2019 PLP 62 (CLCN)

MIRZA VIQAS RAUF, J.

Through instant revision petition, the petitioners assail the vires of judgment dated 26th September, 2017, whereby the learned Additional District Judge, Lahore, while allowing the appeal filed by Respondent No. 1 (hereinafter, referred as "respondent") set aside the order dated 06th June, 2017 passed by the learned Civil Judge Class-I, Lahore, resulting into dismissal of an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C.") moved by him.

2. Briefly the facts necessary for adjudication of instant petition are that the "respondent" instituted a suit for declaration along with partition and injunction averring therein that he is owner in possession of suit land mentioned in Para No.1 of the plaint by way of registered sale deed dated 17th December, 2012 which followed mutation No.279, dated 28th December, 2012. As per averments contained in the plaint, when the "respondent" visited the suit land he became astonished to observe that raw building material was lying there and the petitioners being owners of joint khata were in the process to construct boundary wall over there. It is asserted in the plaint that the "respondent" being co-owner/sharer in the joint khata requested the petitioners that they cannot make construction over the same without partition but they refused. The suit was accompanying an application under Order XXXIX, Rules 1 and 2 of "C.P.C.". The suit was resisted by the petitioners, who submitted their joint written statement as well as reply of the application. The learned Civil Judge, while proceeding with the application for the grant of temporary injunction dismissed the same by way of order dated 06th June, 2017. The "respondent" feeling aggrieved, preferred an appeal before the learned Additional District Judge, Lahore which was allowed through impugned judgment dated 26th September, 2017, hence this petition under section 115 of "C.P.C.".

3. Learned counsel for the petitioners submitted that the petitioners are owners in possession of the suit property being, co-owner and are interested in each and every inch of the property. Learned counsel contended that "respondent" has failed to bring on record any tangible material, justifying the grant of temporary injunction. Learned counsel argued that the learned Additional District Judge did not properly exercise its appellate jurisdiction and allowed the appeal by way of impugned judgment, while ignoring the material available on the record. Learned counsel maintained that learned Civil Judge was right in its approach to decline the relief of temporary injunction to the "respondent".

4. Conversely, learned counsel for "respondent", while defending the impugned judgment submitted that title as well as possession of the petitioners are under scrutiny before the learned trial Court. He added that suit property has wrongly been occupied by the petitioners under the garb of sale deed. Learned counsel contended that rights of both the parties will be protected if the petitioners be restrained from constructing the suit property during the pendency of the suit.

5. On the other hand, learned counsel for Lahore Development Authority has conceded that both the parties are co-owners in joint khata.

6. Heard. Record perused.

7. The parties are admittedly co-owners. There is no denial that the petitioners have purchased property in the year 2005 through registered sale deed and the "respondent" has purchased property in the year 2012 but law is well settled that in case of joint immoveable property every co-sharer would be deemed to have ownership right in every inch of property and one sharer cannot change the nature of property unless partition takes place. Even otherwise co-sharer in joint property can neither make any change in the property without the consent of other co-sharer, nor he can deal with the joint property in a manner prejudicial to the interest of other co-sharer without his permission.

8. The grant of temporary injunction rests upon the existence of three pre-conditions in the form of prima facie case, balance of convenience and irreparable loss. From the available record, it can safely be inferred that "respondent" was able to prove the existence of three pre-requisites in his favour. This was the reason that learned Additional District Judge proceeded to grant the temporary injunction in favour of the "respondent", while restraining the petitioners from changing the nature of the suit property till the final decision of the suit.

9. The scope of revisional jurisdiction is circumscribed to the eventualities mentioned in section 115 of "C.P.C.". The revisional powers are limited and can only be exercised when the petitioner(s) succeeds in establishing that the impugned order/judgment suffers legal infirmities, hedged in section 115 of "C.P.C.". The revisional jurisdiction can only be invoked, if some patent illegality is floating on the surface of record. The petitioners have failed to point out any illegality or material irregularity in the judgment under challenge, therefore, I am not inclined to exercise the revisional jurisdiction. As a sequel of above discussion, instant petition, being devoid of any merits is dismissed in limine. SA/F-19/L Revision dismissed.