SYED MUDASSER AMEER, J.- Petitioners, sisters and co-sharers/co-owners in the suit property with their brothers, the respondents, filed application for partition of the joint property before the Revenue Authorities in 2018. Upon conclusion of evidence, AAC vide order dated 22.12.2019, containing mode of partition, directed the Patwari Halqa and Girdawar Circle for necessary action at their end. As averred in the plaint/petition, the respondents/brothers on the one hand stalled the partition proceedings while on the other hand simultaneously started construction on the better part of the joint land/property in order to change the nature of the suit property to the detriment of petitioners and to frustrate its just and fair partition. Left with no other remedy, petitioners approached the Civil Court in 2021 through a suit for injunction to restrain the respondents from construction and changing the nature of the property. However, both courts below non-suited them following the general principle that co-sharers/co-owners in a joint property cannot maintain an injunctive suit against each other. This is how the petitioners are before this Court in the instant revision.
2. Numerous notices were issued and served upon the respondents but they chose not to appear and were consequently placed ex-parte. The situation on ground, as submitted by the learned Counsel for the petitioners, is that despite lapse of six (6) long years the partition proceedings are at a standstill while respondents/brothers are exploiting the apparent loophole in the system and the petitioners/sisters are left remediless.
3. Exparte arguments of the learned counsel for the petitioners heard in detail and record perused.
4. The question is simple; can a co-sharer/co- owner in a joint property maintain an injunctive suit against other co-sharer(s)/co-owner(s) to restrain them from changing the nature of the joint property to the former's detriment?
5. The statute relevant to the subject is The Specific Relief Act, 1877 and more particularly section 54 thereof. Besides there is plenty of case law on the subject. Let us examine both in turn. Sections 54 of Specific Relief Act, 1877 and its illustration (n) read as follows:- "54. Perpetual injunctions when granted. Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely):- a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Explanation- For the purpose of this section a trademark is property.
Illustration
(n) A, B and C are members of an undivided Hindu family. A cuts timber growing on the family property, and threatens to destroy part of the family house and to sell some of the family utensils. B and C may sue for an injunction to restrain him."
6. It is clear that the Statute lays no bar on a co-sharer to bring a suit for perpetual injunction against other co-sharer(s) of joint property to restrain them from changing the nature of the joint property to the former's detriment. Rather illustration (n) clearly provides that such injunction may be granted. Thus it can safely be concluded that any such bar does not come from the statute itself.
7. Having found that no such bar is provided in the statute, let us examine the case law to ascertain the true nature, origin and scope of the bar developed through various pronouncements over the years.
8. Upon a survey of the case-law on the subject, the following general principles can be identified:- i. A co-owner holds an interest in every inch of the joint property until partition is effected by metes and bounds. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. (Ali Gohar Khan v. Sher Ayaz: 1989 SCMR 130). ii. While each co-sharer has the right to use the joint property, no individual co-owner may alter its nature or raise construction without the consent of other co-owners (Muhammad Rafiq v. Sardar: 2004 SCMR 1036). iii. If a co-sharer attempts to alter the property to the detriment of others, an injunctive suit is maintainable to prevent such unauthorized actions (Fazal v. Ghulam Muhammad: 2003 SCMR 999). iv. However, if a co-sharer merely occupies or utilizes the property without changing its nature, the appropriate remedy lies in seeking partition rather than an injunction (Akhtar Nawaz Khan v.
Danial Khan: NLR 1995 SCJ 169). v. Injunction is available where one co-owner attempts to change the nature of the joint property, reaffirming that protection against unauthorized alteration is a valid legal ground (Fazal v. Ghulam Muhammad: 2003 SCMR 999). vi. When a co-sharer intends to change the nature of the joint holding or threatens the other co- sharers to divest from their right in the joint property as co-owner. In such a case, such co-owner can institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same (Fazal Karim and 2 others v. Mehboob Khan (Deceased) through his Legal Heirs: 2024 CLC 699 [Lahore (Rawalpindi Bench)]) vii. Where the issue involved in a suit for injunction is regarding changing the nature of jointly owned immoveable property, such suit is maintainable because a co-sharer cannot change the nature of the property in his possession unless partition takes place by metes and bounds (Zia-ul-Haq and another v. Muhammad Ismail : 2022 YLR 2491 [Lahore])
Note: In this case, partition proceedings were pending. viii. In case of joint immovable property, every co-sharer would be deemed to have ownership right in every part of property and one co-sharer could not change nature of property (Maqsood Begum v. Mukhtar Ali and 5 others: 1999 CLC 598 Supreme Court (AJ&K])
It is clear from the above noted principles that the Courts have consistently held that since all co- sharers are joint owners in every inch of the joint property, one co-sharer cannot stop another from the possession or occupation of the same. Naturally, he can also not bring an injunctive suit for the said purpose. All this, however, changes the minute any co-sharer starts construction on, or starts changing the nature of, the joint property to the detriment of the other co-sharer(s). In such a situation the latter has every right to stop the former from construction on, or changing the nature of, the joint property and can very well maintain an injunctive suit for said purpose. In such case, it is for the party intending to raise construction or change the nature of property to first get the joint property partitioned and then carry out the construction.
9. The following extracts from some of these precedents would further clarify the point. In the case titled "ALI GOHAR KHAN vs. SHER AYAZ and others" reported as 1989 SCM R 130, the Supreme Court of Pakistan has held as under: "...it can be said without any fear that the parties arc co-sharers in the suit property. The question now is whether a co-sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co- sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant."
Likewise, relevant Paras of judgment of Supreme Court of Pakistan rendered in the case titled "FAZAL and others vs. GHULAM MUHAMMAD and others" reported as 2003 SCMR 999, are reproduced below: "3. Learned counsel stated that the petitioners are in possession of the property in dispute and they have raised constructions but when they tended to raise construction of shops the respondents who are admittedly joint owners of the property in dispute resisted construction of shops by filing a suit. According to him though there are concurrent findings of fact but despite of that point involved in instant case is that when the construction raised by co-owners on the land does not waste or impair the utility of the land and co-sharers can also enjoy usufruct they cannot resist constructions.... ... ...
5. ...we are of the opinion that petitioners instead of raising construction on the property which is admittedly owned by respondents, should have first of all got it partitioned and then they may have constructed shops on the portion of land fallen in their share."
Same view was followed by Lahore High Court, in an identical case, recently decided, titled "FAZAL KARIM and 2 others vs. MEHBOOB KHAN (Deceased) through his Legal Heirs" reported as 2024 CLC 699, whereby the following observations have been made: "...Law is consistent to this effect that every co-sharer/co-owner is owner in each and every inch of the joint property until it is partitioned by metes and bounds. It is also an oft repeated principle of law that a co-sharer/co-owner cannot change the nature of the joint property or raise construction without consent of the other co-sharers/co-owners. If a co-sharer is dispossessed from the joint property in his/her possession by any other co-sharer, the remedy lies for regaining his/her possession either in a suit under section 9 of the Specific Relief Act, 1877 or by way of a suit for partition.
14. The matter, however, would become different in a case when a co-sharer intends to change the nature of the joint holding or threatens the other co-sharers to divest from their right in the joint property as co-owner. In such a case, such co-owner can institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same. In the said eventuality, it is for the former to first of all get the joint land partitioned. In the present case, the principles laid down in Fazal and others v. Ghulam Muhammad and others supra are clearly attracted and as such the trial Court as well as the appellate Court have erred in law while dismissing the suit being not maintainable and barred by law.
15. For the foregoing reasons, this petition is allowed. As a result, impugned orders dated 19th February, 2018 and 26th February, 2018 are set aside being tainted with illegalities and material irregularities. As a consequence, the suit instituted by the petitioners shall be deemed to be pending before the learned Senior Civil Judge (Civil Division), Rawalpindi, who shall either decide the same by his own or entrust it to any other Court of competent jurisdiction. Needless to observe that the Court seized with the matter shall decide the suit afresh on its own merits, strictly in accordance with law. Parties are directed to appear before the learned Senior Civil Judge (Civil Division), Rawalpindi on 15.04.2023.."
10. Thus it is clear that no co-sharer/co-owner can disturb/interfere with the ownership/possession of the other co-sharer(s)/co-owner(s) in the joint property and any suit seeking to achieve the said object would not be maintainable as held consistently by the superior courts and authoritatively summarized by this Court in the case titled "KHAN SHER and 4 others vs. ISRAIL SHAH and 26 others" reported as 2016 CLC 176. However, this general bar will not come in the way of a co- sharer/co-owner to stop the other co-sharer(s)/co-owner(s) from raising construction on, or changing the nature of, the joint undivided property to the detriment of the former. A suit for the said injunction would, therefore, be competent and maintainable. Hence, the facts and circumstance of Khan Sher's Case (supra) are clearly distinguishable from the facts and circumstances of, and point in issue in, the present case. In the referred case, plaintiffs sought injunctive relief without any prayer for partition of the joint undivided property and without any threat/assertion of change in the nature of property by defendants, while in the instant case, partition applications of the petitioners (plaintiffs) have already been accepted by the Revenue Court coupled with the fact that as per record respondents (defendants) are neither denying petitioners' co-ownership/co-sharership nor have got any objection on the partition but are raising construction to change the nature of property to petitioners' detriment.
11. In the circumstances of the present case petitioners' co-ownership/co-sharership is not at all denied by the respondents, while respondents being unbridled, in the absence of anything in rebuttal whatsoever at the moment, are raising construction on the valuable portion of joint immovable property before finalization of ongoing partition process. Such respondents' conduct would tantamount to denial of petitioners' rights including that of just and lawful partition of the suit property. Therefore, the aforesaid general rule, placing a bar on co-sharer(s) qua seeking injunctive relief regarding his/her proprietary or possessory rights against other co-sharers without seeking partition, could not be applied to the petitioners' case, for it would drastically leave the petitioners remediless especially when partition proceedings on their already allowed applications have not met its logical end due to the delaying tactics of respondents and the sluggish attitude of the concerned revenue officials.
12. In view of the foregoing discussions and exposition of law on the subject, this Court is of the firm view that civil suit for perpetual injunction on behalf of co-sharer/co-owner against other co- sharer(s) of joint property to restrain the latter from changing the nature of the joint property to the former's detriment is maintainable and such injunction may be granted, if the former succeeds.
13. Thus, this petition is allowed. Consequently, impugned judgments and decree of both the Courts below dated 22.12.2021 and 16.05.2023 being not sustainable in law are set aside. Petitioners' plaint shall be deemed to be pending before the learned Senior Civil Judge, Abbottabad who shall either decide the same himself or entrust it to any other Court of competent jurisdiction for decision according to law. Needless to observe that the Court seized with the matter shall decide the suit afresh on its own merits, strictly in accordance with law. Parties are directed to appear before the learned Senior Civil Judge, Abbottabad on 28.04.2025.
CM No. 313-A/2023 SYED MUDASSER AMEER, J.- Since the main Civil Revision has been allowed, therefore, this application for suspension of the impugned judgments and decree, having become infructuous is dismissed.