' SYED SAJJAD HASSAN SHAH, J.---By way of instant revision petition, Wajeeha and five others have challenged the judgment and order passed by the learned Additional District Judge-I, Bannu dated 26-2-2011 whereby the appeal filed against the judgment and order of Civil Judge-XI, Bannu dated 20-12-2010 was partially accepted and the order of the trial Court was set aside to the extent of allowing respondents to raise construction over the suit property and the remaining order was maintained.
2. Briefly stated the facts are that respondents-plaintiffs filed a suit seeking a decree for perpetual and mandatory injunction against, the petitioners-defendants in respect of the property comprised in Khasra No,454 measuring 16 marla restraining them from raising construction, altering and transferring the suit property. The respondents-plaintiffs averred that the suit property is jointly owned by the parties and so far it has not been legally partitioned. The petitioners- defendants intended to raise the construction over the entire area of the suit property which is more than their entitlement and also wanted to alienate the suit property. The petitioners- defendants contested the suit by filing the written statement wherein they claimed their possession as a result of family partition since long. They also filed replication and asserted that the respondents plaintiffs have no prima facie case, they will not suffer irreparable loss and balance of convenience lies in favour of the petitioners-defendants. Along with their written statement, they filed an affidavit to the effect that they would raise the construction on their own risk and cost. If the case would be decided in favour of respondents-plaintiffs, they will pull down the construction and remove the superstructure by restoring the original position of the suit property. The learned trial Court accepted the application and restrained further alienation of the suit land for six months or till the disposal of the suit whichever is earlier. However, the construction, if raised, it shall be on their own risk and cost and shall remove the superstructure on their own cost if the suit is decreed in favour of petitioners-defendants. The learned Appellate Court, while partially accepting the appeal, set aside the impugned order to the extent of permitting the petitioners-defendants to raise construction on their own risk and cost:
3. The learned counsel for the petitioners contended that the respondents-plaintiffs are owners in the suit property to the extent of one marla whereas the petitioners-defendants are owners to the extent of 12 marla 7 sirsais. The respondents-plaintiffs being the owners of negligible share in the suit property would not suffer any loss muchless irreparable. Likewise, balance of convenience lies in favour of petitioners defendants as they are in possession of the property under the valid settlement of private partition. Similarly, the respondents-plaintiffs are also enjoying the possession of rest of the property according to their own share. He further contended that around this chunk of land, a boundary wall is already constructed. Moreover, the construction has been raised up to the roof level and about to be completed. The belated filing of suit by the respondents-plaintiffs clearly smacks of their mala fide. He farther submitted that an affidavit was filed for pulling down the construction, removing the superstructure and restoring original position of the suit property in case decree is passed in their favour.
4. The learned counsel for the respondents-plaintiffs contended that the parties are co-sharers in the suit property and none of them can change or alter the nature of the property without the permission of other co-sharers. The respondents-plaintiffs have a goad prima facie case and in case of completion of construction over the suit property, the respondents-plaintiffs would be deprived of a valuable portion of the suit property. He further contended that the affidavit filed by the petitioners-defendants is not sufficient to compensate the respondents-plaintiffs from the loss which they will suffer on account of completion of construction by the petitioners-defendants. He supported the judgment and order passed by the learned appellate Court.
5. I have considered the above submissions and carefully perused the available record.
6. A perusal of the record reveals that the parties are joint-owners in the suit property and according to them, they are also having the other joint ownership in the same village which they have not partitioned so far. However, the petitioners-defendants while defending suit asserted that the suit property has fallen in their possession as a result of private settlement. The respondents- plaintiffs are also in possession of the property owned by both the parties under the same private partition. On an application of the respondents-plaintiffs, the learned trial Court. Directed Bailiff of the Court to visit the spot and submit the report abut the fresh construction by preparing site plan.
The same was duly prepared and submitted in the Court. The report depicted the construction raised up to the roof level and a small portion which is built up to the DPC level. The entire area is covered by boundary wall. The respondents-plaintiffs have not filed suit at early stage of construction. At this stage when the petitioners-defendants are shown owners of more than 12 marla of the suit land, they cannot be restrained from raising the construction in order to protect the negligible share of the respondents-plaintiffs in the suit property, as in case of prohibitory order, the petitioners-defendants would suffer to their interest whereas the suit property including the other, jointly owned property of the parties would be partitioned as per the mode and method prescribed. In the Land Revenue Act.
7. There is no cavil to this proposition of law that the co-sharer ordinarily cannot be permitted to change,. Or alter the nature of the property and to put it to different use, one for which it is intended without the permission of other co-sharer and without legal partition. The learned trial Court while accepting the affidavit, permitted the petitioners-defendants to raise the construction on their own risk and cost and in case of decree the construction is to be demolished and after removing the superstructure, restore the original position of the suit property. The learned trial Court protected the interest of respondents-plaintiffs by accepting the undertaking filed by the petitioners- defendants. Even otherwise, the respondents-plaintiffs would not sustain any irreparable loss as compared to the loss to be suffered by petitioners- C defendants, as they are owners to the extent of one marla of land and have not opted to seek their remedy in time. Keeping in view the ratio laid down in number of cases where the august Supreme Court has also approved such arrangement where the interest of the other owners is protected. Reliance placed on case titled Afsar Khan and others v. Mst. Alam Jan and others (1983 SCM R 273) where in somewhat similar circumstances, the honourable apex Court held that:-- "However, there can be no cavil with the proposition that ordinarily a co-sharer cannot be permitted to alter the nature of the property, and to put it different use from one for which it is intended. But we noticed that in the present case the High Court has taken care to protect the interest of the petitioners by stipulation that if the portion of land in possession of the opposite party does not fall to their share, then they will not claim any compensation for the construction raised by them. We also noticed that the land is at present being used for agricultural land, its value is likely to be enhanced to become a building site. On this ground as well the order passed by the High Court is not likely to cause any prejudice to the present petitioners."
' Similar view has been subscribed to in the case titled Fazal Be um and others v. Sheikh Ijaz Ahmad and others 1985 SCM R 1928).
8. Since the petitioners-defendants are in possession to the suit property and they have already raised construction up to the roof level, therefore, the judgment and order passed by learned appellate Court is not in accordance with law.
9. For what has been discussed above, the instant revision petition is accepted, the impugned order of the learned appellate Court is set aside and the order of the trial Court is restored. There shall be no order as to the costs.