' This civil revision is directed against the order dated 5-1-1998 passed by the learned Additional District Judge, Gujjar Khan whereby he confirmed the order dated 16-5-1997 rejecting the application for temporary injunction moved by the plaintiff/petitioner in a suit for declaration with consequential relief filed against the defendants/respondents.
2. Briefly stated the facts are that plaintiff/petitioner filed a suit for declaration claiming himself to be a co-owner of land measuring 369 Kanals and 9 Marlas bearing Khasra No,1913 situated in village Sohawa Mirza Tehsil Gujjar Khan, that defendants/respondents who claim themselves to have purchased a piece of land, be restrained from raising any construction on a specific portion of suit land without getting it partitioned. As a consequential relief he claimed that defendants/respondents be restrained from changing its nature. He also moved an application for interim injunction praying that defendants/respondents be restrained from changing the character of the suit land during the pendency of this suit. Both the suit as well as application for interim injunction were resisted by the defendants/respondents.
3. The trial Court dismissed the application for interim injunction vide order, dated 16-5-1997. The appeal filed against the said order was also dismissed by the learned Additional District Judge, Gujjar Khan vide order dated 5-1-1998. Hence the instant Civil Revision.
4. Arguments have been heard and record perused.
5. It is contended by the learned counsel for the plaintiff/petitioner that admittedly on petitioner is a co-owner of land measuring 369 Kanals and 9 Marlas and the defendants/respondents have also purchased land measuring 10 Marlas out of the said land, that defendants/respondents are now bent upon to take possession of the most valuable portion and to change its character by raising construction thereon, that every co-sharer is entitled to retain his entitlement in every inch of land unless the same is partitioned and any co-sharer can't be allowed to alter its nature and relied upon Ali Gohar Khan v. Sher Ayaz and others (1989 SCM R 130), Malik Paiker Maqsood and 106 others v. Sh. Muhammad Amin and 637 others (1991 M LD 106), Akhtar Nawaz Khan and another v.
Danial Khan and 2 others (1995 PSC 207-SC). He further contended that even the possession of land purchased by defendants/respondents has not been physically delivered to them and mere recital in the sale-deed that possession has been delivered is not sufficient to prove the delivery of possession and placed reliance upon Qazi Muhammad Dawood and another v. Muhammad Ayub and another (1985 SCM R 1966). He, thus, submitted that plaintiff/petitioner was entitled to the relief claimed by him and both the Courts below have not exercised the jurisdiction vested in it properly.
6. Conversely the impugned orders have been supported by the learned counsel for the defendants/respondents. He contended that they have been delivered the possession and are ready to give an undertaking that they would raise the construction at their own risk and cost and would not claim any damages, if they fail to substantiate their stand. He further submitted that in the light of such undertakings permission to raise construction has been granted by the Superior Courts and relied upon Zakiya Khatoon v. Roomi Enterprises (1995 SCM R 753) and Haji Shahjahan Khan v. Aurang Zeb Khan and another (PLD 1995 SC 462). He, thus, submitted that both the Courts below have passed the impugned orders in accordance with law and impugned order cannot be interfered with by invoking revisional jurisdiction of this Court and relied upon Fazal Din v. Mst. Umar Bibi and another (1994 M LD 550).
7. From the facts stated above it is clear that both the parties claim themselves to be joint owner in the suit land measuring 369 Kanals and 9 Marlas described fully in the head note of the plaint. The stand of plaintiff/petitioner is that unless said land is got partitioned, defendants/respondents can't be allowed to change its nature. On the other hand, the contention of defendants/ respondents is that as they are ready to give an undertaking that they would raise construction at their own risk and costs and would not claim damages, so they should be allowed to raise construction over the suit land. Both the learned counsel have referred to authorities in support of their respective stand.
Learned counsel for the defendants/respondents has mainly relied upon 1995 SCM R 753, wherein permission was granted on the basis of such undertaking. A perusal of said authority reveals that facts of said case are not identical to the facts in hand. In the said case, construction on various plots had already been raised and the said property had already changed its character. It was under these circumstances that permission to raise construction was allowed Subject to furnishing undertaking. In the case in hand, the position is entirely different, as there is nothing on the record to suggest if some construction has already been carried out on the spot. Thus under these circumstances, defendants/respondents can't be allowed to change the nature of suit property merely on the ground that they are ready to give an undertaking, as that would amount to give a premium to the petitioner and to create more complications for the parties. It may be noted that appellate Court has held that as defendants/respondents have been shown to be put in possession in the sale-deed, so they are deemed to be in possession. This contention is not based on correct appreciation of legal proposition, as mere recital in the sale-deed is not sufficient to prove the delivery of possession, unless the same is supported from other evidence as held in 1985 SCM R 1966 (Supra). A perusal of Jamabandi 1990-91 reveals that all co-sharers are still in possession of the entire land jointly, so the question of delivering a specific portion of suit land to the defendants/respondents cannot be believed without any further proof. Accordingly revision petition is accepted. Both the impugned orders are set aside and defendants/respondents are restrained from changing the character/nature of suit land till the pendency of suit. As suit is pending since March, 1996 so the trial Court is directed to dispose of the same within a period of six months from the date of communication of this order.