1. BASHARAT AHMAD SHAIKH, J.--- The appellant is the real sister of respondent Mukhtar Ali. Pro forma-respondents are also their sister and brothers. Their father, Ghulam Haider, died about 4 years ago. His estate consists of a house in Abadi Deh bearing Survey No.951/1 in Village Tangdev as well as land measuring one Kanal under Survey No.979 is the same village out of which there was a house built over six Marlas. The appellant as well as the respondent reside in United Kingdom. It is alleged that the respondent came to Mirpur and demolished the house situated in Survey No.979 and started fresh construction. It is further stated that the construction taken in hand by the respondent also had the effect of closing a path leading to the house of the appellant.
2. Maqsood Begum's husband, Muhammad Gulzar, came to Mirpur and filed a civil suit in respect of the path mentioned above. Mst. Maqsood Begum was cited as a pro forma respondent. The Trial Court initially issued a stay order but subsequently recalled it. Appeal taken to the District Judge failed. However, the learned District Judge recorded an observation that Maqsood Begum, if so advised, may initiate separate proceeding on the basis of her share in the estate.
3. Subsequently, Mst. Maqsood Begum filed a civil suit on 2nd October, 1997 seeking a declaration that she was owner of 1/7th share out of land measuring one Kanal under Survey No.979 alongwith a house in the said Khasra number as well as in the house in Abadi Deh bearing Khasra No.951/1. She also sought a declaration that Mukhtar Ali or other co-sharers had no right to the usufruct of the suit property to her exclusion nor were they entitled to develop it or to demolish it without getting the property partitioned. She also prayed for an injunction that the defendants may not close the passage existing in Survey No.979. A temporary injunction was issued by the Trial Court, District Judge, Mirpur. An application was moved by the defendants for vacation of the stay order but it was rejected. It was observed by him that prima facie all the heirs of Ghulam Haider jointly owned and possessed the suit property and that in such a situation any one co-sharer could not use it in such a way which alte character or otherwise was inconsistent with the rights of other co-sharers or was likely to cause such loss to them as could not be made good at the time of partition. The High Court set aside the order.
4. Mr. Muhammad Yunus Arvi, the learned counsel for the respondents, repudiated the arguments of Raja Muhammad Siddique and contended that Mst. Maqsood Begum had applied in the previous suit that she may be impleaded as plaintiff, therefore, she could not bring a suit.
5. "The order of interim injunction was set aside by the learned Additional Sub-Judge on the application of the present appellant. An appeal was filed by the respondent No. l (Plaintiff) before the learned District Judge. This appeal was dismissed. It bewilders me, that why the learned District Judge held, that plaintiff-respondent can bring fresh suit, when the learned District Judge after applying mind reached the conclusion, that the husband of the plaintiff and respondent No. l have no prima facie case, then there seems no justification for observing, that the plaintiff can file the fresh suit. Now when once the learned District Judge has reached on the conclusion, that the interim injunction could not be granted in this case, then again he was not competent to grant the interim injunction. It has been clearly held in the previous order by the learned Additional Sub- Judge and the learned District Judge, that there is no way, which is being blocked by the appellant-defendant."
6. We agree with Raja Muhammad Siddique that the observations made by the learned Judge are not sustainable. Appellant Mst. Maqsood Begum was only a pro forma respondent in the suit. The suit is still pending; only a stay application has been decided. It has not yet been decided that there was no right of way. Furthermore, the subject-matter of the previous suit filed by husband of Maqsood Begum was substantially different from the suit filed by Mst. Maqsood Begum which she has filed to assert her right as an heir. Salient features of the plaint have already been noted. The interim order issued by the Trial Court does not relate to right of way and the order is to the effect that the defendants shall not carry out any construction or alteration of the property left behind by their father. Therefore, the learned Judge was not right in observing that the learned District Judge was not competent to grant the interim relief in the present case.
7. Coming to the merits of the case, the learned Judge in the High Court did not record any other reason for accepting the appeal and vacating the interim injunction granted by the learned District Judge and only observed that even otherwise there was no justification for maintaining order of interim injunction.
8. It was contended by Raja Muhammad Siddique, the learned counsel for the appellant, that in case of joint immovable property every co-sharer is deemed to have ownership rights in every part of the property and one co-sharer cannot change the nature of property. In light of this principle he vehemently contended that respondent Mukhtar Ali had no right to demolish the house left behind by Ghulam Haider, or to carry out new construction so as to change the nature of the property. He, therefore, contended that the learned District Judge rightly issued a stay order in the case which was vacated by the High Court without legal justification. The learned counsel relied on a judgment of this Court reported as Rasib Khan and another v. Abdul Ghani and 4 others PLD 1985 SC (AJ&K)
9. 69 in which it was held that every co-sharer has interest in, and possession over, every particle of the joint property in so much so that the property and possession of one co-sharer is possession of all the co-sharers. He also relied on Ali Gohar Khan v. Sher Ayaz and others 1989 SCM R 130 in which it was held that every co-sharer is deemed to be interested in every inch of the subject-matter irrespective of quantity of his interest. It was also held that one co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharers and he cannot change the nature of property. The learned Judges held that in such circumstances a co-sharer was entitled to decree for perpetual injunction.
10. Mr. Muhammad Yunus Arvi submitted that Mst. Maqsood Begum is admittedly a co-sharer but she was not in possession of any part of the suit property and if she wanted to get her share she is legally bound to first get a decree for joint possession and then sue for partition. The learned counsel relied on Jamabandi of 1996 to prove that respondent Mukhtar Ali was in exclusive possession of the suit property. Mr. Muhammad Yunus Arvi submitted that if a property is in physical possession of a co-sharer he can sell it and can even raise construction over it. He relied on an unreported judgment of this Court titled Lai Din v. Muhammad Riaz Civil Appeal No.85 of 1991 decided on 23-12-1991 and Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75'. In Lai Din case it was held that a co-sharer can raise construction over land in his possession. In Mustafa Khan case it was held by this Court that co-sharer in possession of specific field number can validly transfer such land provided it does not exceed his over all entitlement in the whole land.
11. Mr. Muhammad Yunus Arvi's reliance on Lal Din's case decided by this Court is not entirely well- placed. In that case it was observed that if a particular part of land is in physical possession of a co-sharer he can raise construction over it. There are two features which distinguish the precedent case from the present one. It is not prima facie proved that respondent Mukhtar Ali was in occupation of the suit property. According to Misl-e-Haqiat 1991-1992 Ghulam Haider was in possession of suit property. After 4 years of Ghulam Haider's death mutation relating to inheritance was sanctioned but no entry about possession of respondent Mukhtar Ali is on record of the Trial Court. Mr. Muhammad Yunus Arvi relied on a document which he has filed in this Court for the first time alongwith the concise statement which purports to be Jamabandi 1996-97. In column No.5 relating to "name of tenant" all the heirs of Ghulam Haider are shown as tenants but it is further stated that Mukhtar Ali cultivates the land. Raja Muhammad Siddique has raised two objections about this document, namely, that it was uncertified copy and that it was not part of the Trial Court file. Both these reasons have weight and the document is excluded from consideration. In any case it as yet to seen whether, upon the death of Ghulam Haider, Mukhtar Ali can be rightly shown to be in possession of the suit property.
12. The other distinguishing feature is that in Lal Din's case co-owner wanted to raise a construction but in the present case the respondent has demolished the ancestral house without consent of the other co-sharers. This is a clear case in which property jointly owned by the heirs of Ghulam Haider has been allegedly damaged by the respondent. If proved this action cannot be legally upheld or otherwise condoned.
13. The, argument that the appellant should seek a decree for joint possession and then seek partition also has no force, because she has not filed a partition suit and also because her share in the suit property is acknowledged by the other co-sharers and is not in dispute.
14. Our attention was drawn to an affidavit filed in the High Court by respondent No. l Mukhtar Ali about which it was stated by the learned counsel for respondent No.1 that if the decree in favour of Mst.
15. Maqsood Begum is granted he will pull down the construction raised by him. We have gone through the affidavit but we find that it cannot be acted upon. Mukhtar Ali has attached a condition in the affidavit that he will pull down the construction if the land over which he is raising the construction ultimately falls to the share of plaintiff Maqsood Begum. Prima facie there was a house constructed by Ghulam Haider about which it is alleged that it has been pulled down by Mukhtar Ali. Therefore, the matter is not as simple as has been contemplated in the affidavit.
16. As upshot of the foregoing conclusion, judgment of the High Court is vacated and that of the District Judge is restored.
17. No order as to costs