This civil revision assails the judgments and decrees dated 20.3.2003 and 10.5.2003 passed by the learned Civil Judge and the learned Additional District Judge Gujrat, dismissing the suit and appeal of the petitioners.
2. A short factual background of the case is that one Nawab Khan filed a suit for permanent injunction against the respondents praying that the respondents may permanently be restrained from raising any kind of construction over joint land measuring 1 Kanal 11 Marlas situated in Mauzia Narowali, Tehsil and District Gujrat, in their possession and thus, not to change nature of the property, pending the suit. Nawab Khan died and in his place petitioners were impleaded as plaintiffs, before the learned trial Court. Petitioners asserted in their plaint that the, land Bearing Khasras Nos, 501/min and 502/min are jointly owned by the parties and are in possession of the respondents. The land subject of these Khasras Nos, was claimed to be agricultural and it was pleaded that the respondents by raising constructing over it want to change the character of the land.
3. Respondents being defendants in the suit, denied the claim of the petitioners in their plaint, by fling their written statement wherein they raised certain preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, appraised the evidence and after hearing the parties, dismissed the suit of the petitioners vide his judgment and decree dated 20.3.2003.
4. The petitioners aggrieved of the decision of the trial Court dated 20.3.2003 filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed vide judgment and decree dated 10.5.2003. The petitioners filed civil revision before this Court for annulment of concurrent judgments and decrees of the two Courts below which has been now taken up for final determination.
5. The learned counsel for the petitioners submits that the land in dispute is agricultural but respondents are forcibly raising constructions thereover but thy have no such right and the two Courts below have incorrectly non-suited the petitioners. The learned counsel for the petitioners further elaborated his arguments by saying that the land subject of litigation is joint and has not since been partitioned. and cannot be utilized by any of the co-sharers to the exclusion of the others. It is also the case of the petitioners that respondents must before raising any construction, seek partition of the joint holding, without which they cannot raise any construction. He in support of his submissions referred to the judgment in the case of Ali Gohar Khan vs. Sher Ayaz and others (1989 SCM R 130).
6. Conversely, the learned counsel for the respondents supported the judgments and decrees of the two Courts below, refuted the assertions of the petitioners, and urged that neither the land in question is agricultural nor the petitioners have any right to file a suit for permanent injunction against a co-sharer, who is in lawful possession of the property, using it since decades. He further contends that the petitioners if at all are aggrieved, they must seek partition of joint holding and instead, they cannot file a suit for permanent injunction against a co-sharer.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Joint nature of the property and exclusive possession of the respondents over the disputed land, is not denied by any of the parties. The only claim of the petitioners is that the respondents should not change nature of the property by converting agricultural land into building site. Ex. P. 4. copy of khasra girdawari produced by the petitioners themselves shows that khasra numbers subject of suit, are not agricultural in nature but have been recorded as "Ghair Mumkan Ahata" and "house". These entries in khasra girdwari which related to the year 1995 were further incorporated in the jamabandi for the year 1997-1998 and these building sites, in khasra numbers are shown alike Girdawaries, noted above. Petitioner's own documents negate their stand that the respondents want to change character of the land in question. The land subject of litigation is already constructed and undeniably, in possession of the respondents, as co-sharers.
8. Predecessor of the petitioners had earlier filed a suit for declaration with permanent injunction wherein he claimed that the respondents had already sold out their share, out of joint khata and in this manner they have no right to raise. construction. This suit though was withdrawn on 28.7.1998 and the present suit was filed before withdrawal on 24.7.1998 yet its institution was not mentioned in the plaint in hand, which shows that the petitioners did not approach the Court with clean hands and only want undo constructions of respondents, one way of the other.
9. In the judgment of Ali Gohar Khan (supra) it was held that. one co-sharer cannot be allowed to act m a manner which constitute an invasion on the rights of the other co-sharer and thus cannot be allowed to change the nature of the property in his possession, unless partition takes place by mets and bounds, In this precedent case it was held that a co-sharer in the possession of agricultural land cannot raise construction, to change character of the land but in the case in hand, as observed above, property subject of litigation is not agricultural land and consists of construction in form of Ahata and house. The land, which is already constructed, cannot be said that by raising any more construction, its nature will be changed. In this manner suit of the petitioners cannot be decreed on the basis that the respondents are trying to change the nature of the land. The respondents are not denied to be co-sharer in possession of the property and they have a lawful right to use and utilize it, subject to ultimate partition amongst the co-shares.
Issuance of injunction prayed would amount to invasion of the rights of the I others co-shares, which is not permissible under law. The petitioners if are really aggrieved of the action mentioned in the plaint, may have a resort to i partition proceedings and have their share separated. My this view gets' support from the judgment in the case of Zardaz Khan vs. Mst. Sofia Begum (1998 CLC 2006).
10. For what has been discussed above. scan of evidence, analysis of judgments of the two Courts below and law applicable, it is clear that the I judgments of the two Courts below are absolutely in consonance with the I evidence on the file which has not been shown to have misread or non- read. in absence of which no interference in revisional jurisdiction of this Court is permissible under the law. Judgments impugned do not suffer from any I illegality or irregularity. There is no justifiable ground for interference by this Court. This revision petition has no substance in it and is accordingly dismissed, with no order as to costs.