ALI GOHAR KHAN vs SHER AYAZ and others

' ALI HUSSAIN QAZILBASH, J.--This appeal by leave arises from the judgment of a learned Single Judge of the Peshawar High Court, dated 28-3-1981.

2. The facts are that the appellant filed a suit for issuance of a permanent injunction restraining the respondents from raising construction over land measuring 4 Kanals 13 Marlas bearing Khasra No. 2695, situate in village Baja, Tehsil Swabi, District Mardan, which was jointly owned by the parties.

The respondents while admitting that the suit land was a joint holding yet asserted that since the parties were in possession of their respective shares effected through a private partition, they were entitled to appropriate their respective share to any use of their own choice. The pleadings of the parties resulted in the framing of the following five issues: "(1) Whether the plaintiff is the joint owner in the suit land?

(2) Whether the defendants are not entitled to make `Abadi' in the suit land?

(3) Whether the defendants are in separate possession of their share in the suit land?

(4) Whether the plaintiff is entitled to the injunction prayed for by him?

(5) Relief."

3. In the course of the proceedings at the behest of the parties the learned Civil Judge appointed Haji Qamar-uz-Zaman, Advocate, as the Commissioner authorising him, inter alia, to inspect the suit land, effect partition of the property and to bring about a settlement between the parties if possible. On the receipt of the report of the Commissioner which was objected to by the parties, the trial Court recorded evidence produced by the parties and after examining the same held that the parties were in possession of their respective shares of the suit land according to the private partition and on this view of the matter dismissed the suit of the appellant vide judgment dated 9- 1-1975.

4. On appeal by the appellant the learned District Judge, Mardan, reversed the findings of the learned trial Court and vide judgment dated 6-3-1976 decreed the suit of the appellant by issuance of perpetual injunction restraining the respondents from raising any construction over the suit land till the same is partitioned by metes and bounds in accordance with law. The matter was then taken up to the High Court in revision by the respondents which was accepted and the decree and judgment of the appellate Court was set aside through the impugned judgment.

5. We have heard Mr. Abdus Samad Khan and Syed Safdar Hussain, Advocate, for and against the appeal. Mr. Abdus Samad Khan submitted that the Commissioner has no authority in law to appropriate the function of the Court to himself and effect partition of the suit land. He further submitted that since the suit land was joint holding not having yet been partitioned in accordance with law, the learned -Judge in the High Court wrongly made the report of the Commissioner as the rule of the Court which relief was neither sought by the appellant nor could be granted to the respondents in the suit brought by the appellant.

6. The sole question which needs consideration in this case is whether in the facts and circumstances of the present suit a decree for perpetual injunction can be issued. As the record stands, the respondents had purchased a portion of the land from a joint Khata and dumped stones for raising construction over the same. The report of the Commissioner though may not be germane to the pleadings of the parties but is relevant to the extent that the suit property is jointly owned by the parties and no partition in any form has yet taken place. Furthermore, the fact that the property in suit is joint and no private partition amongst the parties has taken place stands finally decided by the Civil Judge vide his order dated 9-1-1975. Therefore, it can be said without any fear of contradiction that the parties arc co-sharers in the suit property. The question now is whether a co-sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co- sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant.

7. As a result the appeal succeeds and is allowed but with no order as to costs.