2000 PLP 1138 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑S. 115 & O. XXXIX, Rr. 1, 2‑‑‑Partition of joint property‑‑‑Dispute between co‑sharers‑‑‑Defendants were in possession of some portion of undivided property and intended to construct on the same‑‑‑Plaintiff preferred suit against such act of defendants‑‑‑Trial Court refused to grant interim injunction, but the same was granted by Lower Appellate Court‑‑ Validity‑‑‑Defendants failed to show that order of the Lower Appellate Court was either without jurisdiction or was suffering from material irregularity or illegality‑‑‑Effect‑‑‑Where none of the ingredients contained in S.115, C.P.C. were brought on record, revision petition was dismissed in. limine. Abdul Qayum Sarwar for Petitioner. Ziaur Rehman Rspondent (on Pre‑Admission Notice). Muhmmad Yousaf (hereinafter to be referred as respondent) brought a suit for a declaration and perpetual injunction against Noor Rehman and others (hereinafter to be referred as petitioners) in respect of the suit property measuring 32 Kanals, 12‑1/2 Marlas with consequential relief for the possession of the suit property, the detail of which is given in the heading of the plaint. The claim of the plaintiff according to the averments of the plaint is that he is the co‑owner of the suit lapd to the extent of 32 Kanals, 12‑1/2 Marlas and that the defendants 14 to 21 wanted to construct some Abadi over the valuable portion of the said land and was, therefore, converting .the status and nature of the agricultural land for residential purpose, therefore, the plaintiff prayed that the defendants be restrained from making construction over the suit property as the sane was their joint property and without partition they could not carry out the construction. Alongwith the plaint an application for temporary injunction was moved before the trial Court by the plaintiff which was contested by the opposite party and vide order, dated 22‑9‑1998 the learned Senior Civil Judge, Charsadda dismissed the petition with a direction that to safeguard the plaintiff's right defendant 14 to 21 shall submit their personal undertaking to the effect that if in the final regular partition the disputed portion of the suit land fell in plaintiff's lot then they will not claim the improvements made during the pendency of the instantsuit. The learned District Judge, Charsadda vide order dated 6‑3‑1999 accepted the appeal of the present respondent and restrained‑the petitioners from raising any building over the suit land or to alienate it. Having been aggrieved of the aforesaid order Noor Rehman etc. have filed the present revisions petition.

2. I have heard the learned counsel for the petitioners and the learned counsel for the respondent who is present in Court pre‑admission notice.

3. Admittedly the respondent is a co‑owner and a co‑sharer in the suit property which according to the plaint consists of many Khasra numbers as such they are interested and have a right in each and every Khasra number of the suit land irrespective of the quantity and quality because no regular partition has taken place between the contesting parties. In such‑like cases a co‑sharer who is in exclusive possession of a specific .portion of a joint property cannot alienate, transfer or change the property unless a regular partition takes place between them support of this proposition the learned counsel for the respondent relied on 1989 SCMR p.130 and 1999 CLC page

598. In the aforesaid two citations it was observed that in case of a dispute between co‑sharers in joint immovable property each co‑sharer is deemed to be interested in every inch of the subject‑matter irrespective of quantity of his interest, therefore, a co sharer even in exclusive possession of a specified property cannot be permitted to alienate or transfer such property which might change its joint character or otherwise damage the right of other co‑owner subject to the adjustment of the property at the time of partition. Apart from the aforesaid proposition of law while invoking revisional jurisdiction of this Court, it is incumbent upon the petitioners to show that the impugned order is either without jurisdiction or is suffering from material irregularity or illegality. Since none of the ingredients contained in section 115, C.P.C. have been brought on record, therefore, the petition having no merit is dimissed in le limine. Since the matter before the trial Court is at initial stage, and much time has been consumed by the parties in delaying the matter, therefore, the trial Court is directed to dispose of the matter expeditiously. Q.M.H./M.A.K./43‑P Revision dismissed.