1994 PLP 550 (MLD)

Feeling aggrieved -by the order of the learned Additional District Judge, Sialkot, dated the 3rd of February, 1992, whereby he had dismissed the appeal against the order of the Civil Judge, Sialkot passed on the 6th of November, 1991, the petitioner-plaintiff has filed this Revision.

2. The suit land measuring 13 Marlas is a joint-holding of the petitioner and respondent No.1 (Mst. Umar Bibi). She had sold her share of 6-1/2 Marlas to respondent No.2 (Ishtiaq Ahmad) vide sale-deed registered on the 12th of September, 1989. Apprehending possession and construction on the land abutting on Kallowal Road by the vendee-respondent, the petitioner had brought the suit for permanent injunction and alongwith if filed a petition under Order XXXIX, rules 1 and 2, C.P.C. for restraining the respondent from possession of the land in excess of his share towards the main road and from the proposed construction thereon. Initially, ad interim injunction was granted but subsequently it was withdrawn under Order XXXIX, rule 4, C.P.C. by the learned trial Court.

3. The contentions of the learned counsel for the petitioner, also raised before the learned Courts below and repelled, are that the contesting respondent was not competent to take possession of a more valuable portion of the property abutting on the main road without getting it partitioned.

4. The Jamadandi for the year 1968-69 describes the land in question as Ghair Mumkin which hollows that the shop, shown in the site plan, had been raised by Mst. Umar Bibi before the year 1968-69. In fact, the petitioner, instead of asking for permanent injunction, ought to have claimed partition of the property as Mst. Umar Bibi, and after the sale to Ishtiaq Ahmad the latter is in admitted possession of half of the portion of the land measuring 6-1/2 Marlas. Even after. the impugned sale, the petitioner had not asked for partition. Presently the petitioner cannot raise any objection to use of the property to the extent falling in the share of the respondent. It need not be gainsaid that a co-sharer in possession of a joint property is entitled to retain the possession until and unless the partition takes place by metes and bounds.

5. I find that demarcation had taken place in respect of the land in question by the Revenue Authorities. The respondent was found in possession of half share of the land, that is 6-1/2 Marlas, including the land as per detail of the registered deed of conveyance. There is also no merit in the contention that the respondent has changed the nature of the property. The suit land is already Ghair Mumkin and contemplated construction, therefore, would not change its nature. The petitioner should be content with reminder to the respondent that in case he raises further construction on the land in excess of his share, he shall do that at his risk. The learned' Court below had rightly refused grant of temporary injunction to the petitioner in circumstances of the case and it does not call for interference in Revision in view of the Supreme Court rulings, Muhammad Umar v. Sultan Mahmood (PLD 1970 SC 139) and Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53) wherein it was held that the High Court in Revision could correct errors made by subordinate Courts in exercise of their jurisdiction and erroneous decision of fact is ordinarily not revisable. The exercise of jurisdiction and discretion in withholding the relief to the petitioner was not fanciful and arbitrary.

6. Consequently, the revision petition is dismissed. H.B.T./F-54/L Revision dismissed.