Through the instant writ petition, the petitioner has challenged the order dated 17.06.2022, passed by the learned Civil Judge 1st Class-East, Islamabad and the judgment dated 05.10.2022, passed by the learned Additional District Judge, Islamabad (East), whereby application under order XXXIX, Rule 1 & 2, CPC filed by the petitioner was dismissed concurrently.
2. The facts in brief are that the petitioner/plaintiff filed a suit for declaration and permanent injunction against respondents No.3 to 6/defendants in respect of plot measuring 1 Kanal 13 Marla, Khewat No.940, Khasra No.3346, situated in Revenue Estate of Humak, Tehsil & District Islamabad ("Suit Property"). Along with the suit petitioner/plaintiff filed an application under order XXXIX, Rule 1 & 2, CPC. Respondents No.3 to 6/defendants entered appearance and filed their written statement to the suit as well as reply to the application. The learned Civil Judge after hearing the arguments on the application, dismissed the same vide order dated 17.06.2022. The petitioner feeling aggrieved of the said order filed an appeal before the learned Additional District Judge, which was also dismissed vide judgment dated 05.10.2022, hence, this petition.
3. Learned counsel for the petitioner contended that the impugned order and the judgment are against the law and facts of the case; that the impugned order and the judgment are based upon misreading and non-reading of material available on record; that the learned Civil Judge while passing the impugned order wrongly relied upon the report of revenue officials.
4. I have heard learned counsel for the petitioner and perused the record.
5. Perusal of the record reveals that the petitioner is tenant of the original owner/respondent No.5 in the Suit Property. Admittedly the Suit Property falls in Khasra No.3346, wherein respondents No.3 to 5 are co-sharer. The demarcation report dated 22.04.2019 prepared by the revenue officials reflects that the Suit Property is joint and there is also no evidence that the same has been partitioned in accordance with law. It is centuries old settled law that every co-sharer in joint property is considered to be in possession of each and every inch of the joint property until the same is partitioned in accordance with law, therefore, the petitioner has no prima facie case.
6. Moreover, a co-sharer cannot seek injunction against the other co-sharer for protection of his rights without seeking partition. If a co-sharer is dispossessed from the joint property in his/her possession by any other co-sharer, the remedies lie for regaining his/her possession either in a suit u/s 9 of the Specific Relief Act, 1877 or by way of a suit for partition. Reliance is placed upon Fazal Karim and 2 others vs. Mehboob Khan (Deceased) through his Legal Heirs, (2024 CLC 699 Lahore).
7. In view of the above discussion, I hold that both the Courts below have passed the impugned order and the judgment in accordance with law. No illegality, misreading and non-reading of the available record has been found. Consequently, the instant writ petition is dismissed in limine due to lack of merit.