' This is a revision petition from the decision of Mr. Muhammad Azim Khan Niazi, the learned Additional District Judge, Lahore in M. C. A. No, 128 of 1979, affirming the order dated 31-5-1979 passed by the trial Court on an application under Order XXXIX, rules 1 and 2 read with section 151, C.
P. C. Filed by the plaintiff-respondent along with her plaint directing the maintenance of status quo pending the decision of the suit.
2. The case of the plaintiff-respondent, as set up in her plaint, is that residential property bearing Survey No, S-1-92-S-1 situated at Nisbat Road (an erstwhile evacuee property) was provisionally transferred under the relevant Settlement Scheme to one Hakeem Mahmood Hassan of Lahore on 9-6-1960 who later on relinquished all his rights and interests therein in favour of plaintiff and defendant No, 1 in the original plaint, in equal shares and as a result thereof Permanent Transfer Deed, regarding the same property had been duly issued in their names jointly by the Settlement Department. She further averred in her plaint that despite the jointness of the property, defendant petitioner No, 1 allegedly sold out a specific portion equivalent to one-half of the whole property to defendant-petitioner No, 2 through a registered sale-deed executed on 15-2-1974. She further claimed that the aforesaid deed of sale was void, illegal and ineffective against the rights of the plaintiffs solely on the ground that defendant No, 1 had no authority under the law to sell any specified portion of the joint dwelling house to defendant No, 2 or anyone else. According to her, the alleged sale did not confer any title upon defendant No, 2, the vendee. On the basis of aforesaid averments contained in the plaint the plaintiff asked for declaration to the effect that the aforesaid sale deed executed in favour of defendant No, 2 being illegal, unlawful, void and ineffective qua the rights of the plaintiff did not confer any right or title on her and further suit for permanent injunction restraining the defendants from alienating the property in dispute or interfering in the possession of the plaintiff. An application under Order XXXIX, rules 1 and 2, C. P. C. Praying for the issuance of temporary injunction restraining the defendants, from interfering in the possession of the plaintiff over the suit land and from alienating the same till the final decision of the suit was also filed along with the plaint. The learned trial Court having found all the necessary ingredients in favour of the plaintiff/respondent, accepted her application vide dated 31-5-1979. The defendants challenged the correctness and legality of that order of the trial Court in appeal where the learned Additional District Judge, Lahore, having found no force in appeal, dismissed the same and maintained the order of the trial Court, vide judgment dated 18-11-1979. Hence this revision petition. The precise legal questions involved in this revision petition are :-
(1) Whether a co-owner in possession of an undivided property may validly transfer specific occupied portion or in other words whether a transferee from a co-sharer of a specific part of joint property becomes the owner of such property and is entitled to retain his possession over such portion in his own right ; and
(ii) Whether a temporary injunction under Order XXXIX, rules 1 and 2, C. P. C. May be issued against such transferee at the instance, of other co-owner who is equally in possession and employment of a portion of undivided property to the extent of his right ?
' To resolve these questions formulated above, the relevant law in this regard, is to be seen and swa llowed. Therefore, for the correct appreciation of the above controversial points, it would be advantageous to make reference to section 44 of the Transfer of Property Act and the case-law cited at the bar. Section 44 of the Transfer of Property Act reads as under :- "Section 44.-Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein the tranfer acquires, as to such share or interest, and so far as is necessary to give effect the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
' Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
3. I have heard the learned counsel at length and have gone through the record meticulously and inestimably. The learned trial Court while accepting the application of plaintiff/respondent was swa yed by a proposition that until a joint property is partitioned by a competent Court, no specific portion can be alienated by a co-sharer, even if he is in exclusive possession of such portion.
Reliance in this regard was placed on case law propounded in Adit Singh v. Rai Bindayal Sahu (1) and Kashi Nath Tewari and another v. Makchhed Tewari and others (2). Similarly the learned Additional District Judge being influenced with the above proposition, came to a view that since the property in question had not been partitioned through a legal process and the respondent was in possession of a specific portion of it as a co-sharer, both the parties have raised a serious question of law and facts and the respondent had a good ground for grant of temporary injunction.
4. The learned counsel for the appellants vehemently contended that the above proposition propounded by the learned Courts below was in total disregard to the well-celebrated proposition of law laid down by superior Courts of this country in a chain of authorities on the point at issue and by allowing an injunctive relief against the transferee, they have invented a fanciful rule of their own and acted on its basis. He strenuously argued that if instead of remaining himself in possession, a co-sharer transferred the possession of his occupied portion out of the joint property, the transferee would have the same rights and could not be disturbed by other co-sharers till the final partition took place. He further submitted that in such a case, the other co-sharers would only be entitled to a declaration that the possession of the transferee over the specified portion of the joint property would be that of a co-sharer subject to adjustment at the time of actual partition by metes and bounds between all the co-owners. On the basis of this legal assumption he too objected to the maintainability of the suit itself. He further submitted that if partition of the property as alleged by the present petitioners could not be established at the trial even then in such a case, in the light of above legal proposition, the transferee petitioner No, 2 would be entitled to retain the possession over her specific occupied portion out of the alleged joint property subject to right of adjustment of other co-owners and the sale of specific portion could not be annulled on account of jointness of property. He submitted that the impugned orders being highly capricious and arbitrary were amenable to the revisional jurisdiction of this Court. According to him, an alienation by a co-owner of his occupied specific portion within the extent of his share will not jeopardize
(1) AIR 1936 All. 456 (2) AIR 1939 All. 504 the possession of other co-owners and such a transaction of alienation cannot be held to be void and of no legal effect on the basis of any canon of law. In support of his above contentions, he placed reliance on the following case-law :- "(i) Sayed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh.
26.
(ii) Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9.
(iii) Muhammad Shaft and others v. Mirza and others PLD 1959 Lah.
398.
(iv) Muhammad v. Atta Muhammah etc. PLD 1975 Lah 406.
(v) Sukh Dev v. Parsi and others AIR 1940 Lah.
473.
(vi) Shamsud Din Khan and others v. Shams-uz-Zaman and others 1970 D L C 684.
5. In Sayed Jamal Shah v. Abdul Qadir Shah and others (1) Muhammad Shafi, J. After making reliance on the view expressed in Muhammad Afzal Khan v. Abdul-ur-Rehman and others (2), Sukh Devi v. Parsi and others and also considering the view of the Allahabad High Court, relied on by the trial Court, affirmed the most celebrated principle contained in section 44 of the Transfer of Property Act as under :- "I consequently hold that a person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation."
6. In Sukh Dev v. Parsi and others the Division Bench of Lahore High Court ruled as under :- "It is well settled that if a co-sharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition.
' As a result, it has been held that a co-sharer who is in such possession of any portion of joint khata can transfer that portion subject to adjustment of the right of the other co-sharers at the time of partition Other co-sharers' rights will be sufficiently safe-guarded if they are granted a decree by giving him a declaration that the possession of the transferees in the lands in dispute will be that of co-sharers, subject to adjustment at the time of partition."
6-A. In Muhammad Muzaffar Khan v. Muhammad Yusuf Khan the same question, i,e, whether a person who has purchased specific Field Numbers from a co-sharer in a joint khata, becomes a co-sharer in the property, came for consideration before the Supreme Court and the same was answered by their Lordships, as under :- "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownesship rights in the joint property,
(1) PLD 1955 Pesh. 26 (2) AIR. 1932 P C 235 the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided khata, does not become a co-sharer in that khata."
7. In Muhammad Shafi and others v. Mirza and others the Division Bench, while relying upon the above-noted case-law, held as under :-- "A co-sharer is not legally competent to alienate in excess of his share in the joint property, even though he may be in possession of the whole property. The mere fact that in law a co-sharer is deemed to have a share in every fragment of the undivided property does not entitle him to alienate any interest in the property in excess of his share which he owns in the property [p. 402]A ' Where a co-sharer had alienated his entire share in joint property Held, the co-sharer was not competent to make a gift out of the remaining joint property and the donees did not acquire any right in the property gifted. [p. 4021B ' The transferee from a co-sharer is clothed with the same rights as the co-sharer has in the property, but if the co-sharer transfers in excess of his share in the property, then the transferee will step into the shoes of the co-sharer only to 'the extent of the share which the transferor owns in the whole of the property and no more. It follows that a co-sharer is not legally competent to transfer in excess of his share in the property. [p. 402]C"
8. In Muhammad v. Atta Muhammad etc. The learned Single Judge of this Court while making reliance on the observation in Muhammad Muzaffar. Khan v. Muhammad Yusuf Khan concluded that a vendee from co-sharer of specific khasra number in joint khata becomes a co-sharer in the said khata. A sale by a co-sharer of his one-fourth share in joint ownership was held valid and a decree of permanent injunction granted by the lower Courts against vendee was held not maintainable for a vendee is entitled to retain possession of entire Khasra Number as a co-sharer in place of vendee co-sharer and status quo ante is to continue till such time as joint Khata's partition. In this case the facts were that Khasra No, 3483, Khatauni No, 641 and Khata No, 189 as per jamabandi for the year 1959-60, was held by a co-owner and the same was alienated through sale by him to a vendee. Upon this the other co-owners brought a suit for permanent injunction, restraining the vendee from interfering with their possession on the ground that vendor/co-owner was an owner of one-fourth share in that particular khsara number and the sale in case of one- fourth share was void and ineffective as against their right. The case was decided in the light of the observation made above.
9. In Shams-ud-Din Khan and another v. Shams Uz-Zaman and others the Division Bench of Dacca High Court made the following obiter dicta: "It is true that if a suit itself is not maintainable and if the Courts have no jurisdiction to entertain the suit then the Court could neither give the final decision nor the interlocutory decision in the matter."
10. On the other hand the learned counsel for the respondents without making any reference to any other case-law, except that which had been referred and relied on by the lower Courts, in support of his submissions addressed the arguments that the transferee from a co-sharer of a specified portion out of a joint property acquired no title or interest therein as against other co-owners. While banking upon second paragraph of section 44 of Transfer of Property Act, he asserted that transferee of a dwelling house of an undivided family could not be put into joint possession. On the basis of this legal assumption he tried to build up a case that in the instant case the vendor was a member of the undivided family and the transferee of her share would not be deemed to be entitled to joint possession or other common or part enjoyment of the house. The contention that a transferee of a specific occupied portion does not acquire any right or interest therein is sufficiently met by a series of decisions referred to above given by the superior Courts of this Country.
11. Each co-owner is, in theory, interested in every portion of join property, and each 'has the right irrespective of the quantity or extent o his interest to be in possession of every part and parcel of the property jointly with the other. But it does not mean that every use of the join property by one co-owner renders him liable to a legal action. Before granting an injunction at the instance of one co-owner against the other, the Court should weigh the amount of substantial mischief done o threatened to the plaintiff and compare it with that which the injunction is granted upon the defendant co-sharer. In the instant case the learned counsel for the respondent co-owner frankly conceded that the respondent had been enjoying an uninterrupted and peaceful possession over the portion of the joint property to the utter exclusion of the petitioners to the extent of her entitlement. However he has submitted that the dispute in the present proceedings related to the enjoyment of the possession of remaining one-half which had been the subject-matter of disputed sale on behalf of defendant-petitioner No, 1 in favour of defendant-petitioner No, 2.
12. As stated earlier, a transferee from a co-sharer in possession steps into the shoes of his transferor and constitutes himself a joint owner having right to be in joint possession with the other co-owners and t be in enjoyment of the proportionate advantages arising from such possession proportionate to the extent of the share in the properties. The position of such transferee cannot be that of a trespasser but only o co-sharer subject to adjustment at the time of actual partitioning.
Following this well-settled principle of law enunciated in Sukh Dev v. Parsi others the rights of other co-owners, under such circumstances would b sufficiently safeguarded if they are granted a decree for declaration that the possession of the transferee in land in dispute will be that of a co- share subject to right of adjustment of other co-owners at the time of partition, because a co- sharer in established possession of any part o undivided property not exceeding his share, cannot be dislodged an disturbed until actual partition takes place. For this reason the possession of a transferee from such co-sharer will not be disturbed by other co-owners till such time.
' As regards the other contention of the learned counsel for the respondent that the case of the respondent stands fully protected by the. Exception contained in second part of section 44 of the Transfer of Property Act has also no legs to stand upon. It has never been the case of respondent either at the trial or in the plaint that she and petitioner No, 1 both belonged to a joint family living under one head or Management. Moreover, the parties to the present litigation are admittedly Muslims and in the case of a Muslim family, it cannot be assumed either as a matter o law or as a matter of fact that possession of one is possession of all. The respondent therefrom, cannot be permitted to plead her case in the light C of exception contained in the second part of section 44 of the Transfer o Property Act which is designed to prevent an outsider from enforcing right to joint possession or part enjoyment of a dwelling house.
13. The next question which requires consideration is whether it would be lawful for the Courts to issue temporary injunction against a transferee of a co-sharer in possession of a specific portion of joint property not exceeding his share. The Court in exercising its discretion should be largely guided by relative inconvenience which will result from granting or refusing the injunctive relief as prayed for. Therefore prayer to grant injunctive relief pendente lite ought to be cautionally applied.
It is only in cases where the property, essentially to be kept in its existing condition during the pendency of the suit, is in danger of being wasted, damaged or put beyond the pale of the Court then it should interfere to retrain such acts, Order XXXIX, rules 1 and 2, C. P. C. Regulate the gran of temporary injunction, rule 2 relating to cases of contract or tort and rule 1 relating to injunction against the interference with the subject of lis pendente lite. The words of rule 1 of Order XXXIX, C. P.
C. Are: "where in any suit it is proved by affidavit or otherwise-(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit." This Order is not exhaustive enough but it has been construed liberally by the Courts and not only the execution and alienation pending the suit be restrained but Court may also interfore by injunction to prevent serious damage or waste tending to change the nature or value of the property under litigation. In granting such temporary injunction, the Court will first see that there is a bona fide or prima facie contention between the parties, and then on which side, in the event of establishing a successful title to the suit property, will be the balance of inconvenience, if the injunction does not issue, and further any irreparable loss will be incurred in any case by a party in the event of refusal of injunction prayed for.
14. Undeniably lawful exercise of right vested in a person cannot be legally restrained and disturbed through the issuance of restraint order by any Court under Order XXXIX, rules I and 2, C. P. C. As explained above, the retention of specific portion by a transferee of co-owner out of the joint - property, not exceeding share, could hardly be considered to b illegal or improper and any effort for the maintenance of possession in the exercise of vested right of enjoyment over that specified portion b a transferee can hardly be characterised as an attempt to waste or damage such property as envisaged by the provisions contained in Order XXXIX, rules 1 and 2, C. P. C. In such a case issuance of temporary injunction against a co-sharer would not be justified under Order XXXIX, rules I and 2, C. P. C.
15. Furthermore a co-sharer as stated earlier, may legally alienate his own share out of an undivided property and if he is in possession of any part of such property to the extent of a share, may induct his tenant or put his alienee in possession over that specified portion. But such an act would hardly be suggestive of the ouster of other co-owner who himself being equally in possession over the remaining portion enjoys the same user of the joint property to the limit of his share. As a natural sequence of the aforesaid discussion,. It may be held that every co-sharer has a right to reasonable enjoyment of the joint property in one of the usual modes, provided he does not interfere with a similar user by the other co-sharers. Despite the fact that plaintiff-respondent has attacked upon the validity of the impugned transaction of sale made by co-sharer i,e, petitioner No, 1 in favour of her transferee i,e, petitioner No, 2, yet she claims joint ownership rights along with appellant No, 1 at least. Even in the light of her averments contained in the plaint, she being a co-sharer in possession of other half portion within her entitlement is not entitled to the temporary injunction prayed for against the petitioners as a decree for permanent injunction cannot be granted against them. In 1974 SCMR 519 it has been held that, principles governing the grant of permanent injunction be kept in view while granting ad interim injunction under Code of Civil Procedure.
' In the instant case as pointed out earlier, the respondent has been in peaceful enjoyment and user of one-half portion out of the alleged joint residential premines while the possession over the remaining one-half of the aforesaid property has become a controversial matter between the parties to this litigation. According to the respondent/plaintiff, she had been in partial possession of disputed portion but according to the defendants/ petitioners as a result of private partition, the disputed portion fell on the lot of petitioner No, 1 who subsequently alienated the same through registered sale-deed dated 15-12-1974 in favour of Mst. Amtul Hussain defendant/petitioner No, 2 in the year 1974 and since then petitioner No, 2 transferee has been in exclusive possession and enjoyment of that specified portion, which originally had formed the part of the alleged residential premises. This fact gets support from the registered sale deed dated 15-2-1974 as well as order dated 6-4-1978 passed by the Assessing Authority. The learned counsel for the respondent strenuously argued that as documents referred to above have been challenged, they should not be considered to justify an inference of a prima facie case in petitioner's favour. This contention may very well find its reply in a decision of the Supreme Court, given in Mst. Feroze Begum v. Mst.
Amtul Farooq (1) where it has been observed by their Lordships as under :- "Having perused the impugned judgment, we find that the District Judge bad brushed aside a registered sale deed in respect of the disputed house placed on the record by the respondent purporting to show that her late husband had transferred the house in her favour. The view taken by the High. Court was that this document could not be lost sight of merely on account of the challenge to its genuineness as at any rate the finding required to be given at this stage was to be merely tentative in nature and the document was good enough to justify the inference of a prima Jack case in favour of the respondent."
16. Manifestly, the petitioner's assertion that they have been in possession of their specific portion on the basis of private partition and
(1) 1976 SCMR 291 a. Registered sale deed dated 15-2-1974, within the knowledge of the respondent, prima facie appears nearer to the truth and the same should not have been disbelieved by the learned Courts below at this preliminary stage of the suit. The respondent who already enjoys possession over other half of the alleged joint property in proportion to her share, has no right either in law or equity to be allowed to grab the remaining one-half of the property owned and occupied by petitioners.
In the given circumstances of this case, the granting of any injunctive relief by the Court on the move of the respondent who apparently seems to have been strongly motivated by lust and greed for appropriating the whole property, would certainly amount to an interference in the right of reasonable enjoyment of the other co-owner i,e, petitioner No, 2, the transferee of petitioner No, 1.
This view further gets support from the decision of the Calcutta High Court made in Durga Sankar Sarmaray v. Kamini Kumar Sarmaray and others (1) and the same has been subsequently approved in PLD 1968 Dacca 172 wherein it was ruled as under :- "If one co-sharer separately occupies a portion of the common land without objection from his co- sharers and with their express or implied consent, he is not to be subjected to a suit in which the plaintiffs claim joint possession of the plot of which the defendant is in sole occupation. If the separate occupation of the defendant is with tacit or express assent of his co-sharers, and the co- sharers are dissatisfied with the manner in which the joint land is being held in possession by the tenants-in-common, their proper remedy is to bring a suit for partition. On the other hand, if the separate occupation of a co-sharer is continued after objection from any of his co-sharers and in defiance of their claims to be in joint possession of the land, then the co-sharers who are excluded and ousted from joint possession are entitled to bring a suit to obtain, joint possession of the ejmali property."
17. In addition to above, as pointed out earlier, the form of the plaint appears to be improper with the result that the suit may be found not maintainable in the eye of law in view of the principle mentioned above as well as laid down in Sukh Dev. v. Parsi and others (2) and Sayed Jamal Shah v.
Abdul Qadir Shah and others (3). The existence of a prima facie case also includes the question of maintainability of suit. The' learned Courts below while granting the injunctive relief absolutely overlooked this aspect of the case. It is a well settled proposition of law that if a suit is itself not maintainable. Court could neither give a final verdict nor decide interlocutory matters arising therein.
18. For the foregoing reasons I hold that the appellants had no prima facie case in their favour and the tentative assessm ent made in this regard by the Courts below is absolutely unwarranted by law.
19. The learned lower Courts also found that the balance of inconvenience also tilts in favour of the respondent without assigning any reason. The parties have been occupying their respective specific portions separately since long and the respondent would hardly face any inconvenience in case of refusal of temporary injunction. On the other hand the petitioner No, 2 would face all possible inconveniences in the enjoyment of her legal right. There is nothing on the file to believe that the comparsative
(1) AIR 1928 Cal. 535 (2) AIR 1940 Lah. 473
(3) PLD 1955 Pesh. 26 mischief or inconvenience in case of withholding the injunction would be greater than which would like to arise from granting it.
20. The learned Courts below were also of the view that if injunction pendente lite is not granted, the respondent might suffer an irreparable loss. This conclusion is also not supported by cogent reasons. The respondent, evidently occupies the part of the property to the extent of her one-half share and also claims the jointness of the property in question. Be that as it may, I could not find out how she would incur an irreparable loss in case of refusal of temporary injunction if she succeeds in proving the jointness of the disputed property. As stated earlier, if the property is found to be an undivided one by the competent Court then in such a case the transferee of the co-owner not exceeding her share would be deemed to be a co-sharer clothed with all the rights and liabilities of its transferor subject to adjustment at the time of partition. In view of this matter, no question of incurring any irreparable loss or injury on the part of the respondent would arise especially when she is equally in peaceful enjoyment of her right to the extent of her one-half share.
21. Having given my earnest consideration to the aforesaid contentions, I am of the view that the reasonings propounded by the learned Courts below do not represent the true appraisal of law on the point which has been judicially recognised in the aforesaid instructive and luminous decisions.
As the learned Courts below in allowing an injunctive relief under Order XXXIX, rules 1 and 2, C. P. C.
Acted illegally or with material irregularity in the exercise of their jurisdiction, therefore the impugned orders passed by them are apt to interference, in the exercise of revisional jurisdiction, by this Court.
22. Finding that the plaintiff-respondent failed to establish the existence of all the essential ingredients for the issuance of temporary injunction in her favour, she is not entitled to injunctive relief as pray-xi for. I accept the petition, quash the impugned orders and dismiss the respondent's application filed under Order XXXIX, rules 1 and 2, C. P. C. Leaving the parties to bear their own costs.