KHURSHID ANWAR JALIL and 6 others vs MUHAMMAD HAFEEZ MIRZA and 14

' Muhammad Hafiz Mirza etc. Respondents, herein plaintiffs, filed suit for declaration, perpetual and permanent injunction against the present petitioner and respondents Nos.14 and 15 on 17-2-2000.

The declaration was sought on the ground that they were co-owners of the land bearing Khasra No,1765 situated within the Revenue Estate of Kotha Kalan, Rawalpindi, and the entries in Revenue Record manipulated by the petitioners/defendants in their favour showing them in possession of the suit-land, were illegal. Alongwith the suit an application under Order 39, rules 1 and 2 read with section 151, C.P.C., for the grant of stay, was also filed by the respondents/plaintiffs.

2. The suit as well as the application under Order 39, rules 1 and 2, C.P.C. Were resisted by the petitioners by filing the written statement and the reply of the application. The application for grant of stay, was dismissed by the learned Civil Judge vide his order, dated 17-9-2001, by observing that, "admittedly, the plaintiffs are in possession of their own share. Likewise the defendants are in possession of their own share. There seems no reason and justification to stop the defendants from exercising their legal rights with regard to their own share. If the plaintiffs are aggrieved of the proposed act of the defendants and they feel that the proposed change in nature of the suit-land will be detrimental to their interest, adequate relief for them is to bring suit for partition in metes and bounds. The plaintiffs have failed to make out a prima facie case for grant of temporary injunction. Refusal of temporary injunction is not likely to cause irreparable loss to the plaintiffs.

Balance of convenience also does not lean in their favour. So, the application for temporary injunction is rejected and temporarily granted status quo is hereby vacated".

3. The respondents-plaintiffs filed an appeal against the order, dated 17-9-2001 of the learned Civil Judge. The learned Additional District Judge vide his order, dated 9-4-2002 allowed the appeal and passed the restraining order against the petitioners by accepting the application filed by the respondents-plaintiffs under Order 39, rules 1 and 2, C.P.C. For the grant of stay by observing that, "it is well-established proposition of law that every joint owner is in possession of each and every inch of jointly owned property. A joint owner can file a suit for declaration with prayer of perpetual injunction if the adversary wants to lay hand on allegedly the most valuable part of this jointly owned property. Reliance in this regard is placed on Abid and others v. Nisar Ahmad -PU 2002 SC

534. During the pendency of the suit any alienation will lead to the complication and it will also lead to multifariousness of proceedings".

4. The learned counsel for the petitioners contends that the order of the Appellate Court is illegal, because the suit-land was part of 'Sham Lat Deh" and the petitioners/defendants were in possession of the land in dispute within their overall entitlement, so there was no question of the suit-land being jointly owned. Further contends that the respondents-plaintiffs were not entitled for the grant of temporary injunction because they failed to make out a prima facie case in their favour. Learned counsel for respondents controverts the stand of the petitioner.

5. I have considered the arguments of the learned counsel for the parties and perused the record. It is well-established principle of law that three necessary ingredients i,e, prima facie case, irreparable loss and A balance of convenience may co-exist in favour of the party, who wants to get the restraining order in its favour. See case of Umer Baig PLD 1970 SC 139. Every joint owner shall be deemed to be in possession of each) and every inch of joint property. The survey of the case- law would clinch the whole issue. In the case of Kashori.Lal and others v. Khair Din and others AIR 1937 Lah. 288 "co-sharer was granted temporary injunction restraining other co-sharers from building on joint land pending suit. In appeal Court finding no necessity for temporary injunction and allowing other co-sharers to build at their own risk. It was ruled that status quo ante must be maintained, and no obligation on plaintiff co-sharer to sue for partition". Similar view has been taken by the Honourable Supreme Court in the case of Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9. In the case of Ali Gohar Khan v. Sher Ayaz and others 1989 SCM R 130 dealing with the case of joint ownership of the property, the Supreme Court observed that "In case of joint immovable property, each co-sharer deemed to be interested in every inch of subject- matter irrespective of quantity of his interest. One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer. Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes and bounds". The Honourable Supreme Court followed the above-stated view consistently in the cases of Ata Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCM R 138 PLD 1988 SC 1509 and Muhammad Abid and 2 others v. Nisar Ahmad 2000 SCM R 780. The learned counsel for the petitioner hos relied on the case of Zulfiqar etc. v. Noor Muhammad etc. 2002 CLC 711 to contend that the remedy of the respondents-plaintiffs was to file the suit for the partition of the joint land and the restraining order could not have been passed by the learned Additional District Judge, by accepting the appeal. This C argument is not sustainable under the law. If a strong co- sharer being the adversory of poor and weak co-sharer takes possession or wants to lay hand on the more valuable part of the jointly owned property and enjoys of the same by alienating the same or changing character of the joint land, it cannot be said that a weak and poor joint owner of the property may file the suit for partition and till the suit is decided the persons who are in possession of the property may enjoy the same by alienating or changing the character or taking the possession of more valuable property and throw his adversary in the ditches Nalas or baran land by taking commercial valuable land abutting on the road side, or more fertile land. This cannot be allowed under the principle of equity and justice. In these circumstances of the case and upon the touchstone of the case-law, I am of the firm opinion that the order of the learned Civil Judge, dated 17-9-2001 through which the application under Order 39, rules 1 and 2 read with section 151, filed by the respondent, for grant of temporary injunction was illegal. All the ingredients for grant of temporary injunction i,e, prima facie case, irreparable loss and balance of convenience, are co-exist in favour of the respondents-plaintiffs. There may be multiplicity of the proceeding if the restraining order in favour of the respondents and against the petitioners restraining the defendants/ petitioners, from alienating the joint property in dispute, would have not been passed by the learned Additional District Judge. The order of learned Civil Judge has been rightly set aside by the learned Additional District Judge by accepting the appeal. No irregularity or illegality has been committed by the Court of Appeal by accepting the appeal through the impugned order, dated 9-4-2002.

'Resultantly, this civil revision fails and dismissed.