2016 PLP 176 (CLC)

YAHYA AFRIDI, J.

This revision petition is directed against the judgment and decree dated 20.10.2010, passed by learned Additional District Judge-IV, Mardan, whereby the appeal filed by petitioners against judgment and decree dated 21.6.2010, of learned Civil Judge-VII, Mardan, was dismissed.

2. At the very outset, worthy counsel for petitioners was confronted to explain as to how the present relief sought by petitioners, could be proceeded by any Court of law without any prayer for partition of the joint undivided property, he was unable to assist the Court positively regarding the query raised.

3. By now, it is a settled principle of law that a co-owner of an undivided property seeking injunctive relief, could only seek the same with the formal partition of the undivided property. The co-owners on seeking the partition of the joint property, would be able to clearly obtain the determination of the respective share of each co-owner and the injunctive relief would be surely resolved therewith.

4. The rationale behind this principle is that each co-owner of an undivided property is presumed to be the owner in possession of each inch of the land. So, it would not be proper to restrict his such right and thereby put a clog of his entering into or interfering with the physical possession of another co-owner of the said undivided property. Granting injunctive relief to one co-owner would thereby amount to authorizing one of the co-owners to legally take possession of a valuable portion of the joint property and thus frustrate the ultimate partition of the joint property.

5. This matter was initially discussed by the apex Court in Muhammad Zafar Khan's case (PLD 1959 SC (Pak) 9) in terms that: "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers". (emphasis provided) The Superior Courts have consistently followed the aforementioned principle and recently this view has been confirmed by the Superior Courts in Ghulam Muhammad's case (1991 MLD 193), Atta Muhammad's case (1992 SCMR 138), Jan Muhammad's case (1993 SCMR 1463), Abdur Rehman and 7 others' case (1998 SCMR 1589), Muhammad Abid's case (2000 SCMR 780), Mst. Yaseen's case (2010 CLC 1618), Firdos Khan's case (2011 MLD 521), Niaz War Jan's case (2007 YLR 1723), Muhammad Sirajul Islam's case ( 2007 YLR 2645), Ghulam Nabi's case (1991 CLC 708), Muhammad Anwar's case (2003 MLD 742), Muhammad Ibrahim's case (2005 SCMR 1335) and Syed Shabir Hussain's case (2007 SCMR 1884), and Gulzar Begum's case (2012 YLR 809) .

6. It would be pertinent to note that there are two exceptions to the general principle discussed hereinabove, where a co-owner cannot seek injunctive relief regarding his proprietary or possessory rights as a co-owner without seeking partition. The same are as follows: Firstly, when the co-owner rights, as co-owner of the undivided property is denied, he may seek a declaration of his proprietary rights in the undivided property. In such circumstances, the co-owner may first seek a declaration regarding his proprietary shares in the joint property and after seeking such a declaration, may thereafter, seek partition along with other injunctive reliefs. This principle has been eloquently described by the apex Court in Muhammad Rafiq's case (2004 SCMR 1036), wherein it was stated that:- "

3. Learned counsel for the petitioners submitted that the only objection which the petitioners wanted to agitate was that since the respondents were not in possession of the property, therefore, the suit for mere declaration without prayer for consequential relief of possession was not maintainable.

4. We are afraid, the argument is plainly unsound. The heirs of Nawab had become joint owners of the property after the termination of limited interest of Hakam Bibi therefore, it was a case of joint ownership and suit for declaration by one of the joint owners that they were also owners in the property which right was being denied to them, was maintainable.

5. It was not necessary for any of the joint owners, to have claimed partition of the joint property at, present as it could be claimed by any of the joint owners during the currency of joint ownership without limitation of any period in that behalf so long as the right of any of the joint owners was not denied which was not in dispute in the case." Secondly, in cases where a co-owner of the undivided property is dispossessed he may, without seeking partition thereof, pray for possession under section 9 and not under section 8 of the Specific Relief Act, 1877. This matter was elaborately discussed by the Apex Court in Mst. Resham Bibi's case (1999 SCMR 2325) relying upon the judgment rendered by the High Court Calcutta in Joy Gopal Sing's case and another by the Lahore High Court in Muhammad Shafi's case (1979 CLC 230) in terms that: "

22. We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partition of the joint property. To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity.

23. We, therefore, hold that the appellants could see restoration of their exclusive possession of the site in dispute by filing a suit under section 9 of Specific Relief Act against the respondents by whom they had been ousted, but as they did not bring such a suit, they could not ask for the aforesaid relief by instituting an ordinary suit for possession without claiming better title than the one vesting in the respondents." The ratio decidendi of the aforementioned judgment has been consistently followed thereafter by the superior courts of our jurisdiction, and some of the important cases in this regard include Haji Muhammad Alam's case (2009 SCMR 688) and Muhammad Riaz's case (2006 YLR 1071).

7. Before parting with this judgment, this court would appreciate the efforts made by Abdul Zakir Tareen, Advocate, who provided assistance to the Court, as amicus.

8. Accordingly, for the reasons stated herein above, this petition is dismissed. However, the petitioners may, if so advised, invoke their relief for partition of the joint undivided property along with declaratory and injunctive relief claimed herein, before the competent legal forum. ZC/309/P Revision dismissed.