1980 PLP 754 (SCMR)

ANWARUL HAQ, C. J.‑This petition seeks' special leave to appeal against an order made by a learned Judge of the Lahore High Court on the 17th of September, 1979, by which an interim injunction has been granted in favour of respondents 1 and 3 during the pendency of their suit for declaration and a permanent injunction restraining the use of the land in dispute for the purpose of a brick‑kiln. The land in dispute measures 3346 kanals of land and is situate in village Lakhian in Tehsil Shahpur of District Sargodha. It is jointly held by the three respondents, who are brothers inter se. On the 23rd of October, 1977, respondent No. 1 entered into a lease agreement with the petitioners in respect of 71 kanals, out of which 2 killas were to be utilised for the construction of a brick‑kiln and the remaining area was to be used for digging earth for the manufacture of bricks. The other two brothers filed a suit on the 3rd of February, 1979 praying for a declaration that their third brother had no right to enter into the transaction without their consent, and that the agreement of lease was, therefore, ineffective as against their rights. As a consequential relief they sought a permanent injunction restraining the petitioners from using the land for the purposes of the brick‑kiln and from digging earth for the manufacture of bricks. The trial Court dismissed the respondents' application for a temporary injunction by its order dated the 11th of March. 1979, and the respondents' appeal was dismissed by the learned Additional District Judge, Sargodba, on the 15th of may, 1979. However, acting in revision, the High Court has granted a temporary injunction restraining the petitioners from digging earth born the land in dispute, although it has permitted the brick‑kiln to continue functioning on the ground that it had already been constructed. The learned Judge has held that the plaintiffs had a prima facie case as they were co‑owners of the property in dispute and, were in joint possession; and that irreparable loss would be caused to them if digging of the earth was allowed. Leave to appeal is sought on the ground that the petitioner had already installed a tube-well this land, and that the area leased out in favour of the petitioners by respondent No. 1 was much less than his share in the joint holding, and, therefore, he was competent to enter into the lease in question. It is submitted that in the circumstances of the case the revisional jurisdiction of the High Court was not attracted, as there was no illegality in the orders made by the two Courts below, and at best status quo at the time of the institution of the suit could be restored under Order XXXIX of the Civil Procedure Code, and that being so, the digging of the earth could not be prevented. There is no merit in these submissions. From the material placed before the High Court, it is clear that the land in dispute forms part of a joint undivided holding, with the result that one of the co‑sharers could not enter into a lease without the consent of the other co‑owners, nor could he hand over possession of any area to a third party as he was not in exclusive possession thereof. The learned Judge in the High Court was, therefore right in holding that the plaintiffs had a prima facie case. He was similarly right in holding that irreparable loss would accrue to the: plaintiffs if digging of earth from their land was allowed for the purpose of manufacture of bricks. It was stated before us that the digging was to be done at least up to a depth of 7 feet. It is clear that if this kind of operation is allowed to continue during the pendency of the suit, the nature of the property would undergo a radical change, thus resulting, in an irreparable loss to the plaintiffs. It appears that the Courts below had not taken note of this aspect of the matter, and; accordingly, it amounted to a material irregularity in the exercise of their jurisdiction, which could be corrected by the High Court in the exercise of its revisional powers. The learned Judge in the High Court has already taken a balanced view of the matter by permitting the petitioners to continue the operation of their brick‑kiln which had already started functioning. In these reasons, the petition fails and is hereby dismissed: Petitions dismissed.