MUHAMMAD ABID and 2 others vs NISAR AHMED

ORDER

1. ' WAJIHUDDIN AHMED J.----The respondent, who was plaintiff in the relevant suit, sought a declaratory decree, against the petitioners (defendants) regarding his entitlement to own and possess the suit property jointly with the defendants and a permanent injunction, restraining such defendants from forcibly possessing the disputed property or disturbing the plaintiff's possession and/or raising constructions on or otherwise altering the nature of the property etc. The suit property comprised of land, measuring 369 Kanals and 9 Marlas, situated in Gujar Khan, a part whereof was stated to have been purchased by the defendants who, allegedly, were reported to be raising constructions on a portion of their choice, more valuable than the rest of the property, without getting the joint property duly partitioned. The defendants, entering defence, pleaded that the property in question had already been divided through a private partition, that the defendants had duly secured possession of the part purchased by them and that to the knowledge and in the presence of the plaintiff the defendants had dug foundations and taken preliminary steps to raise constructions.

2. ' Accompanying the plaint was an application for interim injunction, seeking restraint of the defendants from changing the character of the suit land by constructing thereon. Such application was dismissed by the trial Court on 16-5-1997, appeal there against failing on 5-1-1998. This led to a civil revision, at the instance of the plaintiff, before the Lahore High Court at its Rawalpindi Bench.

3. Such revision was allowed and the interim injunction sought by the plaintiff was issued by the High Court on 25-3-1999. Now, the defendants have preferred the present leave petition.

4. ' Before us, it is contended that while the plaintiff is in exclusive possession of the land, falling within plaintiff's entitlement of ten Kanals and fifteen Marlas, he wants to deprive the defendants of the defendants' share in the said land. It is also urged that, at best, the plaintiff could have filed a suit for partition and sought his own portion to be determined rather than claiming the entire land on the basis of a purported joint holding when, in actual fact, there had already been a private partition. With a view to safeguarding the pendente lite interest of the plaintiff, the defendants have shown their willingness before us to give an undertaking to demolish the construction raised, in the meantime, if and when the plaintiff succeeds in the suit. The precedents cited and relied upon from both sides before the High Court and the Courts below are:--

(i) Afsar Khan and others v. Mst. Khanum Jan and others (1983 SCM R 273).

(ii) Muhammad Daud v. Muhammad Ayub (1985 SCM R 1966).

(iii) Ali Gohar Khan v. Sher Ayaz (1989 SCM R 130).

(iv) Paiker Maqsood v. Muhammad Amin (1991 M LD 106).

(v) Atta Muhammad v. Manzoor Ahmad (1992 M LD 550).

(vi) Akhtar Nawaz Khan v. Danial Khan (1995 PSC 207).

(vii) Shahjahan Khan v. Aurangzeb Khan (PLD 1995 Supreme Court 462).

(viii) Zakiya Khatoon v. Roomi Enterprises (1995 SCM R 753).

5. There is some force in the defendant/ petitioners' argument that if the plaintiff's case was that the joint property had not been partitioned, or that the defendants were improperly relying upon a non-existent private partition, a more adequate relief could be sought in the way of asking for partition of the disputed land in metes and bounds. A corollary argument is that the plaintiff's suit has been mala fide because, by seeking the relief that the plaintiff had sought, he was both approbating and reprobating, at the same time, inasmuch as he retained his exclusive possession in a part of the land and was disposed to preclude the defendants from enjoying that, which the defendants had purchased and of which a specific reference stood made in the deed of sale under which the latter claimed. An indefinite blocking of the use of such property, by way of a temporary injunction, is also a consideration, which negatively reflects in such matters though never to under-cut rights in the way of title, which vests in joint owners in each part and parcel of the common property. Still, these pleas, when put in juxtaposition with the prospect of raising not easily reversible constructions with third party interests possibly intervening, lose much of their weight because such developments, besides being time consuming, should lead also to multiplication of proceedings. Even so, where plaintiff neither has a prima facie case, nor would suffer irreparable loss nor balance of convenience lies in his favour, as covered by Order XXXIX rules 1 and 2 C.P.C. Nor the interests of justice, in contemplation of section 151, C.P.C. So warrant, it is a more appropriate exercise of discre tion to refuse rather than allow the interim relief.

6. ' Hearing the learned counsel for the defendants, however, we are of the view that if there was a private deed of partition such ought to have been produced by the defendants, whereupon the relevant Court would have-examined the veracity of the same and decided the question of interim injunction in a broader perspective. Alternatively, if the defendants viewed C the plaintiff's suit to be a circumvention of due process, the defendants themselves could have instituted the necessary suit for partition. It is not yet clear as to how the defendants came to be in possession of a specific portion, which the plaintiff terms to be the most valuable part of the land or even whether the defendants are at all, lawfully, in such possession, as claimed. On ifs part, the High Court has correctly found in terms of Muhammad Daud v. Muhammad Ayub (1985 SCM R 1966) ibid., that a mere recital in the sale-deed, as regards delivery of possession, in itself is no effective proof of such delivery. Regarding the undertaking, offered on the part of the defendants, to demolish the constructions raised by them, if and when the suit of the plaintiff is decreed, reliance has been placed and reference is made to Afsar Khan v. Khanum Jan, Shahjahan Khan v. Aurang Zeb Khan and Zakiya Khatoon v. Roomi Enterprises (supra). Those were cases, where in relation to joint holdings, but apparently undisputed physical possessions, different kinds of conditions were imposed in allowing continuations of ostensibly harmless constructions, each case presenting its own peculiar circumstances because, where discretion vests in a Court, such can be exercised in different but just and lawful ways.

7. ' In the circusmtances of this case, we are, however, of the view that the High Court, correctly, exercised its revisional powers under section 115, C.P.C. And duly fashioned the discretion vesting in the Courts below, which, to say the least, was illegally exercised. Contextually, as to such exercise at the revisional level, we may cause to observe that out of Fazal Din v. Umar Bibi and Paiker Maqsood v. Muhammad Amin, above, the latter case was correctly decided because the first, in refusing to allow invocation of revisional powers under section 115, C.P.C. Unduly relied on the frame suit, not being for partition, something blame for the choice of which ought to have gone to counsel rather than to the party.

8. In the instant proceedings, the plaintiff did have a prima facie case, revealing, inter alia, a joint and possibly unpartitioned property, of which the defendants wanted to lay hands on, allegedly, the most valuable part and once undisturbed construction thereon were allowed to be raised and/on third party interests intervened, such facts, in themselves, would have led to multifariousness of proceedings even if the defendants' undertaking, as regards the imminent construction was accepted. As already stated, these, essentially, are discretionary matters but discretion vesting in Courts has to be exercised judiciously and equitably, ensuring, all the time, that the twain of law and justice are adequately applied and administered. Looking to the order of the High Court from such angles, we find no fault with it. The leave petition is disallowed but each side would be free, either to prove an already subsisting private partition in the case or, alternatively, seek necessary partition, so that the controversy between the parties is brought to a quick and effective conclusion. Besides, we are also inclined to direct the learned Civil Judge, before whom the suit is pending, to expedite the 'hearing and dispose of the entire lis within a period of six months from the date, a copy of this order is placed before him. In the same and no other way a suit of partition, if any, instituted by either side would be dealt by the concerned Court.

9. ' Leave petition is dismissed with the foregoing observations.