2012 PLP 809 (YLR)

MUNIR AHMED CHAUDHARY, J.

This revision petition has been filed against the order passed by Additional District Judge Dadyal dated 26-8-2009, through which the order passed by Civil Judge Dadyal dated 17-8-2009 was upheld regarding interim injunction.

2. Brief facts giving rise, to the present revision petition are that the petitioner/plaintiff filed a suit for permanent injunction in the court of Civil Judge Dadyal on 19-5-2009, stating therein that the land measuring 04 Kanals and 08 Marlas bearing Survey No. 1372 situated at village Ankar Tehsil Dadyal District Mirpur is under possession of the appellant/ plaintiff and pro forma respondents being sharers. Respondent/defendant Mehboob Hussain wants to possess the disputed land. It was prayed by the petitioner/plaintiff to issue a decree of permanent injunction against the respondent/ defendant Mehboob Hussain. An interim injunction was granted against the respondent/defendant. The respondent/ defendant submitted objections on interim injunction. The learned Civil Judge Dadyal after hearing the parties, vacated interim injunction and the original suit was returned to the petitioner/plaintiff and directed to approach the relevant forum.

3. Feeling aggrieved, the petitioner/ plaintiff preferred an appeal before Additional District Judge, Dadyal. After hearing the parties, the learned Additional District Judge, Dadyal dismissed the appeal filed by the petitioner/plaintiff and maintained the order passed by the learned Civil Judge Dadyal dated 17-8-2009. Hence, this revision petition.

4. Arguments were advanced by the learned counsel for the parties, Ch. Muhammad Sabir Advocate, the learned counsel for the petitioner argued that both of the subordinate Courts have recorded their findings against the facts and provisions of law. The suit was returned to the petitioner without justification and it was done in violation of the relevant provisions of law. The learned counsel requested to accept the revision petition and referred the following precedents in support of his arguments. (I) PLD 1998 SC 509 (II) 2000 YLR 2898 (III) 2000 YLR 2351 (IV) 2003 CLC 595

5. While controverting the arguments advanced by the learned counsel for the petitioner, Raja Liaqat Ali Khan Advocate, the learned counsel for the respondent contended that both of the subordinate courts have recorded their concurrent findings. Both of the parties are co-sharers of the disputed land. No partition has been made in accordance with the provisions of law, so the possession of any party cannot be disturbed till partition of the land is not made. The learned counsel relied on the precedent 2006 YLR 856 and requested to dismiss the instant revision petition.

6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record minutely. The record reveals that three brothers, the respondent Mehboob Hussain, Muhammad Ashraf and deceased husband of the petitioner Muhammad Afzal Khan are endorsed as co-sharers of the disputed land. The houses of Mehboob Hussain and Mohammad Ashraf are built on Survey No. 1372. It is an admitted fact that the disputed land has not been partitioned in accordance with law, and the disputed land is not in possession of the petitioner and pro forma respondents. It has been held in the precedent 2006 YLR 856 referred by the learned counsel for the respondent as under:-- "It is a settled proposition of law that in a joint Khata every co-sharer is a sharer of every inch of the property and he has a right to defend his possession and title over the same". It is clear from the abovementioned principle that possession on the disputed land cannot be disturbed till partition of the disputed land in accordance with law is not made. One has to establish three requirements of law regarding interim injunction, a prima facie case, balance of convenience and irreparable loss. It is also a settled dictum by the superior Courts that if any of the three ingredients is missing, the plaintiff is not entitled for any interim injunction. Both the subordinate courts have observed that the petitioner/ plaintiff has not been able to make out a case for issuance of temporary injunction in his favour. In such-like cases this court, in exercise of revisional jurisdiction should not interfere with the concurrent findings of facts of courts below. It has been held in the abovementioned precedent that an injunction against a co-sharer cannot be issued on the application of other 'co-sharers. The precedents referred by the learned counsel for the petitioner don't have any conformity with the facts of the present case.

7. If there is any private partition, it doesn't change the nature of joint property unless it is partitioned by the Revenue authorities in accordance with the Land Revenue Act. This principle has been laid down in 2006 SCR

17. Both of the subordinate courts have directed the petitioner/plaintiff to approach the Revenue authorities for partition in accordance with the provisions of law. In such-like situation, the suit of permanent injunction is not maintainable and the courts below has rightly returned the suit of the petitioner. No indulgence is required into the findings recorded by both of the subordinate courts, which are based on sound and cogent reasons. In the light of what has been discussed above, the present revision petition stands dismissed with no order as to costs. H.B.T./2/H.C.(AJ&K) Petition dismissed.