Haji SHAHJAHAN KHAN vs AURANG ZEB KHAN and another
This petition for leave to appeal challenged a Peshawar High Court order that set aside an interim stay granted by a District Judge, thereby restoring a trial court's refusal to grant a temporary injunction. The dispute arose between co-sharers of a joint land parcel (Khasra No. 3081), where the respondent sought to construct a house on a portion in his possession. The petitioner, a co-sharer, sought an injunction to restrain construction pending a formal partition of the land. The High Court found that the land had historically been subject to numerous sales and construction activities, establishing that the specific portion in question had acquired a distinct identity. Consequently, the High Court allowed the construction subject to the respondent furnishing security to remove the structure should the petitioner succeed in the main suit. The Supreme Court upheld this decision, finding it consistent with established legal principles regarding interim injunctions in co-ownership disputes and noting that the High Court had adequately safeguarded the interests of both parties. The petition was accordingly dismissed.
- Can a co-sharer be restrained from constructing on a portion of joint land that has historically been treated as distinct and separate?
- Is it appropriate for a court to allow construction on disputed joint land subject to the furnishing of security?
- Does the existence of prior sales and construction on portions of joint land justify the refusal of an injunction against further construction by a co-sharer?
ORDER
' FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for in this petition against the judgment and order of Peshawar High Court, Circuit Bench, Abbottabad dated 7-7-1994 whereby interim stay granted by the District Judge was set aside and the order of the trial Court refusing to grant temporary injunction was restored.
2. Respondent is a co-sharer in Khasra No,3081 which total measures 34 Kanals 7 Marlas. He wanted to construct a house on a portion of it in his possession. Petitioner objected to such construction and filed the present suit for injunction on the ground that the property is jointly owned by the parties, therefore, respondent/defendant be restrained from raising any construction till such time that regular partition of the land takes place. He also made an application for temporary injunction. The application for temporary injunction was disallowed by the learned trial Judge on 12-12-1993. In appeal filed by the petitioner/plaintiff the learned District Judge set aside the trial Court order and granted temporary injunction.
3. Respondent/defendant aggrieved by the judgment and order of the learned District Judge approached the High Court in Civil Revision No,215 of 1994. The learned High Court found that in the period starting from 1973 till 1992 numerous mutations of "sale have been sanctioned of small pieces of land, out of the suit Khasra number for construction purposes and after carving out Tatimnas houses have been constructed on such land. That even portion of the land in possession of the petitioner which measures 10 Marlas was earlier sold by Muhammad Feroz one of the co- owners to Muhammad Sajjad Khan who later sold it to him. This land has its own identity from rest of the land in suit. On such finding the revision petition was accepted, the judgment and order of the learned District Judge was set aside. However, direction was given to the petitioner to furnish security to the effect that he would remove the construction in case of succession of the respondent regarding the suit land.
4. We have heard the learned counsel for the petitioner and have perused the judgments of the lower Courts. We are not inclined to interfere with the interim order passed by the learned High Court which is in conformity with the law laid down by this Court in such like cases and in which sufficient safeguard has been made of the interest of both the parties. This petition is, therefore, dismissed.
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- MUHAMMAD ABID and 2 others vs NISAR AHMED 2000 SCMR 780
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