IJAZ AHMAD Versus INAYAT HUSSAIN,

This revision petition has arisen out of a suit instituted by Inayat Hussain and Siraj-ud-Din respondents Nos. 1 and 2 against the petitioners and the Collector, Gujrat, respondent No.3 for a declaration that they alongwith Sh. Ijaz Ahmad petitioner No.1 are joint owners of land comprising Khasra Nos. 4237/1, 4237/2/1 and 4237/2/2 measuring 12 Kanals 13 Marlas situated in the revenue estate of Dinga, Tehsil Kharian, District Gujrat, and that Muhammad Hussain and Nazir Ahmad petitioners, who have illegally occupied a portion of the joint land have no right or interest in the said land with a consequential relief restraining Sh. Ijaz Ahmad petitioner No.1 from utilizing the entire front portion of the aforementioned joint land by raising construction over it. The suit has been contested by the petitioners, who have denied the respondents' contention that the suit land is jointly owned by them and petitioner No.l. According to the petitioners land comprising Khasra No.4237/1 is exclusively owned by Sh. Ijaz Ahmad petitioner No.1, which fact was established in the earlier suit filed by the respondents against petitioner No. 1, which, however, was withdrawn by the respondents with permission to file a fresh suit. It has also been contended by the petitioners that the second suit instituted by the respondents is not maintainable as the condition attached to the permission granted to them to institute the suit i.e. the respondents would pay Rs.200 as costs before filing the suit, has not been fulfilled.

2. Alongwith the plaint the respondents filed an application under Order XXXIX, rules 1 and 2, C.P.C. praying for an injunction order restraining the petitioners from raising any construction over the land comprising Khasra No. 4237/1 during the pendency of the suit. This application too was contested by the petitioners. The learned trial Court after hearing the parties counsel dismissed the aforementioned application on 27-2-1982. The respondent filed an appeal against the above order of the learned trial Court, which was allowed on 2-6-1982. Feeling aggrieved by order of the appellate Court the petitioners have filed the present revision petition in this Court.

3. Learned counsel for the petitioners has submitted that land comprising Khasra No. 4237/1 was purchased by Sh. Ijaz Ahmad from Fateh Muhammad by means of registered sale-deed, dated 25-8-1972. The aforementioned land was acquired by Fateh Muhammad from the Rehabilitation Department under an allotment order and Sh. Ijaz Ahmad petitioner stepped into his shoes after purchasing the land from him. He also acquired the possession of the land which fact in duly reflected by the entries in the Register Haqdaran Zamin of 1976-77. Sh.Ijaz Ahmad petitioner after acquiring the possession oT the land had also constructed shops and a boundary wall over it. In 1981 respondents Nos.1 and 2 instituted a suit against Sh. Ijaz Ahmad petitioner No.1 seeking declaration that they were owners of land comprising Khasras Nos. 4237/2/1 and 4237/2/2 and that petitioner No.1 should be restrained from interfering with .their possession over the said land. The respondents also moved the trial Court for issuing temporary injunction against petitioner No.1 restraining him from interfering with their possession over the land during the pendency of the suit Sh. Ijaz Ahmad petitioner opposed the respondents' application and pleaded that he was owner in possession of land comprising Khasra No. 4237/1 and that he was not interfering with the respondents' possession over land comprising Khasras Nos. 4237/2 and 4237/2/2. The respondents' application for temporary injunction was rejected by the learned trial Court on 17-3-1981 and their appeal against the above order also failed when it was dismissed by the Additional District Judge on 7-7-1981. The respondents, thereafter, submitted an application in the trial Court on 27-10-1981 for withdrawal of the suit with permission to institute a fresh suit on the ground that their suit was likely to fail in view of the charge brought about in the character of the suit land. Their application was allowed by the trial Court and they were permitted to institute a fresh suit on payment of 'Rs.200 as costs. According to the learned counsel for the petitioners the respondents, present suit was not maintainable as they have failed to pay the costs to the petitioners before or after the institution of the suit. In support of his above contention he has relied on Ghulam Akbar Khan v. Ghulam Sarwar Khan and another P L D 1953 Lah. 597. According to the learned counsel for the petitioners the respondents have failed to make out a prima facie case in view of the above lacuna and as such are not entitled to interim relief in the form of injunction order prayed for by them.

4. Learned counsel for the petitioners has further contended that the land comprising Khasra No. 4237/1 is not jointly owned by Sh. Ijaz Ahmad petitioner and Inayat Hussain and Siraj Din respondents because it has been shown as a separate and distinct field in the Aks Shajra copy whereof has been placed by the petitioners on the file. Learned counsel has assailed the finding of the learned Additional District Judge to the effect that the main Khasra No. 4237 has not been partitioned. According to him, the fact that Khasra No. 4237 was allotted to three persons not in equal shares but on the basis of different areas, would be sufficient to show that the main Khasra had been divided into three unequal parts by the Rehabilitation Department while making allotment. The report of the Patwari that Khasra No. 4237/1 was not shown separately in the Aks Shajra, relied upon by the learned Additional District Judge, or that the division of the main Khasra number into three parts was not given effect to in the revenue record, were of no consequence because the allocation of separate number to the piece of land allotted to each allottee, had for all intents and purposes broken the joint character of the land.

5. Learned counsel for the respondents, on the other hand, have supported the impugned order of the learned Additional District Judge and have contended that the land comprising Khasra No. 4237/1 in the possession of Sh. Ijaz Ahmad petitioner is jointly owned by him and Inayat Hussain and Siraj Din respondents; Sh. Ijaz Ahmad is not entitled to raise any construction on the joint land; the entries in the revenue record clearly show that land comprising Khasra Nos. 4237/1, 4237/2/1 and 4237/2/2 is joint land as it is included in one Khewat i.e. 731. Learned counsel for the respondents have relied on Muhammad Yousuf v. Sikandar P L D 1970 Pesh. 160 in support of their contention that the inclusion of more than one Khasra number in a Khata does not prove that there are as many properties in the Khata as there are Khasra numbers. As regards the copy of the Aks Shajra filed by the petitioners in the trial Court it has been contended that it is a forged document in view of the Patwari's report that Khasra No. 4237 has been shown as one field in the Aks Shajra and its division into three parcels of land bearing Khasra Nos. 4237/2/1, 4237/2/2 and 9237/1 has not been shown there. Learned counsel for the respondents have conceded that they had withdrawn their earlier suit with the permission of the Court and that they were allowed to file a fresh suit on payment of Rs.200 as costs. Non-payment of the said costs, however, does not affect the merit of the case, as the suit cannot be dismissed on that score as was held by the Supreme Court in Abdul Rashid v. S.M. Lalita Roy P L D 1959 S C 287. According to the learned counsel for the respondents a prima facie case was made out. The learned appellate Court had properly exercised its discretion in granting interim relief to the respondent in the form of temporary injunction restraining the petitioners from raising construction over the joint property as a prima facie case had been made out by the respondents. A co-sharer in possession of joint property is not entitled to use it in a manner as to change its character. Reliance has been placed by the learned counsel on a decision in Kishori Lal and others v. Khair Din and others A I R 1937 Lah. 288.

6. I have carefully considered the submissions made by the parties' counsel and have perused the available record. Non-payment of costs/ by the respondents before the institution of the suit, which was a condition precedent for filing fresh suit is a matter which cannot be lost sight of while considering the respondents prayer for an interim relief in the suit. The effect of non-fulfilment of the condition imposed by the Court while allowing permission to the plaintiff to withdraw a suit before filing a fresh suit has been considered in Abdul Rashid case cited by the learned counsel for the respondents. It has been observed that unless the condition imposed by the Court is complied with by the plaintiff there is no proper suit before the Court and the defendant in such a case is entitled to demand that the plaintiff should comply with the terms on which permission to withdraw the earlier suit was given if he wishes to proceed with the new suit. Admittedly the respondents have not paid the costs to the petitioners as earlier ordered by the Court before filing the suit nor have they deposited it in the Court after objection was raised by the petitioners. In fact the respondents have not even made any reference to the earlier order by which they withdrew from the suit and were allowed to institute fresh suit on payment of costs in the plaint filed in the present suit. In view of the above legal lacuna it cannot be said that the respondents had made out a prima facie case entitling them to interim relief prayed for by them.

7. The question of joint ownership of the land comprising Khasra No.4237/1 in possession of Sh. Ijaz Ahmad petitioner No.1 cannot be finally determined at this stage by making reference to some documents placed by the parties on the file. The learned Additional District Judge should have avoided expression of firm opinion on the above question while deciding the respondents' appeal. It was not proper for him to have ignored copy of Aks Shajra produced by the petitioners merely on the basis of Patwari's report that the Aks Shajra in his custody did not show that Khasra No. 4237 had been divided into three parts and that no Tatimma of Khasra No. 4237/1 was prepared when the mutation of sale was sanctioned in favour of Sh. Ijaz Ahmad petitioner No. 1 because it was matter which could be determined only after the parties had been allowed opportunity to produce evidence in support of their respective contentions. The mere fact that the division of Khasra No. 4237 into three parts bearing Nos. 4237/1, 4237/2/1 and 4237/2/2 had not been given effect to in the revenue record though the above Khasra numbers were separately allotted to three persons by the Rehabilitation Department, could not be considered as the determining factor regarding B the joint ownership of the land comprising the said Khasra number. According to the entries in the copy of Register Haqdaran of year 1976-77, which has been placed on the file land comprising Khasra Nos. 4237/1, 4237/2/1 and 4237/2/2 is owned by the Central Government while its possession is with the persons to whom it was allotted. Khasra No. 4237/1 is shown in the possession of Sh. Ijaz Ahmad petitioner. Whether Inayat Hussain and Siraj Din respondents have also any right or interest in the aforementioned land has yet to be determined. Sh. Ijaz Ahmad petitioner's right to use the land in his possession for construction purposes cannot be denied merely on the respondents' assertion that the said land is jointly owned by him with them. The case of Kishori Lal relied upon by the learned counsel for the respondents, where a co-sharer was granted injunction restraining the other co-sharers from building on joint land during the pendency of the suit, is distinguishable on facts because in the case under consideration joint ownership of the disputed piece of land is not an admitted fact. Sh. Ijaz Ahmad petitioner claims that he is the exclusiveowner in possession of the land comprising Khasra No. 4237/1. His right to use the aforementioned land in any manner he likes cannot bel controlled simply because the respondents Nos. 1 and 2 contend that they are also co-owners of the said land.

The upshot of the above discussion is that the impugned order passed by the learned Additional District Judge cannot be sustained on facts and law. This revision petition filed by the petitioners is accordingly allowed and the aforementioned order is set aside. Parties are, however, left to bear their own costs.

H.B.T. Revision granted.