MUHAMMAD MUNIR KHAN- J. On 10-4-1979, Muhammad Hussain petitioner filed a suit for declaration to the effect that the registered sale deed dated 14-1-1979 in favour of Asghar Ali, Bashir Ahmad and Nazar Hussain respondents/defendants was void, illegal and ineffective against his rights, in the Court of Senior Civil Judge, Gujranwala. As a consequential relief, it was prayed that the defendants be restrained from interfering in his possession over the suit land.
2. The suit was resisted, whereon i.e issues were framed. The parties produced their evidence. The petitioner produced Liaqat Ali PW-1 and Sher Muhammad PW-2. He himself appeared twice as PW- 3 and PW-4. He tendered documents Ex.P.I to Ex.PT. To rebut this evidence, the defendants produced Ghulam Haider DW-1. Asghar Ali, one of the defendants, appeared as DW-2. They tendered copy of Jamabandi Ex. D.l, original sale deed Ex. D.2, copy of judgment Ex. D.3 and copy of decree-Sheet Ex. D.4. In view of its findings on issues no.4, 4-A and 5, the trial Court dismissed the suit on 30-6-1986. The appeal filed by the petitioner against this judgment and decree was dismissed by the learned Addl. District Judge, Gujranwala, on 17-9-1989. Hence this revision.
3. Before me, the learned counsel for the petitioner has challenged the findings of Courts below on issue No.5 only, which is as Under:-- "Whether the plaintiff is the exclusive owner in possession of the suit land?OPP.
The learned counsel for the petitioner has frankly and rightly conceded that the Petitioner/plaintiff was/is not the exclusive owner of the suit land. However, he. Argued that since it has been admitted by Asghar Ali DW-2 that the petitioner was in possession of the suit land at the time of sale and also at the time of his statement before the trial Court, therefore, the defendants, although co- owners/co-sharers in the suit land, cannot forcibly eject him and, as such, he was/is entitled to the permanent injunction prayed for in the suit. Reliance has been placed on Muhammad Nadir Khan Vs. Jam Khair Muhammad (1989 CLC 1310), Muhammad Shafi. Vs. Munshi (1979 CLC 230), Mst.
Khuteia Bibi Vs. Zulmat Khan (1968 Dacca 172) and Ahmad Meiji. Vs. Eakub Ali Munshi (1961 Dacca 259).
4. I have considered the submissions made by the learned counsel for the petitioner with care. I do not feel persuaded to agree with him. I find that issue No.4, which reads as under:- "whether the registered sale deed dated 14-1-1979 is illegal, void and ineffective as against the rights of the plaintiff?OPP.
Was found against the petitioner. Neither the findings of the Courts below on this issue have been challenged nor the genuininess of the registered sale deed in favour of the respondents, has been questioned before me. The suit land is part of a joint Khata. The respondents/defendants being the co-owners/co-sharers are presumed to be owner in possession of each inch of the suit land. At this stage, the learned counsel for the petitioner decided not to press for the declaration sought for in the suit. He only insisted upon the grant of permanent injunction restraining the respondents from interfering in the petitioner's possession of the suit land. I am afraid that prayer for injunction being a consequential relief, a declaratory decree is a condition precedent because unless the declaration is granted, the question of the grant of consequential relief will not arise. A co-owner in the land cannot and should not be restrained from entering into it or interfering with the physical possession of another co-owner. If the prayer or the is allowed, then this would amount to laying a dangerous precedent authorising one of the co-sharers to take forcible possession of any valuable portion of the joint property/land and then i.e a suit for permanent injunction restraining the other co-owner/co-sharer from interfering with his possession. This will also frustrate the law relating to the partition of the joint property. Furthermore, the relief under sections 42 and 54 of the Specific Relief Act and under section 115 of the CPC are discretionary in nature. In the peculiar circumstances of the case, I do not desire to exercise my discretionary revisional powers in aid of the petitioner. The case-law relied on by the learned counsel for the petitioner does not apply to the facts of this case.
5. Pursuant to the above discussion, there being no merit, the revision is dismissed in limine.