1. 'RAFIULLAH SULTANI, J.--- This appeal is directed against the judgment of District Judge Bagh dated 12-9-2007, whereby the judgment of Senior Civil Judge Bagh dated 1-8-2007 was set aside.
2. ' Brief facts of the case are that respondent filed a suit for possession regarding land number Khasras (New) 22, 23, 24, 25, 26, 690, 691, 692, 703 and 55, measuring 65 Kanals and 9 Marlas, situated Chattar No:2, Tehsil and District Bagh. It is alleged in the plaint that -espondent is owner through mutation No,108 and he seeks the relief of possession to the extent of his share from the above mentioned property. Along with the suit and application of temporary-injunction was moved by the respondent and the same was issued against the appellants by the Senior Civil Judge Bagh, which was resisted. The same was dismissed by Senior Civil Judge Bagh vide his order dated .1-8-2007 and appeal filed by the respondent No,1 was accepted by District Judge Bagh on 12-9-2007, hence this appeal.
3. ' The learned counsel for the appellants repeated the grounds of the appeal and further argued that the judgment of District Judge, Bagh is not according to facts and law and liable to be set aside. He further argued that parties are co-sharers and suit for partition is also pending between the parties. He also argued that the appellants' houses were already constructed on the suit land which were destroyed due to earthquake of 8th October, 2005. The appellants want to re-construct their houses on the same places and ingredients for grant of temporary-injunction co-exist in favour of the appellants. Lastly, he argued that appellants are ready to give undertaking to remove the construction without claiming any compensation in case of decree in favour of respondent No,
1. Thus the District Judge was not justified to allow the application for maintenance of status quo restraining the appellants from raising construction over the suit land.
4. ' Conversely, the learned counsel for the respondent submitted written arguments in which he has pleaded that ingredients for grant of temporary-injunction co-exist in favour of respondent.
5. Respondent is owner of the suit land and if construction was made on the suit land the respondent shall suffer irreparable loss which cannot be compensated in shape of money. He also pleaded that in case of joint property, every co-sharer is owner of every inch of property and no co-sharer could change the nature of property without the consent of other co-sharers. Lastly, he argued that the order of District Judge does not require legal interference by this Court. He relied upon the following case law:--- 1989 SCM R 130. And 1999 CLC 598.
6. ' I have heard the learned counsel for the parties and gone through the record of the case carefully.
7. ' The possession of the appellants is admitted by the respondent as he has sought possession from the appellants through this present suit to the extent of his fractional share which is determined in the plaint nearly 13 Kanals out of 65 Kanals and 9 Marlas. It is also on record that both the parties are land owners and co-sharers in the disputed property as owners over the suit land. Appellants want to raise construction as owners over the suit land. They do not want to raise new construction but they want to raise construction on the same place where their house was already constructed before the earthquake of 8th October 2005. They do not want to raise construction on new vacant place of the suit land. The superior Courts have laid down the rule for grant of temporary-injunction and held that all the conditions, i.e prima facie existence of right in favour of the applicant, an irreparable loss and balance of convenience should co-exist. In the case titled Margub Siddiqui v.
8. Hamid Ahmed Khan and 2 others 1994 SCM R 519, the Honourable Supreme Court held that:--- "Order XXXIX, rules 1 and 2, C.P.C.-Injunction-Not to be granted only on the basis of existence of prima facie case-incumbent on the Court to take into account other questions, such a balance of convenience etc."
9. 'Partition suit is also filed by the respondent against the appellants and, according to law, decree of Khas possession cannot be granted to him because parties are co-sharers.
10. ' The learned District Judge disallowed the arguments regarding undertaking by the appellants to allow them to raise construction over the suit land at their own risk. The learned District Judge is of the opinion that the conditions required for granting of temporary injunction under Order XXXIX, rules 1 and 2 of C.P.C. Are satisfied in this case.
11. 'Therefore, the ground of filing of undertaking being not available under the aforesaid provisions of C.P.C. Could not be considered for vacation of status-quo order issued in favour of respondent herein. No doubt, Order XXXIX, rules 1 and 2 do not provide such ground nevertheless the Court is competent to consider the ground of undertaking while exercising its powers available to it under section 151 of C.P.C., if the circumstances of the case require to do so. This point is thrashed out in detail in following case laws:- 1999 CLC 964, PLD 1995 SC 462, 2000 YLR 2898 and an unreported case decided by Honourable Supreme Court of Azad Jammu and Kashmir titled Khalil-ur-Rehman v. Gohar Rehman Civil Appeal No,4 of 1987 decided on 14-4-1987. In all these cases which have been referred above, the conditions of filing undertaking were accepted to be correct in view of powers available to the Court under section 151 of C.P.C. The present case therefore, when considered on the touchstone of the principle laid down in the above precedent cases merits to be considered. As stated earlier, the suit land is admittedly in possession of the appellants. They want to raise construction over it being owners in possession, whereas the respondent claims himself as owner of this piece of land. This controversy is yet to resolved through the present suit and the suit for partition which is a so pending between the parties. In this view of matter, which the appellants are ready to file undertaking to remove the construction it case the suit is decreed in favour of respondent No,1 Muhammad. Sharif, the fair play is to allow them (appellants) to raise constructions at their own risk. They therefore, are directed to file undertaking to remove the construction without claiming any compensation if, the suit by the respondent is decreed. They are further directed to do the needful within twenty days from the date of this order before the trial Court and, if they do so, the order recorded by the District Judge Bagh dated 12-9-2007 shall stand vacated. However, in case of failure by the appellants, the present appeal shall stand dismissed allowing the impugned order to continue.