JAWAD HASSAN, J. Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has impugned judgment dated 15.08.2022 (the "impugned judgment") passed by the Respondent No.6/Additional District Judge Rawalpindi, whereby appeal filed by the Respondents Nos.1 and 2 was partially accepted.
2. Facts of the case for the disposal of this writ petition are that the Petitioner tiled a suit for declaration before the Senior Civil Judge, Rawalpindi to the effect that her predecessor-in-interest namely Faiz Rasool was owner in possession of land measuring 6-kanals 11 marlas out of land measuring 13 kanals 3 marlas. Along with the said suit, an application under Order XXXIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 (the "C.P.C") was also tiled and the trial Court, at preliminary stage, granted interim relief on 29.07.2022. An application under Order XXXIX, Rule 4 of the C.P.C. tiled by the Respondents Nos.1 and 2 was dismissed on 04.08.2022 against which appeal was preferred before the Respondent No.6 who partially accepted it through the impugned judgment hence this petition.
3. Learned counsel for the Petitioner argues that while passing the impugned judgment, the Respondent No.6 has not taken into consideration the factum of finalization of partition proceedings pursuant to which Naqsha Jeem was prepared by the revenue officer. He further argues that the Petitioner is only aggrieved of the observation given by the Respondent No.6 regarding raising of construction on the suit land. He adds that if the impugned judgment is not set-aside, the Petitioner will suffer an irreparable loss and injury. The counsel for the Petitioner has relied on "Muhammad Ibrahim and others v. Muhammad Ismail and others" (2005 SCMR 1335), "Fazal and others v. Ghulam Muhammad and others" (2003 SCMR 999) and "Babar Ali v. Arshad Mehmood and 15 others" (2012 MLD 1667).
4. On the other hand, learned counsel for the Respondents has supported the impugned judgment and contended that the same has been passed by the Respondent No.6 as per law. He stated that the Respondents, being co-sharers, are in continuous peaceful possession of the suit land which is based upon registered sale deed still holding the field and they are raising constructions at the spot on the said basis. He maintains that when the Respondent No.6 has allowed the Respondents to raise construction at their own risk and cost then no inconvenience was likely to be caused to the Petitioner. He added that though final decree of partition was passed on 14.06.2022 and assailed by the Petitioner through appeal before the ADCR yet the same is pending and has not been decided and in case the Petitioners succeed, the Respondents would demolish the constructions raised by them. He has relied on "Muhammad Ali v. Mahnga Khan" (2004 SCMR 1111); "Fazal Begum and others v. Sh. Ijaz Ahmed and others" (1985 SCMR 1928), "Malik Manzoor Hussain v. Muhammad Bashir and others" (1980 SCMR 366) and "Mst. Feroz Begum v. Mst. Amtul Farooq" (1974 SCMR 105).
5. Arguments heard. Record perused.
6. Primarily, the Petitioner is aggrieved of by the observation given by the Respondent No.6 to the extent of allowing subsequent construction by the Respondents on the property in dispute at their own risk and cost. Admittedly, the parties are co-sharers and construction over the suit property is not disputed by them. The only bone of contention as raised by the Petitioner is that the Respondents cannot raise construction over the joint land as it is yet to be partitioned. Perusal of impugned judgment reveals that the final decree of partition dated was passed by the Assistant Commissioner-I on 14.06.2022 however, the said decree has already been assailed by the Petitioner through filing of appeal under Section 161 of the Land Revenue Act, 1967 (the "Act"), the factum of its pendency before the Additional Deputy Commissioner Revenue, District Rawalpindi is not disputed by the parties. It has been noted in the impugned judgment that the construction had already been started on the property in dispute. The Hon'ble Supreme Court of Pakistan in "Malik Manzoor Hussain v. Muhammad Bashir and others" (1980 SCMR 366) has held that "stopping of ongoing construction would cause greater inconvenience to the party making construction on the spot and had held that the balance of convenience was lying in favour of such party". Further in "Fazal Begum and others v. Sh. Ijaz Ahmad and others" (1985 SCMR 1928), it has held by the Hon'ble Supreme of Pakistan that "construction made during pendency of suit or subsequent proceedings shall be at the risk and cost of the respondents". Moreover, raising of constructions on own risk and cost has been allowed in "Walid alias Khan Sheerin and others v. Muhammad Niaz Khan and others" (2011 MLD 1548) and "Zahir Shah v. Shahzeb" (2015 YLR 1505). In the given situation, when the learned appellate Court has allowed the Respondents to raise construction on the property in dispute at their own risk and cost, the right of the Petitioner has already been safeguarded and this Court do not find any ground for interference in the impugned judgment in view of the law laid down by the Hon'ble Supreme Court of Pakistan, in the above referred judgments. Therefore, this petition holds no merit and is hereby dismissed. Needless to add that judgments referred to by the learned counsel for the Petitioner cannot be relied upon being distinguishable from the facts and circumstances of the case in hand as each and every case has its own merits. However, it is observed that in case the appeal pending before the ADCR under Section 161 of the Act is decided in favour of the Petitioner, then the Respondents would not be able to claim any compensation for the construction or improvements made by them on the spot.