' This civil revision has been filed by Ghulam Qadir and three others against the respondents, Ataullah and another. The petitioners along-with Ghulam Rasul, who is defendant No, 1 in the suit giving rise to this revision, are joint owners of the certain land. Out of this land, the said Ghulam Rasul leased out some land in favour of the respondents for the purpose of setting up a brick-kiln.
Thereupon, the petitioners brought a suit against the respondents for an injunction restraining them from installing the brick-kiln in the land in dispute and digging the said land. Alongwith their suit, the petitioners made an application for grant of temporary injunction to the above effect which was granted by the Civil Judge who was seized of the case. Feeling aggrieved respondents went in appeal before the District Judge who accepted the appeal and set aside the stay order.
The petitioners have, therefore come up in revision to this Court.
2. Learned counsel for the petitioners contended that as the property in dispute was joint property, Ghulam Rasul could not make a lease of it without associating with himself the other co-sharers, namely, the petitioners in the present revision. It is not denied that the property in dispute is jointly owned by the petitioners and the said Ghulam Rasul. The case of the respondents is that Ghulam Rasul was in exclusive possession of the land in dispute and, therefore, he could make a lease of that land. It was also pointed out by them that the petitioners were similarly in exclusive possession of other parcels of the joint property and they had leased out these parcels as done by Ghulam Rasul. They placed on record certain documents to support their contention. Learned counsel for the respondents also showed me the copies of Khasra Girdawari in which Ghulam Rasul is shown as in exclusive possession of the land in dispute. I am also conscious of a number of cases in which it has been ruled that if a co-sharer is in exclusive possession of any portion of the joint property he can transfer] it subject to future adjustments to be made at the time of partition 44 the joint property. One such case is reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (1).
Therefore, prima facie, no exception can be taken to the lease of the property in dispute by Ghulam Rasul in favour of the respondents, especially when the petitioners have B themselves made such like transactions in respect of the joint property in their exclusive possession.
3. It was next urged by the learned counsel for the petitioners that the lease in dispute was in contravention of paragraph 24 of the Land Reforms Regulation, 1972. For the purpose of examining the question as to whether the said provisions of the Regulations are attracted to the present case, it is necessary to determine the character of the holding by looking at its area and the quality. In other words, necessary facts had to be brought out before a finding could be recorded in regard to the applicability of the said Regulation. There is nothing on the record to show the total area of the land jointly owned by the petitioners and the said Ghulam Rasul, and the area of the other land exclusively owned by them. It is, therefore, not possible to say that the lease in dispute was hit by the said Regulation.
4. The plea raised by the learned counsel for the petitioners on the basis of the Regulation is also an afterthought inasmuch as it does not find mention in the written statement which has been read out to me by the learned counsel for the respondent.
5. In view of what has gone-above, the impugned order cannot be ground that it offends against the aforesaid on interfered with on the provisions of the Regulations.
6. No other point petitioners.
7. I am, therefore, of the view that the order under revision does not suffer from any illegality or material irregularity. The civil revision is, therefore, dismissed with costs.
(I) PLD 1959 SC (Pak.) 0
8. This order shall, however, not affect the merits of the case which is still pending before the trial Court. The main case shall be decided by the trial Court in accordance with law.