PLJ 2010
[
Present:
Hafiz Abdul Rehman Ansari,
J.
ALLAH DITTA
and 2 others--Petitioners
versus
RAB NAWAZ
SAJID and 3 others--Respondents
C.R. No. 562
of 2010, decided on 7.5.2010.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
XXXIX, Rr. 1 & 2--Temporary injunction was
dismissed by Courts below--Concurrent finding--Petitioners could not produce
any documentary proof of family partition--Co-sharers--Joint
property--Validity--Both the parties were joint owners of the property in
question and petitioners were demanding injunction against their co-sharers as
every co-sharer had possession on each and every inch of the joint property--If
the petitioners wanted to get any interim injunction, first of all they would
move an application for partition in accordance with law--Since both the
parties were co-sharers in the suit property--No temporary injunction can be
granted against the co-owners--Revision was dismissed. [Pp. 655 & 656] A
Civil
Procedure Code, 1908 (V of 1908)--
----S. 115
& O. XXXIX, Rr. 1 & 2--Civil
revision--Petitioner was in possession of more than his entitlement in joint
property--Temporary injunction was dismissed by Courts below--Concurrent
findings--Jurisdictional defect--No proof of family partition distribution of
the property had been brought on file--When there are concurrent findings with
regard to facts and law--Unless jurisdictional defect in the order passed by
Courts below--High Court cannot interfere in concurrent findings in exercise of
power u/S. 115, CPC--Revision was dismissed. [P.
656] B
Malik Abdul Khaliq,
Advocate for Petitioners.
Date of
hearing: 7.5.2010.
Order
In a suit
for permanent injunction that the petitioners-plaintiffs are owner in
possession of the suit property under partition since the last 31 years, the
application of the petitioners under Order XXXIX Rules 1 and 2, CPC seeking
temporary injunction was dismissed by the learned Civil Judge, Multan vide order dated 5.12.2005. Against the said order,
the appeal filed by the petitioners was also dismissed, by the learned
Additional District Judge,
2. The respondents-defendants contested the suit
as well as the application under Order XXXIX Rules 1 and 2, CPC by filing
replies.
3. In support of the application filed under
Order XXXIX Rules 1 and 2, CPC, the learned counsel for the petitioners
contended that the petitioners are in possession of the suit property since
long, Khasra, Girdawari is
also in their names; they are owners of the suit property but the respondents
are adamant to illegally dispossess them from the said property; that they have
prima facie a fit arguable case in their favour as
they are owners under private partition over the suit property. Further
contends that the report of the Local Commission is also in favour
of the plaintiffs-petitioners, that both the Courts have committed illegality
and irregularity in dismissing the application of the petitioners filed under
Order XXXIX Rules 1 and 2 CPC; both the Courts did not peruse the documentary
evidence appended with the plaint hence the orders of both the Courts are based
on misreading and non-reading of the documents on the record.
4. I have heard the learned counsel for the
petitioners at length. There are concurrent findings of the two Courts below
with regard to the land in dispute that the petitioners could not produce any
documentary proof of family partition of the land in dispute. Both the Courts
rightly observed that both the parties are joint owners of the property in
dispute and the petitioners-plaintiffs are demanding injunction against their
co-sharers as every co-sharer has possession on each and
every inch of the joint
property. If the
petitioners-plaintiffs want to get any interim injunction, first of all they
should move an application for partition in accordance with law. Since both the
parties are co-sharers in the suit property, therefore, no temporary injunction
can be granted against the co-owners. The case of the respondents is that
petitioner/plaintiff is in possession of more than his entitlement in joint
property, which stance is taken in the written statement and reply to the
application. No proof of family partition/distribution of the property has been
brought on the file. Further, when there are concurrent findings with regard to
facts and law, unless there is jurisdictional defect in the orders passed by
the two Courts below, the High Court cannot interfere in the said concurrent
findings in exercise of power under Section 115, CPC. There is no
jurisdictional defect in the orders of both the Courts below. The findings of
both the Courts are based on cogent reasons. There is also no illegality or
irregularity in the said impugned orders.
5. For the reasons discussed above, I find no
merit in the civil revision, which is dismissed in limine.
(R.A.) Revision
dismissed.