2006 PLP 442 (MLD)

SYED JAMSHED ALI, J.

This revision petition is by a defendant in the suit and is directed against the judgment and decree dated 27-5-1998 of the learned Additional District Judge, Kharian, whereby the suit filed by respondent No.1 was decreed by reversing the judgment and decree of the learned trial Court dated 17-2-1998. The facts of the case are briefly noted hereunder.

2. On 2-1-1992, Muhammad Siddique deceased respondent No.1, now represented by his legal heirs, filed a suit for permanent injunction against Abdul Rehman, the petitioner and respondents Nos.2 to

6. His case was that land measuring 9 Kanals and 17 Marlas comprising Khasra Nos.506 and 507 situated in Mauza Singla, Tehsil Kharian was joint property of the parties to the suit. It was averred that Abdul Rehman petitioner had purchased some land from respondents Nos.2 to 6 and wanted to raise construction without partition of the joint holding.

3. The suit was resisted. A number of preliminary objections were taken. The case of the petitioner was that he had got an area measuring 2 Kanals, 5 Marlas from Khasra No.506 through a Mutation of exchange No.3083, dated 16-12-19991 and on the property exchanged had raised a wall and installed a gate. The suit was tried.

4. The parties led evidence in support of their respective contentions. Vide judgment dated 17-2-1998 the learned trial Court dismissed the suit with findings that although the joint Khata had not been formally partitioned by an order of the Court yet for all practical purposes de facto partition had already taken place on the spot, the plaintiff had earlier filed a pre-emption suit against the exchange through which the petitioner had become owner in the joint Khata, father of the plaintiff was exclusive owner in Khasra Nos.507/1 and 507/2 and therefore, he had nothing to do with the land in Khasra No.506. The basis of this findings was Exh.P.3, the judgment and decree in the litigation between Sahib Dad, predecessor-in-interest of respondents Nos.2 and 6 and respondent No.1 plaintiff Muhammad Siddique's father namely Shah Muhammad. It was also held that a suit for perpetual injunction was not maintainable. The plaintiff-respondent No.1 filed an appeal on which the judgment and decree of the learned First Court was reversed.

5. The learned counsel for the petitioner submits that a co-sharer is entitled to retain possession of the land alienated in his favour by another co-sharer till partition took place and, therefore, a suit for permanent injunction was not maintainable. Reliance was placed on Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463), Abdullah and others v. Muhammad Nawaz and others (1994 SCMR 83), and Muhammad Sharif and 3 others v. Ghulam Hussain and another (1995 SCMR 514). His next contention is that the property in dispute which had assumed the urban character, had already been alienated in small bits by the co-owners on which a number of persons and constructed their houses and, therefore, the findings of the learned trial Court that although the joint Khata had not formally been partitioned it stood factually partitioned at the spot was not open to interference. By placing reliance on Exh.P.3, the judgment referred to above, the learned counsel tried to persuade me to draw inference that the Khasra Nos.506 and 507 was not joint property.

6. The learned counsel for respondent No.1 has opposed this revision petition. His contention is that both the Courts have concurrently found that the joint Khata aforesaid does not stand partitioned by an order of the Court. As far as maintainability of the suit is concerned, reliance in being placed on Abdul Basir Khan and 3 others v. Sanaur Rehman and 2 others (PLD 1994 Pesh. 197), Muhammad Ashiq v. Abdul Jalil Usman and others (1994 CLC 2409), Afsar Khan and others v. Mst. Khanum Jan and others (1983 SCMR 273), Atta Muhammad v. Sahibzada Manzoor Ahmad through Legal Heirs and others (1991 SCMR 1648) and Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130).

7. The submissions made by the learned counsel for the parties have been considered. Both the learned Courts found as a tact that joint Khata aforesaid was not partitioned. As far as filing of the pre-emption suit by plaintiff-respondent No.1 against the exchange in favour of the petitioner is concerned, nothing turns on this plea and the suit of the plaintiff-respondent could not be thrown out on the ground that he had accepted that alienation by filing the pre - emption suit. As far as Exh.P.3 is concerned, I have perused the judgment. The learned First Appellate Court also took into consideration Exh.P.3 and came to the conclusion that from the findings in the said judgment it could not be inferred that the joint holding stood partitioned.

8. The only question that required determination was whether suit for permanent injunction by a co-sharer against another co-sharer is maintainable. The first judgment to be noted in this case Ali Gohar (supra) in which is co-sharer had filed suit for permanent injunction. The suit was dismissed on the ground that a private partition had taken place. The learned District Judge reversed the judgment of the trial Court and decreed the suit. However, the learned Peshawar High Court set aside the said decree. The matter was then taken to the Hon'ble Supreme Court of Pakistan and the sole question for Lordships consideration was whether in the circumstances of the said case a decree for perpetual injunction could be granted. The appeal of the plaintiff was allowed with the following observations: "A 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 the nature of property in his possession unless partition takes place by metes and bounds." The cases of Afsar Khan and Atta Muhammad (supra) are not on the question being examined. In case of Abdul Nasir Khan (supra) the judgment in the case of Ali Gohar Khan (supra) was relied upon by the learned Peshawar High Court. Similar view was taken by the learned Peshawar High Court in Muhammad Ashiq (supra).

9. The judgments cited by the learned counsel for the petitioner have been examined. In Jan Muhammad (supra) on the basis of sale by a co-sharer, the plaintiff had claimed exclusive title. The suit was ultimately dismissed. The observation of the Hon'ble Supreme Court was that alienation by a co-sharer in possession cannot put an end to the joint ownership of the property and the transferee would step into the shoes of the transferor. In the case of Abdullah (supra) the Hon'ble Supreme Court observed that mere possession over a portion of un-partitioned land does not make a person in possess. On owner of that portion of land till the land was partitioned by the competent forum. The question involved in the said case was whether the Settlement and Rehabilitation Department had already effected the partition. According; the suit was remanded to the learned trial Court. In the case of Mohammad Sharif (supra) a co-sharer in possession had alienated land :u excess of his entitlement which was assailed by another co-sharer. The observation of the Hon'ble Supreme Court was that the vendee steps into the shoes of a co-sharer. None of the judgments relied upon by the learned counsel for 'he petitioner deal with the question whether a suit for permanent Injunction by a co-sharer against another co-sharer is maintainable?

10. However, there is merit in the contention of the learned counsel that a co-sharer in possession can, while alienating his share, transfer possession of his holding to another person which will be subject to partition. He invited my attention to the statement made by the plaintiff Muhammad Siddique in which he admitted that on a portion of the joint Khata the petitioner was in possession and had raised boundary wall and installed a gate. However, prayer made in the plaint was in the following terms:-- The suit was decreed by the learned First Appellate Court. It is, however, clarified that respondent No.1 shall be entitled to retain possession of the land in the joint Khata till it is partitioned by metes and bounds.

11. This revision petition is dismissed subject to the above observations. H.B.T./A-641/L?????????????????????????????????????????????????????????????????????????????????? Revision dismissed.