' The dispute in this petition under section 115 of the Code of Civil Procedure, arises out of a suit for permanent injunction filed by the respondents against the petitioners seeking a decree for permanent injunction restraining the petitioners from raising any construction or changing the nature of the land in Mauza Rooda, Tehsil and District Khushab. The suit was contested by the petitioners and from the pleadings of the parties the following issues were framed by the trial Court, on which the parties led their evidence:- (1). Whether the plaintiffs are entitled to the decree as prayed for?
(2) Whether the plaintiffs have no cause of action; and locus standi to file this suit?
(3) Whether the suit has been filed just to harass the defendants and the defendants are entitled to special costs under section 35-A of the C.P.C.?
(4) Relief.
2. The learned trial Court by means of its judgment and decree, dated 7th of June, 1993 proceeded to dismiss the suit filed by the respondents, holding that they were estopped from filing the suit in view of the fact that the respondents/plaintiffs have themselves raised the construction over the property and, therefore, they cannot restrain the other owners. On appeal the judgment and decree of the trial Court was set aside by the learned District Judge, Khushab on 7th of February, 1995, who came to the conclusion that there was no estoppel on the part of the respondents/plaintiffs. It was further held that as the property was joint, no co-sharer has the right to raise construction over it or to change the nature of the land. On these findings the suit was decreed.
3. Malik Noor Muhammad Awan, Advocate learned counsel for the petitioners, contended that the suit filed by the respondents/plaintiffs was not maintainable and the respondents were estopped by their own conduct from filing the suit. It was elaborated by the learned counsel for the petitioners that the petitioners/defendants admittedly raised construction over a part of the property falling to their shares but earlier a civil suit was filed by the respondents against the petitioners seeking the same relief which was dismissed on 6th of November, 1990. In the last it was urged that the suit for permanent injunction did not lie and the respondents should have filed suit for partition.
4. On the other hand, learned counsel for the respondents urged that the suit was maintainable and that in any case this objection was never raised before the Courts below. The other arguments of the learned counsel for the petitioners were also controverted.
5. Although it is true that the objection as to the maintainability of the suit in so many words was not specifically raised before the Courts A below but this being a legal objection can be raised at the time of revision before this Court, which can if on the facts obtaining on the record come to the conclusion that the suit was not maintainable.
6. Learned counsel for the petitioners has placed heavy reliance on the case reported as Akhtar Nawaz Khan and others v. Danial Khan and others NLR 1995 SCJ 169, which supports the view that a co-sharer cannot file a suit for injunction but he must ask for possession through partition in which he can also claim that the other party be restrained from raising any construction. The suit for possession simpliciter was not maintainable. Learned counsel for the respondents, on the other hand, has cited the case of Ali Gohar Khan v. Sher Ayaz and others 1989 SCM R 130 in support of this contention that the suit for possession simpliciter could be filed.
7. The case of Akhtar Nawaz Khan etc. (supra) relied upon by the learned counsel for the petitioners, was examined in the later case of Ali Gohar Khan (supra) in which it was laid down that the remedy of the co-sharer in case the other co-sharer is raising any construction, is to file a suit for possession through partition. Furthermore, the case of Ali Gohar Khan (supra) was decided on 30th of October, 1989 by the two learned Judges of the Supreme Court while the case of Akhtar Nawaz Khan and others (supra) was decided by the Full Bench of three learned Judges of the Supreme Court. It is, therefore, clear that no suit for possession simpliciter should be filed by the respondents who must have asked for B partition of the land if they were aggrieved by any action of the petitioners.
8. The other objection of the learned counsel for the petitioners is again well-founded. It is an admitted fact that the respondents/plaintiffs had earlier filed a suit on the same cause of action with the same prayer which was dismissed by the trial Court on 6th of November, 1990. The same question could not be re-agitated by filing a second suit.
In view of what has been stated above, this petition is allowed, the judgment and decree passed by the learned District Judge, Khushab, is set aside and that of the trial Court restored. There shall be no order shall to costs.