' MUHAMMAD AZIM KHAN AFRIDI, J.--Muhammad Ilia's and seven others have impugned order dated 24-9-2011, passed by learned Additional District Judge, Islamabad, vide which appeal against judgment and order dated 31-5-2011, passed by learned Civil Judge Islamabad, was allowed and application of respondents/plaintiffs under Order XXXIX, Rules 1 and 2, C.P.C. Was accepted.
2. Brief facts giving rise to the instant . Revision petition are that the respondents/plaintiffs instituted a suit for declaration and permanent injunction alleging therein that the respondents/plaintiffs were owners in possession of land measuring 2 kanals 8 marlas out of land measuring 9 kanals, 12 marlas comprised in khewat No,120, khasra No,166 located in the revenue Estate of Tamma Tehsil and District Islamabad as the same was allegedly purchased by their predecessor in interest in 1960. That since then the same remained in possession of their predecessor where after it devolved on respondents/plaintiffs as well as their sisters namely Syed Jan, Makhmal Jan, Razia Begum, Noor Jan, and Zohra Bibi. That the petitioners/defendants are co- owners and co-sharers in the said suit land. That the petitioners/defendants intended to construct a plaza over a better portion of the suit land without the consent of respondents/plaintiffs and without partitioning the same by metes and bounds and that the said act of petitioners/defendants would change the nature of the suit land and would also empower them to occupy better portion of the same by constructing a plaza over it. That the petitioners/defendants were asked time and again to refrain themselves from constructing the said plaza, but of no use and hence the said civil suit.
3. Along with the suit, application for grant of temporary injunction was also submitted which was dismissed by the Court of learned Civil Judge Islamabad, vide order dated 31-5-2011. However, the said order was set aside in appeal by learned Additional District Judge, Islamabad, vide impugned judgment and order dated 24-9-2011 and the application for grant of temporary injunction was allowed.
4. Dissatisfied from the findings of the learned Additional District Judge, Islamabad, petitioners/defendants had preferred the instant revision 'petition challenging therein the vires of impugned order dated 24-9-2011.
5. Learned counsel for the petitioners/defendants has argued that the parties are co-owners in six khasra numbers and that the petitioners/defendants have started construction of plaza in khasra No,116, which is in possession of petitioners/defendants as a result of private partition. That the respondents/plaintiffs have already raised construction in the other joint khasra numbers namely 302 and 304 which had fallen to their lot as a result of private partition. That the respondents/plaintiffs did not raise any objection over the construction and that they objected over the same malafidely when it reached to the level of walls. That the petitioners/defendants had already spent an amount to the tune of Rs,10 Million over the construction. That the respondents/plaintiffs had got no case for the grant of temporary injunction as the petitioners/defendants were justified to utilize the suit land in the shape of construction of plaza which had come to their share as a result of private partition. That construction of a portion of the plaza had already been carried out and as such balance of convenience would lie in refusal of injunction. That the respondents/plaintiffs had not sought partition as they were in the know that the partition had already taken place. He further argued that the petitioners/defendants had already sworn in an affidavit to the effect that the petitioners/defendants are ready to complete their construction at their own risk and costs.
6. According to the learned counsel for the petitioners/defendants the private partition was a contract and that prayer of grant of injunction was aimed at the breach of the terms of the same.
That the respondents/plaintiffs had remained mum over the start of construction and as such they have acquiesced with it and that equally efficacious relief in the shape of partition was available to the respondents/plaintiffs and that the conduct of the respondents/plaintiffs, during the case as well as prior to the same had disentitled them to the grant of injunction and that they have got no personal interest in the suit land as they had relinquished the suit land in favour of petitioners/defendants in private partition. That the respondents/defendants do not have any prima facie case for the grant of temporary injunction.
7. In support of the above arguments, reference was made to clauses (f), (h), (i), (j) and (k) of section 56 of Specific Relief Act 1877 and reliance was placed on case-law reported in (2011 M LD 1548), (2008 CLC 1481), (2008 CLC 829), (2008 CLC 833), (2008 CLC 674), (2011 SCM R 1039), and (1995 SCM R 753).
8. On the other hand learned counsel for the respondents/plaintiffs argued that the respondents/plaintiffs are co-owners in the disputed khasra number to the extent of land measuring 2 kanals 8 marlas. That they were in possession of the same since their forefathers and that the petitioners/defendants forcibly dispossessed them and started raising construction in the same. That a local commission was also appointed who had conducted the local investigation and had given findings supporting the version of respondents/plaintiffs. That no partition by metes and bounds had taken 'place and that the proposed construction is on a piece of land which is jointly owned by the parties and was in possession of respondents/plaintiffs and which is the most valuable part of the disputed land. He further argued that the suit was instituted at the earliest and that the construction was carried out by the petitioners/defendants in spite of restraint orders of the Court. That the petitioners/defendants cannot be permitted to raise construction on the plea of risk and cost as the same would be an act of allowing the petitioners/defendants to take advantage of their unlawful act of forcible dispossession apart from permitting them to raise construction over an undivided land of their choice.
9. Reliance was placed on case-law reported in (2003 CLC 1695.), (2003 SCM R 999), (2004 YLR 1136) and (PLD 1998 Supreme Court 1509).
10. I have heard arguments of learned counsel for the parties and perused the record.
11. In Mst. Saima's case (2011 SCM R 1039) it was observed that sale of joint immovable property by a co- sharer to the extent of his/her share could not be declared invalid on the ground that the vendee has changed its status from one category to another i,e, from agricultural to industrial purpose and that such change would not debar vendee from using land in any manner as owner.
The facts of the reported case are not identical to the case in hand as in the said case the sale of land by a co-owner was challenged and it was ruled that a vendor in exclusive possession of a certain portion of joint land can transfer its possession to vendee so long there .Is no partition between the co-sharers and that the vendee must be regarded as stepping into the shoe of his transferor qua his ownership rights in the joint property to the extent of the area purchased by him.
12. In the case of Zakiya Khatoon (1995 SCM R 753) and that of Waris Baig (2008 CLC 674) as well as Wajiha's case (2011 M LD 1548) alteration in property in the shape of improvement was allowed at the risk and cost of the person making such improvement. The case-law laid down in the said reported case would also not apply to the case in hand as in the instant case allegations of forcible dispossession and occupation of a valuable portion of the suit land are made. Similarly, facts of Mushataq Ali Jatoi's case (2008 CLC 829) are also not identical to the facts of the case in hand and the criteria laid down therein would not apply to the case of petitioners/defendants. In the case of Haji Fareed Ullah and another (2008 CLC 1481) it was ruled that mere a prima facie case was not the only criteria as the other two ingredients i,e, balance of convenience and irreparable loss shall also co-exist.
13. In the case of Sardara and four others (PLD 1998 Supreme Court 1509) it was observed that a co- owner cannot unilaterally cut and sell trees growing in the joint land or raise construction thereon.
In the case of Ghulam Rasool (2004 YLR 1136) it was ruled that co-sharer of joint holding is owner in every part of joint holding to the extent of his entitlement and that a co-sharer cannot be permitted to change character of joint holding to the exclusion of other co-sharers. In case of Fazal and other (2003 SCM R 999) it was observed that instead of raising construction in the joint land the same should first be got partitioned and thereafter construction could be carried out in the portion of land falling to the share of such owner. In case of Khurshid Anwar Jalil (2003 CLC 1695) it was observed that every joint owner is deemed to be in possession of each and every inch of joint property and if strong co-sharer after taking possession of more valuable part of the joint property either alienates or changes its character then it cannot be said that weak/poor co-sharer may file suit for partition and till its decision strong co- sharer may alienate the same or change its character and throw his adversary into ditches or barren land by taking commercially valuable land abutting on road side.
14. It is evident from the record that the parties are co-owners in the suit land. There are allegations of forcible dispossession of the respondents/plaintiffs and occupation of the valuable portion of the suit land by petitioners/defendants by force. The plea of private partition is yet to be established by the petitioners/defendants through evidence. In such eventuality, a prima facie case has emerged in favour of and established by respondents/plaintiffs.
15. Construction over joint land without its partition by metes and bounds and by depriving the co- owner from possession of the same would certainly place a party, deprived of the possession of such land and change of its nature without his consent, in a state of inconvenience and as such balance of convenience would lie in favour of grant of temporary injunction. Needless to add that allowing construction over the suit land in spite of allegations of dispossession of a co-owner and deprivation of such owners from their due right in the property would certainly amount to loss incalculable and irreparable.
16. For the above mentioned reasons, I hold that the impugned order dated 24-9-2011, was passed by the learned Additional District Judge, Islamabad, is in consonance with law and that the same suffers from no illegality or material irregularity warranting interference in revisional jurisdiction and as such the same is maintained and revision petition against the same is dismissed leaving the parties to bear their own costs.