' CH. MUSHTAQ AHMAD, J.---Briefly the facts are that predecessor of the petitioners Aurangzeb filed a suit for permanent injunction that he is co-owner in the agricultural land fully described in the head note of the plaint situated in village Kotla, Tehsil and District, Rawalpindi. The agricultural land was still un-partitioned as no partition in accordance with law was conducted; that the respondents were interfering in the land by cutting trees and raising construction over there, hence, they may be restrained from illegal acts and designs. Along with the suit an application under Order XXXIX, Rules 1, 2, C.P.C. For the grant of interim injunction was also filed. Learned trial court after hearing arguments not only dismissed the said application but also rejected the plaint vide order dated 3.4.2004 holding that if the plaintiff/petitioner had any grievance he could file a suit for partition and that suit for permanent injunction against the co-owners was not maintainable. Feeling aggrieved by that order petitioners preferred an appeal which was also dismissed by learned Additional District Judge vide judgment dated 21.12.2004 while upholding the order of the trial court. Hence, the instant civil revision.
2. Contention of learned counsel for the petitioners is that the judgments and decrees passed by both the courts below were violative of the law on the subject as rejection of plaint while deciding the application for interim injunction was unwarranted and un-called for; that both the courts below have mainly rejected the plaint on the ground that suit for permanent injunction against the co-sharers was not maintainable which view is erroneous and contrary to the law laid down in the cases titled Sardara and 4 others v. Muhammad Khan (PLD 1998 SC 1509), Fazal and others v.
Ghulam Muhammad and others (2003 SCM R 999), Syed Kamran Hussain v. PTCL and another (2012 CI.0 1998) and Iftikharul Hag v. District Canal Officer and others (2005 CLC 1740). Prays that the impugned judgments and decrees may be set aside while allowing the instant civil revision.
3. Despite service none has appeared on behalf of the respondents today, hence, they are proceeded ex parte.
4. I have heard the arguments advanced by learned counsel for the petitioners and perused the record available on the file.
5. Record goes to show that it was admitted by both the parties that they were co-sharers in the suit land. It is also admitted fact that on the day the plaint was rejected only application filed under Order XXXIX, Rules 1,2, C.P.C. Was fixed for arguments. Perusal of the order passed by learned ti a court clearly reveals that in para-2 of the application arguments advanced on behalf of the petitioners were regarding interim relief and not on main suit and on behalf of the respondents only application filed under Order XXXIX, Rules 1 and 2, C.P.C. Was A contested. The learned trial court while dismissing the stay application observed that suit for permanent injunction against the co-owners was not maintainable. Resultantly, the plaint was also rejected. Learned appellate court also adopted the same view in the impugned judgment. In the authority cited by learned counsel for the petitioner i.e. PLD 1998 SC 1509 (supra) it was held that appellate court and the High Court had rightly maintained that land in question being joint and having not been partitioned between the parties defendants could not unilaterally cut and sell the trees growing over the said land or raising any construction thereon. Consequently the judgments of Appellate as well as High Court were maintained. In the second case i.e. 2003 SCM R 999 (supra) the trial court had decreed the suit restraining the defendants from raising construction over the land jointly owned by the parties.
Judgment of the trial court was maintained by the appellate court as well as the High Court. The Apex Court had declined to interfere in the judgments passed by the courts below holding that defendants instead of raising construction on the property which was admittedly owned by the plaintiff should have first of all got the same partitioned and then might have constructed portion of land falling in their shares. Similarly in the case reported as 2012 CLC 1998 (supra) it was held that rejection of plaint by the trial court while hearing application under Order XXXIV, Rules 1, 2, C.P.C. Was not legally correct.
6. In the case in hand both the courts below have exercised jurisdiction contrary to law on the subject and have wrongly dismissed the suit filed by the petitioners/plaintiffs, thus, have committed illegality in exercise of jurisdiction warranting interference in revisional jurisdiction by this Court. Resultantly, this civil revision is allowed and the judgments and decrees of both the courts below are set aside. The case is sent back to the trial court where the suit and application under Order XXXIX, Rules 1 and 2, C.P.C. Will be deemed pending and will be decided afresh after affording an opportunity of hearing to both the parties.
7. A copy of this order be sent to the learned District Judge, Rawalpindi who shall entrust the matter to the trial court concerned for decision afresh in accordance with law. Parties are directed to appear before the learned District Judge, Rawalpindi on 8.12.2014 for further proceedings.