MLD 1844).

4. Learned counsel was asked to show whether specific details of the property, as specified in the sale deed, were described in the written statement in partition suits, he conceded that no specific details / description was identified therein. It is evident that details provided in the sale deed manifests improvement in the case. If submissions are appreciated that notwithstanding execution of sale deed, containing specific details of land, no prejudice shall be caused to the respondents Nos.1 to 9 and sale deed would be subject to decree of partition, petitioner No.3 may volunteer statement before the court, where case was remanded.

5. The critical issue is claim of change of the nature of the property and injunction sought to stall any such attempt, in the garb of construction. Submissions that suit for declaration is not maintainable, inter se co-owners and no restriction could be imposed on the right of one of the co-sharers to sell share, are fair and appears lawful but contentions that suit for injunction was not maintainable, in view of the facts narrated in the plaint - allegation of change of nature of the property -, are misconceived and result of misconstruc-tion of law. I have examined threadbare the case-law referred and relied upon, which is not relevant to the controversy and not attracted in view of facts of the case. Question of maintainability of suit for injunction, in wake of allegation of change of nature of joint property by one of the co-sharers came up for adjudication before the august Supreme Court of Pakistan in the case of "Ali Gohar Khan v. Sher Ayaz and others" (1989 SCMR 130), relevant portion whereof is reproduced hereunder as; "The question now is whether a co-sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant."

6. Learned counsel emphasized the ratio of decision in the case of Ashiq Hussain (supra), facts whereof are different, wherein dictum was laid in the context whereof co-owners seek injunction to restrain co-sharer from sale of share - in which context suit for injunction was held not maintainable in law. This is different.

7. In view of aforesaid, no illegality was committed by learned appellate court in reversal of decision of rejection of plaint, in view of the facts of the case. No case for interference is made out under revisional jurisdiction.

8. Civil revision is, hereby, dismissed. No order as to costs. MHS/Z-11/L Revision dismissed.