1989 PLP 1603 (MLD)

Dastagir Ghazi for Plaintiff. K.M. Nadeem for Defendants. Date of hearing: 2nd April, 1988. This application under Order 39, Rules 1 and 2, read with Section 151 C.P.C. is filed by the plaintiff with the prayer that defendant No.2 be restrained from making any addition, alteration or raising any construction on the front portion of building bearing plot No.P‑287, Block 13, Federal `B' Area, Karachi, till final disposal of this suit. The admitted background of the present dispute is as follows:‑‑ The property in dispute was inherited by the plaintiff alongwith defendant No.2 and one Habibullah from their late father Muhammad Ayub Khan. A suit for partition of the property was instituted in this Court being Suit No‑271 of 1979 in which a preliminary decree was passed by the Court on 16‑2 1980. Thereafter a final decree was passed on 4‑2‑1985. As a result of final decree ‑House bearing No. B‑1‑27/25, in Liaquatabad, went to the share of said Habibullah who became its exclusive owner. However, the present property namely property No. B‑287, Block 13 Federal `B' Area Karachi, was partitioned between the plaintiff and defendant No.2 according to the sketch attached with the consent final decree passed in the said case. It is admitted before me that the defendant No.2 is occupying the area which has been partitioned as per final decree dated 4‑2‑1985. It may be mentioned here that after the final decree an execution application was filed objecting to the existence of stair‑case in the portion of defendant No.2 which incidently passes over the portion assigned to the share of plaintiff. My learned brother Salim Akhtar; J. while deciding the aforesaid execution application observed that the plaintiff (present defendant No.2) has been given a right to use this staircase m the consent decree. Mr. Dastgir Ghazi, learned counsel for the plaintiff states before me, that an application for review of that order has already been filed which is pending in this Court. Be that as it may, by the present application the plaintiff is seeking an interim order to restrain the defendants from making any addition or alteration in the portion which has been duly allotted to defendant No.2 under a partition decree. There is no allegation that the plaintiff is not the owner of the portion in his occupation or that the proposed construction is against law. The plaintiff has based his right solely on the ground that he has a right of pre‑emption over the property in possession of defendant No.2. This alleged right of pre‑emption, however cannot justify an order of restraint against defendant No 2, from making any alteration or addition in the property which is owned by him, The contention of plaintiff that if additions and alterations are made in the property and the plaintiff succeeds finally in ‑establishing his right of pre‑emption, he may be compelled to pay more price for the property in its improved/altered shape has no substance. Mere fact that the plaintiff may succeed in establishing his right of pre‑emption in respect of the‑property in possession of defendant No.2 could not debar defendant No.2 from carrying out construction or improvement in his property unless it is against any specific provision of law. I, accordingly, do not see any reason to grant the injunction prayed for by the plaintiff. The application is accordingly dismissed. The interim order granted earlier stands vacated.

2. This application is filed by the defendant under Order VII, Rule 11, C.P.C. with the prayer that the suit of the plaintiff may be dismissed as barred by law. The contentions raised in the application require investigation into certain factual aspects of the case which can only be determined after evidence is recorded in the case. I accordingly dismiss this application with the observation that defendant is at liberty to raise these contentions in the written statement and can pray the Court to frame appropriate issues in this regard for trial alongwith other issue in the suit. The application is accordingly dismissed. H.B.T./H‑138/K Application dismissed.