' MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner filed a suit for perpetual/mandatory injunction against the respondents claiming that respondents are co-owners with him in the suit property and they have no authority to dispossess him from the joint property. He further submits that the property is still unpartitioned and as such the respondents have no right to dispossess the petitioner being joint owner. The learned trial Court after recording the evidence and hearing the parties dismissed the suit holding that a suit for permanent injunction is not maintainable till the partition of property. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 15-3-2010.
2. Learned counsel for the petitioner submits that respondents Nos.1 and 2 have made statement on 28-4-2007 confirming that they will sell the property according to their share which is in their possession and will not sell any property in excess of their share. On 8-7-2099 respondents Nos.3 and 4 also make the same statement as was recorded by respondents Nos. 1 and 2 and as such the learned trial Court should have decreed the suit forthwith and there was no need for recording, any evidence further.
3. Learned counsel for the respondents supports the impugned judgment and decree and submit that petitioner has already sold his share in suit-land and his possession over property is not legal, he further submits that even if it is admitted that petitioner is share-holder in the .Suit property but he is not entitled to retain the possession in excess of his entitlement.
4. The argument of learned counsel Respondents has force. It is an established law that where a specific remedy is available, the suit under section 56(1) of the Specific Relief Act is not maintainable, but in the present case the petitioner was claiming that he is in possession of the property according his share. Although his share is unpartitioned, but he has every right to retain the possession. His grievance was only that respondents should not eject him from the property in his possession and as such the petitioner was entitled for the said relief, especially when it is an admitted fact between the parties that petitioner and respondents both are joint owners of the suit property.
5. Learned trial Court has dismissed the suit without attending the said aspect of the case. The dismissal of suit means that both the courts have allowed the respondents to dispossess the petitioner forcibly without any due process of law.
6. In view of above the judgments of learned courts below are modified to the extent that the petitioner will not be dispossessed forcibly except in due course of law. With these modifications the petition is allowed.