PLJ
2010 AJ&K 112
Present:
Rafiullah Sultani, J.
MUHAMMAD
ZAREEF KHAN and another--Petitioners
versus
MUHAMMAD
MAROOF and 6 others--Respondents
C.R.
No. 12 of 2008, decided on 4.4.2009.
Co-sharer--
----Every
co-sharer has interested in each and every inch of joint property and one
co-sharer could not be permitted to alter the character of property without
consulting the other co-sharer. [P.
117] A
1994 CLC 2409, 2000 CLC 1138, ref.
Civil
Procedure Code, 1908 (V of 1908)--
----S.
115, O.XXXIX, R. 2(3)--Specific Relief Act, 1877, Ss. 42 & 54--Cancellation
of interim injunction--Undertaking though affidavit to remove superstructure if
decree is passed in favour of petitioner--Held: Not a
valid & legal ground for cancellation--One of the conditions to be
considered for the issuance of injunction is to avoid multiplicity of the suit. [P. 117] B & C
Sardar Ghulam Mustafa Khan,
Advocate for Petitioners.
Ch.
Liaqat Ali, Advocate for Respondents.
Date
of hearing: 4.4.2009.
Order
This
revision petition is directed against the judgment of District Judge Kotli dated 30.05.2008, whereby the judgment of Civil Judge
Kotli, Court No. 3, dated 7.7.2007 was maintained.
Brief
facts giving rise to the instant revision petition are that plaintiffs,
petitioners herein, filed a suit for declaration with prayer for
permanent-injunction against the defendants, respondents herein, in the Court
of Civil Judge Kotli, Court No. 3, on 29.06.2007. The
declaration was sought on the ground that the land comprising Khasra Nos. 644 & 645, situated at village Nara Kot, Tehsil Kotli
is shamlat land and petitioners herein are old owners
of the said land and Baj Khan who was father of the
non-petitioners was a refugee and has no nexus with the suit land and he was in
possession as tenant. An application under Order XXXIX, Rules 1 & 2 for
grant of injunction was moved alongwith the suit.
Stay order was issued against the defendants to maintain the status-quo. The
said application of injunction was resisted by one of the non-petitioners
(Abdul Hamid) and the trial Court, after due course
of law, dismissed the status-quo order on 07.07.2007. The petitioners, feeling
aggrieved by the said judgment, filed an appeal before District Judge Kotli, which was dismissed on 30.05.2008, hence this
revision.
The
learned counsel for the petitioners reiterated grounds of the revision and
further contended that the judgments of subordinate Courts are not in
accordance with law because ingredients of injunction are not in favour of the non-petitioners. Father of the
non-petitioners was refugee and was not entitled to share in shamlat of the village. It was argued by the learned
counsel that during pendency of the suit, the
non-petitioners have got gift-deeds from the undivided property of joint land
of co-owners and they want to raise construction over the suit land. He further
contended that according to law every co-sharer has interest in every inch of
the joint property and no co-sharer can be allowed to change the nature of the
joint property without partition. It was next argued that undertaking regarding
the suit land has been given only one of the non-petitioners and not by all
non-petitioners. In support of his version, he cited following case law:- 1994 CLC 2406 & 2000 CLC (Pesh.)
1138.
The
learned counsel for the non-petitioners defended the judgments of the
subordinate Courts and further contended that the impugned judgments are in
accordance with law and no illegality has been committed by them while dismissing
the application of injunction of the petitioners. It was argued that during pendency of the suit they have got two gift-deeds from Farjan Begum & Amir Begum
from the disputed Khewat and on account of that they
are co-sharers and decree of Khas possession cannot
be passed against them. It was next argued that they have given undertaking
that if the decree is passed in favour of the
petitioners then they shall not claim the improvement and would demolish the
said improvement made over the suit land. It was argued that ingredients of
injunction are in favour of non-petitioners. The
learned counsel for the non-petitioners cited following case law in support of
his version:- 1998 SCR 12 & 2008 CLC 934.
I
have heard, the learned counsel for the parties and gone through the record of
the case carefully. Scan of the record of the case reveals that mutations
numbers 449 & 550, sanctioned in favour of the
non-petitioners have been cancelled by Revenue Authorities and they have been
shown as co-sharer in the disputed land on the basis of Mutation Nos. 453 &
458 which have been sanctioned on the basis of gift-deed executed during pendency of the suit. The impugned judgment has been passed
by learned District Judge Kotli on two grounds;
firstly that the non-petitioners are co-sharers and secondly that they have
submitted undertaking.
While
dealing with the first point, it is admitted from the revenue record that
father of the non-petitioners was refugee and the suit land is shamlat of the village and he was not entitled to get share
from the shamlat property of the village. Prima-facie
Baj Khan was not an old owner of shamlat
of the village. He was recorded as Ghair Moroosi; Ghair Moroosi is defined, the person who has temporary possession
and has no title regarding land is called Ghair Moroosi. It is correct that during pendency
of the suit, petitioners have got executed two gift-deeds in their favour from the undivided share of the joint property by
other co-sharers namely Farjan Begum & Amir Begum and now, they want to raise further construction
over the suit land. It is celebrated principle of law that every co-sharer of
joint property has interest in each and every inch of the land and no joint
owner can change its character without first having the joint property
partitioned. It was held in case law titled Ali Gohar
Khan Vrs. Sher Ayaz & others, reported in 1989 SCMR 130, cap. (a), which reads as under:--
"(a) Co-sharer--
----Joint
immovable property--Co-sharer's rights--Extent of--In case of joint immovable
property, each co-sharer deemed to be interested in every inch of
subject-matter irrespective of quantity of his interest--One co-sharer cannot
be allowed to act in a manner which constitutes an invasion on the right of
other co-sharer--Co-sharer in possession of a portion of joint property cannot
change nature of property in his possession unless partition takes places by
metes and bounds."
It
was held in case titled Sardara & 04 others Vrs. Muhammad Khan, reported in PLD 1998 SC of Pak. 1509,
cap. (b) , which reads as under:--
"(b)
Co-owner----
----Constitution
of
It
was held in case titled Muhammad Yusuf Khan Vrs. Board of Revenue and 12 others, reported in 2001 SCR
324, Cap. (d), which reads as under:--
"(d)
Co-Sharer--
---In
law every co-sharer is deemed to be the owner of every piece and parcel of the
land unless the same is regularly partitioned."
The
similar controversy was under consideration before the
"(a) C.P.C.
----O.
XXXIX, Rr. 1&2--Interim injunction, grant
of--Respondent who was one of co-sharers of jointly owned property, demolished
said property and started fresh construction without consent of other
co-sharers--In case of joint immovable property, every co-sharer would be
deemed to have ownership right in every part of property and one co-sharer
could not change nature of property--Trial Court on application of one of the
co-sharers granted interim injunction observing that prima-facie, property
being jointly owned by parties, all co-owners possessed property and that one
co-sharer could not use it in such a way as to alter its joint character or was
inconsistent with right of other co-sharer or was likely to cause such loss to
them as could not be made good at time of partition of property between
co-sharers- Trial Court having rightly issued stay order, High Court was not
justified to vacate same."
"(b)
Co-owner---
----In
case of joint immovable property, every co-sharer would be deemed to have
ownership right in every part of property and one co-sharer could not change
nature of property."
It
was held in case titled Muhammad Zubair Vrs. Syed Zakir
Hussain Shah and another, reported in 1996 CLC 275,
cap. (a), which reads as under:--
"(a) Co-sharer---
----Every
co-owner in joint property has interest in each and every inch of land and no
joint owner can without first having the joint property partitioned, take hold
of any specific portion or change its character."
The
similar controversy has been resolved by Lahore High Court in case titled Khurshid Anwar Jalil and 6 others Vrs. Muhammad Hafeez Mirza and 14 others,
reported in 2003 CLC 169 5 cap. (b) & (c), which reads as under:--
"(b) Co-sharer---
----Joint
immovable property--Co-sharer's right--Extent--Every joint owner shall be
deemed to be in possession of each and every inch of joint property--If strong
co-sharer after taking possession of more valuable part of joint property
either alienates same or changes its character, then it cannot be said that
weak/poor co-sharer may file suit for partition and till its decision, strong
co-sharer may alienate same or change its character and throw his adversary
into ditches or barren land by taking commercially valuable land abutting on
road side or more fertile land--Such course cannot be allowed under principle
of equity and justice."
"(c)
Specific Relief Act----
----Ss.
42 & 54--CPC, O. XXXIX, Rr. 1 & 2--Suit for
declaration and permanent injunction--Prayer for temporary injunction to
restrain defendant (co-sharer) from alienating joint property--Trial Court
refused to grant such temporary relief, but Appellate Court granted the
same--Validity--All ingredients for grant of temporary injunction coexisted in favour of plaintiff--Non-passing of order to restrain
defendant from alienating joint property would have resulted in multiplicity of
proceedings-Appellate Court had not committed any irregularity or illegality in
setting aside order of Trial Court--High Court dismissed, revision
petition."
This
view also gets support from case laws; 1994 CLC 2409 and 2000 CLC 1138.
Now
from the survey of above case law, it is settled position of law that every
co-sharer has interest in each and every inch of joint property and one
co-sharer could not be permitted to alter the character of property without
consulting the other co-sharers. It is pertinent to note that non-petitioners
have not pleaded in application for cancellation of injunction which they have
moved before trial Court that they are co-sharers. It has repeatedly held by
superior Courts that only those documents should be considered in case of injunction which are part of the record at time of filing of
the application for injunction.
Coming to the next point which is regarding undertaking. As stated earlier that
the application for cancellation of injunction has been moved only one of the
non-petitioners namely Muhammad Hamid while the total
non-petitioners are seven. Rest six non-petitioners have neither moved
application for cancellation nor they submitted the
affidavit. Due to this reason, the said undertaking made by Muhammad Hamid cannot be considered valid and legal ground for
cancellation of injunction. Even otherwise, the plea of undertaking for filing
of affidavit to remove the construction, in case if the decree is passed in favour of the petitioners, cannot be accepted in the
circumstances of the case as one of the conditions to be considered for the
issuance of injunction, is to avoid the multiplicity of the suits and such
circumstances can generate such further litigation.
In
view of above, it is held that plaintiffs/petitioners have got ingredients of
injunction in their favour. Therefore, this revision
petition is accepted and the impugned orders or the subordinate Courts dated
30.05.2008 & 07.07.2007, respectively, are set aside and the status-quo
order issued by this Court against the non-petitioner shall remain continue
till the disposal of original suit.
Revision
accepted.
(W.I.B.) Revision
allowed.