MUHAMMAD BASHIR vs MUHAMMAD NAZIR and others
The petitioner filed a suit for partition of joint property along with an application under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure 1908 seeking a temporary injunction to restrain respondents from raising construction over the disputed property. The trial court and the appellate court both dismissed the injunction application after respondents stated they would construct at their own risk and cost. The Lahore High Court examined the record and noted that the Jamabandi prime facie indicated the petitioner was a co-sharer in the disputed Khasra numbers. The Court held that while co-owners in possession may raise construction, changing the nature of joint property without partition could prejudice a co-sharer's rights. The petition was disposed of with the observation that any construction raised by the respondents after the institution of the suit would be at their own risk and cost and would not prejudice the petitioner's rights at the time of final partition.
- Whether a co-owner can be restrained from raising construction on joint property pending a suit for partition?
- Does construction raised by a co-owner during the pendency of a partition suit prejudice the rights of other co-sharers at final partition?
- Can a temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure 1908 be granted where defendants undertake to construct at their own risk and cost?
- Order XXXIX Rule 1, Code of Civil Procedure 1908
- Order XXXIX Rule 2, Code of Civil Procedure 1908
ORDER
' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that petitioner filed a suit for partition of joint Khasra Nos.687, 688 and 689 falling in Khewat No,170, Khatuni No,970. Khewat No,625, Khatuni No,1058 according to Jamabandi for the year 1998-99 Kalra Kalan. Along with the suit the petitioner also filed an application under Order XXXIX, rules 1 and 2, C.P.C. Seeking restraint from raising further construction over the property in dispute. Respondents Nos. 8 to 10 made a statement before the Trial Court that they will raise construction at their own risk and cost, accordingly the learned trial Court vide order dated 4-10-2004 dismissed the said application.
The same was assailed by the petitioner through an appeal which was also dismissed vide order dated 27-10-2004.
2. It is contended by the learned counsel for the petitioner that the petitioner is a co-owner of the property in dispute and without partition its nature should not be changed so as to prejudice the rights of the petitioner.
3. On the other hand, learned counsel for the respondents contends that respondents have disputed the title of the petitioner and the respondents being absolute owners are entitled to raise construction of their choice over the property in dispute.
4. I have considered the arguments of the learned counsel for the parties.
5. Jamabandi for the year 1998-99 placed on record, prime facie indicates that the petitioner is co- sharer in the disputed Khasra numbers. In the circumstances, any change brought in the property in dispute can cause damage to the rights of the petitioner with respect to its partition. However, if the respondents feel the necessity of raising any construction over the property in dispute in their possession, they may do so at their own risk and cost. However, any construction raised by them after the institution of the suit would not prejudice the rights of the petitioner in any manner at the time of final partition. With this observation, this petition stands disposed of.
Cited by 3 cases
- MEER MUHAMMAD vs The STATE 2013 P Cr. L J 672
- ARBAB FAZAL RAUF and another vs ARBAB SAJJAD and 6 others 2008 CLC 930
- ARBAB FAZAL-E-RAUF and another vs ARBAB SAJJAD and 6 others 2008 PLJ Peshawar 148