2004 PLP 1136 (YLR)

O.XXXIX, Rr.1 & 2

Temporary injunction, grant of

Petitioner made out a prima facie and arguable case by claiming that the property was still joint and respondents had no right to raise constructions to change its character-- Validity

If the respondents were not restrained the petitioner was bound to suffer an irreparable loss and injury-- Balance of convenience also leaned in favour of the petitioner as the respondents were already in possession of the disputed land

Held in the circumstances, it was quite in the fitness of things and in the interest of parties that the injunction be issued. Sohail Majeed Khan for Petitioner. Subah Sadiq Kalasson for Respondents. Date of hearing: 21st January, 2004. This civil revision assails orders dated 26-10-2001 and 9-4-2003 passed by the learned Civil Judge and learned Additional District Judge, Gujranwala, whereby an application for grant of temporary injunction of the petitioner was dismissed and his appeal there against failed.

2. Precisely, relevant facts are that the petitioner filed a suit for declaration with permanent/mandatory injunction pleading that he is a co-sharer alongwith respondents in a joint Khata held by them, out of which one Kanal of land abutting road is in possession of respondent No.2, where over he intends to raise constructions to his detriment. Petitioner also asserted in his plaint that without resort to partition proceedings, respondent No.2 has no right to change character of land by raising constructions over one Kanal of land in his possession. Petitioner alongwith his suit filed an application under Order XXXIX, rules 1 and 2, C.P.C. seeking temporary injunction restraining respondents from raising any kind of constructions over the land in their possession. The trial Court after hearing the parties, dismissed the application of the petitioner vide its order dated 26-10-2001.

3. Petitioner aggrieved of the decision on his application for temporary injunction dated 26-10-2001 filed an appeal before the learned Additional District Judge, Gujranwala, but remained unsuccessful, as it was dismissed on 9-4-2003. Petitioner thereafter. filed this revision petition, which was admitted to regular hearing and has now been laid for final determination.

4. Learned counsel for the petitioner submits that Land owned by the parties still continues to be joint, parts of which are in their possession. According to him, land in possession of respondent No.2 is more valuable, being located on the road side, where over he cannot raise any kind of construction to change its character without resort to partition proceedings. He in this behalf referred to the cases of Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130, Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999 and Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC

676. He further submitted that all the three prerequisites needed for grant of temporary injunction exist in favour of the petitioner, but both the Courts below have not erroneously adverted to this aspect of the case, resulting into miscarriage of justice. It has also been added on behalf of the petitioner that propriety demands that pending suit, respondents should not be permitted to raise any kind of constructions.

5. Learned counsel appearing on behalf of the respondents refuted the assertions of the petitioner, supported judgments/orders of the two Courts below and urged that property owned by the parties has already been partitioned and patties are in possession of their respective shares. It has also been contended that after private partition, parties have a right to raise construction of their choice over the sharers in their respective possession and petitioner cannot control the title of property by any means whatsoever. Learned counsel for the respondents has referred to some arbitration award dated 24-4-1994 to show that private partition between the parties had taken place.

6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended herewith. The only Revenue Record produced on record is Jamabandi for the year 1985-86, which shows that land subject of dispute is still joint. Award dated 24-4-1994 relied by the respondents has for the first time, been attempted to be produced in revisional jurisdiction and was not brought to the notice of the two Courts below. Neither the private partition of joint holdings has been asserted in the written statement filed by the respondents nor the alleged award has been mentioned therein, hence I am not ready to accept this evidence at such a belated stage. Since there were no partition proceedings, so I will assume that partition between the parties has not taken place, for the purpose of decision of this petition. It is not disputed amongst the parties that one Kanal of land in possession of respondent No.2 abuts the road and is more valuable as compared to other land forming part of joint holding. It is a settled proposition of law that each co-sharer is owner in every part of the joint holdings to the extent of his entitlement. Any co-sharer cannot be permitted to change character of the land to the exclusion of other co-sharers, without resort to some lawful partition proceedings. Honourable Supreme Court of Pakistan in the case of Ali Gohar Khan (supra) very clearly mandated that since each co-sharer is deemed to be interested in every inch of land of joint holding, irrespective of quantity of his interest and thus one co sharer cannot be allowed to act in the manner which constitutes an invasion on the rights of the other co-sharers. It was also held that any co-sharer in possession of any part of the property cannot be permitted to change its character. In this judgment a right to restrain a co-sharer from raising constructions was also given. Similarly, in the case of Fazal and others (supra) defendant started raising constructions over the suit-land jointly owned by the parties, but the trial Court restrained him from the complained constructions, which judgment was maintained by the Appellate Court, as well as, by the High Court and no interference was made by the Honourable Supreme Court. I respectfully, following the view of the Honourable Supreme Court of Pakistan, hold that respondents have no right to change character of land by raising constructions, without resorting to partition proceedings especially pending suit of the petitioner.

7. Petitioner claims that property is still joint and respondents have no right to raise constructions to change its character, contrary to his interest, as observed above, hence it is obvious that he has made out a prima facie and arguable case in his favour. If the respondents are not restrained from the complained act, petitioner is bound to suffer an irreparable loss and injury and likewise, balance of convenience also leans in his favour. Respondents who are already in possession of the land subject of dispute, would not face any inconvenience if they are restrained from raising constructions, pending suit. In view of these circumstances, it was quite in the fitness of things and in the interest of the parties, as well, that injunction prayed should have been issued but all these matters escaped notice of the two Courts below, reflecting negatively on their judgments which being tainted with above noted illegalities and irregularities, cannot be allowed to be sustained. I accordingly, accept this revision petition, set aside orders dated 26-10-2001 and 9-4-2003 passed by the learned Civil Judge and the learned Additional. District Judge, Gujranwala, and accepting application of the petitioner for grant of temporary injunction, direct that status quo in all respects with regard to one Kanal of land, subject of suit, shall be maintained, pending suit. There will be no order as to costs.

8. Viewing convenience of the parties and simple nature of the dispute involved, it will be appropriate if proceedings are expeditiously concluded and the suit is decided within a period of four months from the receipt of this order. The trial Court shall submit a compliance report to the Deputy Registrar (Judicial) of this Court. M.A.W./G-6/L Revision accepted.