SYED ARSHAD ALI, J.- Through the instant revision petition, the petitioner has called into question the judgment/order of the learned Additional District Judge/Izafi Zila Qazi Chakdara Dir Lower dated 19.11.2018 passed in civil appeal No. 24/14 (XIV) of 2018, whereby the appeal filed by the present defendants/respondents against the order of trial Court dated 25.9.2018 was accepted by partially modifying the order of the trial Court.
2. Essential facts of the case are that the present plaintiff had filed a suit before the civil Court at Chakdara for declaration to the effect that the disputed property which is described in the plaint annexed with the plaint as mark "E" is privately partitioned among the parties and thus the defendants had no right to refute the ownership of the plaintiff over the land which is mark "D" and thus any construction on the said portion of land is without lawful authority. He has also prayed for possession of the suit property. In the said suit, a right of passage was also claimed and the said passage has been duly reflected with the appended annexures in the plaint starting from point A (1) to D (1).
3. The suit was contested by the defendants in their written statement. In the said written statement the defendants had denied the averments in the plaint.
4. During the proceedings, the plaintiff had also filed an application for restraining the defendants No. 2 to 11 from obstructing the passage/thoroughfare which they have shown in the annexures to the plaint. On the said application, the learned trial Court had granted ad-interim injunction and appointed the Bailiff of the Court to visit the spot and prepare his report. Accordingly, the Bailiff of the Court visited the spot and prepared the report.
According to the Bailiff report, the defendants had encroached upon the thoroughfare and have included a portion of the said thoroughfare on the eastern side in their house. Resultantly, the plaintiff had filed another application for demolition of the said obstruction, which was contested by the defendants.
5. During the proceedings, the defendants had agreed to open six (6) feet passage which they had obstructed and accordingly the trial Court vide order dated 30.10.2017 had directed for removal of the said obstruction keeping in view the affidavit being furnished by the attorney of the defendants No. 2 to 11. Pursuant to the direction of the Court, the Bailif f visited the spot and in his presence the said obstruction was removed. On the said removal both the parties had shown their satisfaction as reflected from the order of the trial Court dated 09.1 1.2017.
6. During the proceedings, it also transpired that all the legal heirs of the common predecessor have not been included in the suit, therefore, the present plaintiff had filed an application before the Court for amendme nt in the plaint to include the other legal heirs of the common predecessor. Similarly, the defendants No. 2 to 11 had also filed an application before the Court that the entire thoroughfare be opened by six (6) feet in width. The parties had filed their respective replications to the said applications. The learned trial Court through consolidated order dated 25.9.2018 allowed both the applications preferred by the parties. The plaintiff/petitioner had challenged the said order before the appellate Court and the learned appeal Court had partially modified the order to the trial Court vide impugned order dated 19.11.2018. The petitioner still feeling aggrieved of the order of the learned appellate Court has filed the instant revision petition.
7. Arguments heard and record of the case was perused.
8. It is evident from record that the plaintiff is seeking multiple reliefs from the Court against the defendants. All the parties to the suit are the off-springs of common predecessor. The plaintiff is the son of Hazrat Ghani Bacha, whereas defendants No. 2 to 11 are the children of the deceased son of Hazrat Ghani Bacha namely Asfandyar.
While defendant No. 1 is also the brother of the plaintiff. The entire property is the ancestral property of the parties.
9. The plaintif f claims that the property which he has marked as "D" in his site plan falls in the share of the plaintif f, however , due to financial problems being faced by defendants No. 2 to 11 on humanitarian ground they were allowed to construct three (3) shops on the same for their livelihood with the understanding that after the measurement of the respective shares of the parties, if the defendants are found in possession of the property more than their share they will have to return the said property to the plaintiff. In the said suit, he is also seeking his right of passage in the disputed thoroughfare. The suit so far has not finally been decided and the learned trial Court on the application of the present petitioner had directed for the removal of the obstruction which was created by the defendants No. 2 to 11 by directing them to keep the thoroughfare with the six (6) feet width open for passage of the parties. However, subsequently, the defendants had filed an application that in front of their house they had opened the thoroughfare with the width of 6 feet, whereas in front of the house of the plaintiff the said thoroughfare is narrow, therefore, the plaintiff be also directed to keep the thoroughfare open with the 6 feet width. However, the learned appellate Court directed the parties that the parties should maintain status quo in respect of the existing width of the thoroughfare. Therefore, the said thoroughfare is no more an issue between the parties.
10. The main grievance of the present petitioner is the order of the Court whereby he was directed to include the entire legacy of Hazrat Ghani Bacha, the common predecessor of the parties in the suit by impleading all his legal heirs. The learned counsel for the petitioner in this regard has stated that the present dispute only relates to the property which is mentioned in the plaint and although there are other properties left behind by Hazrat Ghani Bacha but regarding the same the parties are not at dispute.
11. Be that as it may, however, in essence, the claim of the plaintiff against the defendants is that the portion of the disputed property which is in possession of the defendants No. 2 to 11 belongs to him. The plaintiff has also asked for possession of the said portion of the property. Thus, the said suit prima facie does not appear to be maintainable unless the entire property of their common predecessor Hazrat Ghani Bacha is included in the suit because so far no official partition has taken place among the parties and a suit for possession against a joint owner is not maintainable. The only remedy available to the owner/plaintiff is to file a suit for partition of the entire joint property. In this regard, reliance can be placed on the judgment of august Supreme Court of Pakistan titled "Mst. Resham Bibi and others v/s Lal Din and others" (1999 SCMR 2325)" , wherein it was held that: "Co-sharer had been dispossessed from the property in his occupation by another co-sharer.
Leave to appeal was granted to examine the correctness of the view of High Court on question of law that relief under S. 8 of the Specific Relief Act, 1877, was not available to the co-sharer and the only two reliefs which a co-sharer could seek, were a partition of the joint property or a suit for possession under S. 9 of Specific Relief Act, 1877.".
In support of the same ratio, further reliance can be placed on the case titled "Muhammad Shafi and 2 others v/s Munshi and 3 others (1979 CLC 230 Lahore)", wherein it was held that: "Co-sharers in exclusive possession of portion of joint property for a long period, cannot be dispossessed by another co-sharer , except by bringing a suit for partition."
The same view was further followed by the Lahore High Court in case titled " Zulfiqar and others Ws Noor Muhammad and others" (2002 CLC 711), wherein it was observed that:- "No suit for possession simpliciter should be filed by co-sharers of suit-land who must have asked for partition of the land if they were aggrieved by any action of other co-sharers/defendants."
12. Hence, the impugned findings of the learned trial Court affirmed by the learned appellate Court are exceptionable, which do not call for interference, Resultantly , this petition has got no force, which is accordingly dismissed in limine.