' IJAZ UL AHSAN, J.--- Through this petition an order dated 30-4-2009 passed by a learned Civil Judge, Gujranwala which was affirmed by the learned Additional District Judge, Gujranwala, vide order dated 25-5-2009, has been assailed.
2. The petitioner claims to be a joint owner in land measuring 30 Kanals 8 Marlas comprised in Khewat No.1, Khatuni No. 124 comprised in Khasra numbers mentioned in detail in the first paragraph of the petition situation at Niampur, Tehsil and District Gujranwala. The dispute relates to a portion measuring 3 Kanals, 18 Marlas comprised in Khasra No.702/399. The petitioner admits that the respondents have been in exclusive possession of the said land for a tong time. The petitioner filed a suit for possession through partition seeking various reliefs' including an order that the. Respondents be restrained from constructing a CNG Station on the suit property, which appears to be the main reason for filing the suit. An application for temporary injunction was also filed with the plaint.
3. The respondents filed their written statement as well as reply to the application for interim injunction. The defence taken by the respondent was that the entire Khata consisted of a much larger land area consisting of 394 Kanals, 16 Marlas out of which the petitioner and respondents 'Nos.5 and 7 to 11 had already sold 247 Kanals and 15 Marlas with a front of three acres facing the main road in favour of Mojeeb-ur-Rehman son of Sardar Muhammad. Ansari. Mojeebur Rehman had established a housing colony under the name and style of Mojeeb Colony on the said land and had sold plots to a large number of buyers. Therefore, the 'claim of the petitioner to be co- owner in the remaining Khata to the extent of one Kanal out of the total of 30 Kanals, 8 Marlas was open to question. It was further averred that as a result of a family partition the respondents were in possession of land measuring 3 Kanals 18 Marlas comprised in Khata -No.702/399 for the last 25 years and that the petitioner had no nexus or connection with the said portion. The possession of the respondents was an admitted fact and the only claim of the petitioner was that being a co - owner in the Khata, he was entitled to and had a proprietary interest in every inch of the undivided Khata.
4. It appears from the record that the respondents initiated construction of the CNG Station on the land in their possession in Khasra No.702.399 in accordance with a site plan which was duly approved by the competent authorities. A license was obtained by the respondents from the Oil and Gas Regulatory Authority on 15-3-2006, the installation of CNG Station. Permission to start construction was given by the competent authority on 8-7-2007. The requisite plant, machinery and equipment was imported in October, 2008. Electricity, gas and other related utilities were simultaneously installed in the later part of the year 2008. According to the respondents, they borrowed a sum of Rs.9.8 million from Bank Alfalah Limited for the aforesaid project. In order to secure the said loan the land in question was mortgaged in favour of Bank Alfalah Limited.
5. The suit in question was filed on 11-2-2009 when the CNG Station was on the verge of going into commercial operation. The learned Civil Judge after hearing the parties and examining the record C declined to issue a restraining order against the respondents. An appeal filed by the petitioner before the learned Additional District Judge, Gujranwala, did not succeed either.
6. It appear from the record that the petitioner approached other avenues to seek injunctive relief.
He filed a suit against the Government of Pakistan, Secretary Industries, Oil and Gas Regulatory Authority, Inspector Explosives and the respondents seeking a restraining order against issuance of NOC for establishment of a CNG Station on the suit land. The petitioner did not succeed in those proceedings. An appeal filed by the petitioner against an order refusing to grant temporary injunction in the said suit was also dismissed by an Additional District Judge at Gujranwala, vide order dated 25-5-2009.
7. The learned counsel for the petitioner assails the impugned orders on the sole ground that being a co-sharer he could not be deprived D of use of his share in the suit property. He submits that refusal on the part of the lower Court to grant injunctive relief amounts to depriving the petitioner forever of the right claimed in the suit land. The learned counsel relies on Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9 to argue that a co-sharer in an undivided Khata is entitled to a share in every portion thereof and can, therefore, restrain other co-sharers from undertaking any activity which may have the effect of changing the nature of the suit property.
8. I have carefully gone through the aforesaid judgment .Of the honourable Supreme Court of Pakistan. The facts of the case and the law laid down in the said Judgment are different from what the learned counsel for the petitioner is canvassing. The Judgment lays down the law that the vendee of a co-sharer who owns a share in 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 co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property to 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 such plots transferred to the vendee would only entitle the later to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers.
9. The facts and circumstances of the case before this Court are different. In the first place the respondents are and have been in exclusive pos'session of the disputed Khasra and the land comprised there under for a considerable period of time. This fact is not disputed by the petitioner.
The respondents also plead a family partition as the basis of their exclusive possession. The petitioner also does not dispute that construction work on the CNG Station started in 2005 when various activities leading to setting up of the CNG Station were being undertaken. These include construction of building, obtaining gas and electricity connections, import and installation of machinery, obtaining necessary approvals, permissions and license from various State, Provincial and Local Government functionaries etc. All these activities could not have gone unnoticed by the petitioner. He kept quiet and let the respondents undertake all the said activities without any objection or protest of any nature. He immediately sprang into action and filed a suit for possession through a partition suit on 11-2-2009, as soon as all the construction and installation activity was completed and the project was about to be commercially launched. The relief sought inter alia included a decree of permanent injunction against setting up of a CNG Station on the suit land. Having failed to get the requisite results in the said suit, the petitioner filed another suit on 28- 3-2009, impleading various functionaries including OGRA, Inspector Explosives etc., a brief reference to which has already been made in the preceding paragraph.
10. The objective of this entire exercise appears to be to restrain the respondents from putting the CNG Station into service and thus to put them under pressure knowing that the project has been set up against a Bank loan which will have to be repaid from the proceeds of the business undertaken through the CNG Station.
11. The conduct of the petitioner points, towards mala fides. There is enough material on record on the basis of which it can be concluded that he has not come to the Court with clean hands. If the petitioner was serious and bona fide wanted to assert his claim, 'he had ample time and opportunity since 2005 when the first visible steps were taken towards establishment of the CNG Station, to approach a Court of competent jurisdiction and assert his claim. The fact that he sat back for about four years and let the respondents undertake construction, invest money and install a CNG Station is sufficient to attract the principle of estoppel and acquiescence against the petitioner. In the opinion of this Court the petitioner is estopped for changing his position at this stage in a manner that may be detrimental to the interest of the respondents having acquiesced in the action of the respondents for more than four years.
12. It is interesting to note that in the appeal filed before the learned Additional District Judge the prayer made by the petitioner was changed from seeking a restraining order against the "construction of a CNG Station" to restraining order against the respondents from "operating a CNG Station". Surely between 30-4-2009 when the stay application was dismissed and 4-5-2009 when the appeal was filed a CNG Station was not constructed over night on the disputed land.
13. It is settled law that a co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor. This principle has also been reiterated in the judgment of the Honourable Supreme Court of Pakistan.
Cited by the learned counsel for the petitioner. Further, no bar has been pointed out by the learned counsel for the petitioner against a co-sharer in possession of a Khata from utilizing the land in his possession for any lawful purpose. It would be absurd to suggest that by reason of construction of a CNG Station the petitioner's rights (which are yet to be determined) would be adversely affected or value of his share will be diminished, in the event that partition of Khata takes place and a portion of the land in question falls in his shares. This is notwithstanding the claim of the respondents that the Khata has already been partitioned by way of a family partition pursuant to which they are holding possession for the past many years. The learned counsel for the petitioner has failed to convince me as to how the value of the property would be reduced by reason of installation of a CNG Station on it.
14. The learned counsel for the respondent has taken the position that a co-sharer cannot seek an injunction against another co-sharer where both are in exclusive and continuous possession of their respective shares. The learned counsel relies on Shah Hussain v. Abdul Qayyum and others 1984 SCM R 427; Muhammad Sharif and 3 others v. Ghulam Hussain and other 1995 SCM R 514 and a Judgment of this Court passed in Aman Ullah v. Hameed Ullah and others 2006 YLR 856 in support of this proposition. The injunction being sought by the petitioner falls in the category of injunctions discussed in the afore-cited Judgments which are on all fours with the instant case.
15. In order to be entitled to injunctive relief which in any event is equitable and discretionary in nature, the three ingredients for grant of injunctions, namely, prima facie case, balance of convenience and irreparable loss have to be established. It has been held that all the three ingredients have to be present at the same time. In case any one of the ingredients is missing, the Court cannot grant temporary injunction.
16. From a perusal of the record it is clear that the suit is at the preliminary stage. The right of the petitioner in the suit land and its extent is yet to be determined by recording of evidence. So is the claim of the respondents that they are in exclusive possession of the same for the past 25 years on the basis of a family partition. Therefore, a prima facie case in favour of the petitioner is clearly not made out. Admittedly respondents have invested huge sums of money on construction of the CNG Station and installation of equipment and machinery thereon. An order restraining them from operating the CNG Station will inconvenience them more compared to the petitioner who has had no nexus or connection with the suit land for the past 25 years. Even if for the sake of argument it is admitted that there is a possibility that the petitioner will be found entitled to a share in the disputed property if and when it is ultimately partitioned, the loss, if any, would be calculable in monetary terms. Therefore, the ingredient of irreparable loss is also missing in this case.
17. The learned subordinate Courts have kept all the aforesaid factors in mind, applied the correct principles of law and reached an unexceptionable conclusion. The learned counsel for the petitioner has failed to point out or identify any piece of evidence that was available on record and has either been misread or ignored by the learned lower Courts. Further, the learned counsel has not been able to show any illegality or material irregularity committed by the learned subordinate Courts in exercise of the jurisdiction vested in them.
18. In view of the above, I do not find any merit in this petition. It is, accordingly dismissed. There shall be no order as to costs.