' This revision is against the order of the learned Additional Distt. Judge, Rawalpindi dated 17-9-1988 and the order of the learned Civil Judge dated 17-3-1985 by virtue of which application for temporary injunction was refused.
2. The salient features of this petition are that Malik Paiker Maqsood and 106 others, herein petitioners, are the plaintiffs while Sh. Muhammad Amin and 637 others, herein the respondents, are co-sharers. The property in dispute in this case is 635 kanals 17 marlas in mauza Churharpal Rawalpindi. The said land is Shamilat Deh (Abadi Deh) of Mauza Churharpal. The said village stands absorbed in Cantonment, Rawalpindi and has become urban property since 1960. It is situated alongwith the both sides of Peshawar Road. Sh. Muhammad Amin is vendee from the different co-sharers through various Registered Sale Deeds which are not necessary to be mentioned, suffice it to say that his entitlement in Shamilat Deh aggregates 187 kanals by virtue of the Sale-Deeds. He is a property dealer and he has purchased the land from various co-sharers in order to carve out the new colonies.
3. Malik Paiker Maqsood and others filed a suit for partition of Shamilat Deh and also gave an application for temporary injunction restraining respondent No,1 from alienating the land, from raising the construction over the land in dispute and from further changing the character of land.
The application was refused by both the trial Court as well as the first Appellate Court on the ground that the applicants/plaintiffs have not prayed for relief of permanent injunction and, therefore, the relief for temporary injunction was not found to be tenable. Accordingly, the plaintiffs got their suit amended by adding the relief of the permanent injunction with the permission of the first Court vide order dated 16-1-1985 and repeated the application for issuance of temporary injunction. This application also was refused by the trial Court by order,dated 17-3-1985 and by first Appellate Court by order dated 17-9-1988. Hence this revision petition.
4. Learned counsel for the petitioners in support of this petition contended that both the Courts below have overlooked the guiding principles for the grant or refusal of temporary injunction i.e, prima facie case, irreparable injury and balance of convenience. It was contended that the land in dispute was Shamilat Deh, that admittedly, the petitioners and the respondents were co-owners, that the land had become urban in nature and was of enormously high value. It was contended that respondent No,1 was a professional property dealer, was dealing with the purchase and sale of residential plots, that he purchased the hissa from various co-sharers, got forcible possession in shamilat deh and started to make sale by changing the land into small residential as well as commercial plots. It was maintained that the land forming the frontage alongwith the road was commercial in nature while the land on the back side was of a residential in nature. The petitioners were entitled to the corresponding share in land on the frontage.
5. It was further contended that the petitioners were owners in every inch of land and respondent No,1 was occupying and selling the land on frontage in order to deprive the petitioners of their valuable rights. It was urged that in this manner an irreparable injury was being caused. It was further pointed out that the petitioners had a very strong prima facie case and balance of convenience was in favour of the petitioners and if the respondents were not restrained, they will make the sale of the part of the land which was of commercial value and so the petitioners will be caused irreparable mischief and exposed to multiplicity of litigation against the incoming vendees.
6. In reply, the learned counsel for the respondents submitted that respondent No,1 was in possession of land to the extent of his entitlement, that he was a co-sharer and was entitled to use the land under his possession till the partition was completed. It was further suggested that the sales and constructions were made by the vendees from him at their risk, that he had given a clear undertaking that if the land in possession of respondent No,1 went to the share of the petitioners, he will dismantle the construction without claiming any compensation. Reliance was palced on Fazal Begum widow and others v. (Sh) Ijaz Ahmad and others 1985 SCMR 1928.
7. It was further contended that the orders of both the Courts below were eminently just and did not suffer from any jurisdictional mistake, therefore, these orders were not open to interference in the revisional jurisdiction of this Court. Reliance was placed on Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner Khairpur and another PLD 1970 SC 139.
8. I have gone through the arguments of the parties and examined the record. I am afraid both the Courts below have not taken care of examining the pleadings of the parties. It is very clear from the perusal of the reply of respondent No,1, that he claims possession of 101 kanals of land in Khasra No,1130. Respondent No,119 stated in the written reply that he had purchased three commercial plots bearing Nos. 9, 10, 11 (3 marlas and 49 sq. Ft.) by Registered Sale-Deed. It was further alleged in the reply that Sh. Muhammad Amin had made commercial and residential plots of land which he had purchased from the co-sharers. It was also alleged that Sh. Muhammad Amin had further sub-divided the plots into small commercial and residential plots and has alienated to many vendees. Respondents Nos. 2, 3, 7, 8 and 250 also took up the same stand. Very clearly, respondent No,1 appears to be a property dealer who had purchased hissadari qabza from the respective co- sharers, then has embarked upon a scheme of dividing and sub-dividing the land under his possession into commercial and residential plots and had been so introducing the numerous vendees and thereby has been changing the nature of the land. The argument of the learned counsel for the petitioners that a co-sharer cannot be allowed to appropriate land forming part of shamilat deh to his own use and so deprive the other co-sharers, has a lot of force. It is a well- settled rule that a co-sharer in exclusive possession of site in the abadi deh cannot use it in any manner which alters its joint character or is otherwise inconsistent with the rights of the other co- sharers or is likely to cause such loss to them as cannot be made good at the time of the partition.
In case he attempts to do so, he may be restrained by means of an action provided the action is brought without any reasonable delay and the other proprietors do not stand by while such co- sharer spends such money on the site. This proposition came up for consideration in Akshay Kumar Shaha v. Dhajagobinda Shaha AIR 1930 Calcutta 341.
9. In Jan Muhammad's case, the plaintiff instituted a suit for permanent injunction restraining the respondents from raising construction over land which was abadi-deh. Temporary injunction was issued to defendants restraining them from further construction. The construction was, however, completed in defiance of injunction. The learned trial Court decreed the suit calling a mandatory injunction for demolition of the building. The learend Additional District Judge, confirmed the judgment of the learned trial Court. On appeal the High Court also dismissed the appeal. A.R.
Cornelius, A.C.J. On the question of material and substantial injury observed:-- "Finally, there is the question of material and substantial injury. Assuming, without holding, that in a case of the present kind it is necessary for the plaintiffs to show that the threatened act involves material and substantial injury to their rights or to the rights of the other co-sharers, it seems to me on careful consideration of all the circumstances, that where rights in a limited area of land have been bought at a comparatively high price by a considerable number of persons, who intend to exploit it and convert it to industrial uses, if one of their members does not wait until the land has been partitioned by metes and bounds, but seizes upon the plot which suits him best, and builds thereon, such an action cannot but produce material and substantial injury to each one of the other co-sharers. The consideration that the person so offending has not exceeded the area which may eventually fall to his share at partition, is by no means conclusive of the matter, for the plot he selects may be so situated and of such a quality that the building constructed thereon may permanently deprive all the other co-sharers of their share of the same advantage, and something of the kind is suggested in this case when it is said that the defendants' building is almost exactly opposite the entrance of the Bata Factory. Nor is it a complete reply on behalf of the defendants that they are willing to face the possibility of this land being taken away from them and their buildings demolished, at ultimate partition. When partition is sought to be effected, the defendant's existing possession will have to be respected, and even though the partitioning authority will not be powerless to adjust equities arising in favour of the several co-sharers, it is evident that the defendant will have gained a permanent advantage as against the other co-sharers by their present action. That the rights of all the co-sharers can be duly worked out and allowed, if necessary, in terms of money at the time of ultimate partition, is not the governing consideration in a case where there is no lathes nor any indication of long continued user not consistent. With the original intention, nor of any acquiescence in changed user nor of such change in the character of the property as would completely take it out of the operation of Article 225 of Rattigan's Digest".
10. The same principle has been followed in Qamar Ali Shah v. Waryam and three others 1976 SCMR 393 and Aligohar Khan v. Sher Ayaz and others 1989 SCMR 130. In the latter precedent, the respondent filed a suit for issuance of permanent injunction restraining from raising construction over the land measuring 4 kanals 13 marlas in village Baj on the ground that the suit land was a joint holding. The first Court decreed the suit. The learned first Appellate Court reversed the decision of first Court. The High Court maintained the decision of the learned Appellate Court. On appeal the Hon'ble Supreme Court of Pakistan reversed the judgment of High Court as well as the first Appellate Court and observed as follows:-- "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."
11. Applying the aforesaid principles to the facts of the case it is very clear that the petitioners had a very strong prima facie case, that the balance of convenience which is in fact a balance of inconvenience is in favour of the petitioners, withholding of the relief shall result into the carving of more plots and introduction of new vendees who will go on changing the nature of the suit despite the fact that the suit for partition is pending conclusion. It is an admitted position that the Court has passed a preliminary decree, the Local Commissioner had submitted the report in respect of the mode of the partition and the first Court is now to decide the case. In the context of such a situation, the refusal of grant of injunction will amount to irreparable mischief to the real co-sharers in Shamilat Deh at the cost of respondent No,1, who is professional property dealer and his undertaking is not adequate. The authorities cited by the learned counsel for the respondents proceed on different facts and different situations. In Feroz v. Sher and others PLD 1985 SC 254, the proposition was whether a co-sharer can make a sale of land in his possession as Hissadari qabza.
The proposition in hand was not under consideration in the aforesaid authority. Similarly, Muhammad Akram v. Rehmat Khan and others PLD 1986 Lah. 68 and Fazat Begum widow and others v. (Sh) Ijaz Ahmad and others 1985 SCMR 1928 are not applicable in this case.
12. In view of the above discussion, it appears quite clear that neither the first Appellate Court nor the learned trial Court had examined the application for temporary injunction inconsonance with the principles laid down by the superior Courts. The contention of the learned counsel for the respondents that the orders of both the Courts below have been passed in the discretionary domain of jurisdiction and are not open to interference in revisional jurisdiction is not tenable, in view of my aforesaid finding. If the revisional Court comes to the conclusion that the subordinate Courts have disallowed the application for injunction in disregard of the principles of the prima facie case, irreparable injury and balance of convenience, it has the full power to do the complete justice between the parties and grant the relief in order to preserve the status quo of the property.
It was held in Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 that "in a case where the temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. Where these conditions are satisfied injunctions can rightly be issued by Courts". In this case, the Supreme Court accepted the appeal, set aside the order of the High Court and restored the order of the subordinate Judge by which an injunction was issued. Similarly, in Muhammad Azeem and others v. The Municipal Committee Montgomery PLD 1967 Lah. 218, in the revisional jurisdiction, the Court came to the conclusion that the injunction was declined by subordinate Courts in disregard of the rule laid down by the superior Courts and injunction was granted.
13. For whatever has been stated above, I have come to the conclusion that the order of the Additional District Judge dated 17-9-1988 and that the Civil Judge, dated 17-3-1985 disallowing the application for temporary injunction suffers from overlooking the rules laid down in the authorities of the superior Courts and, therefore, cannot be maintained.
14. In the result I accept this petition, set aside the order of the learned Additional District Judge, dated 17-9-1988 and that of the Civil Judge dated 17-3-1985, and pass the temporary injunction restraining the respondents from alienating the land in dispute and from changing the nature of the land in dispute in any manner. The trial Court is directed to dispose of the suit for partition within four months of the receipt of this order positively. There shall be no orders as to costs.