ABDUL SHAKOOR PARACHA, J.--- Muhammad {{BLUR PAGE}} Flaii2cIVIiriajetC.;-respOritf4nts, herein/Plaintiffs; filed suit fOr "declaratiorm;,'perpettial andc,permanent injunction against the presentpatitionerand frespondents'Nos. 14 and 15 on 17.2.20001ciThenzdeclaration sought on the ground that they ,were} dejeWrterSict the lancl.Bearihg khasra No. 178& estate of Kotha KaIan,. `RaWaltiindlilincrtlie entries in 'revenue Viifilxititionersidefendants their faVPuri'SkoWitiltj,?tfietiVirifricasesilon of the suit land, Were' fikigiftlItIongWith the suit an application under Ofsder49,,q,'Rtilesl?J-eild2 read'''itvith Ssistitrs,r1.51, CPC, fdi the ' 'grant, of: stay, WeS,,'FialSi5:: filed C-by, the res Poridents/plaintifft. 'fot ,Inebrioq,?s1 Dth be;P,
2. , The suit as ykiept..Al.The, application under Order 39, Rules 1 and 2, CPC;wergtresWecl lay thug petitioners ,filing, they writteRva0tEgilentsPflglAVIMPIAC 'J the !Application.- TheiDapplidationi fpti grapth0f-)(staw,:iwas -cdiusiiiittisett by lb& islathadl4Disit6JtJdge, tvide,the/V.' Order d 2001; by rbbeerAtitir 'tikdritittedly , 'the plaintiffs are in ptiisi,t'sl6IfilifutheirloWitlitiOrel LikeiWiSe -9 1 i.-vt-t-A"r1 Et tt' ftq the defenddnios are in tetiich}Lbi ifiatr'dWn 'share. tYfot8s loe There seems. No reason arta-TstittqatiOn to stop the pf ;i; Liet,13P "t? 0 S. Rt, ,defendants swipspij, ;hej ',legal rights with regard 1 Aq? thRif,Awn skmqy tllstplijni4ffs are aggrieved of the propgawhIsqt isktiAkFcielml: Anots3 3Rd they feel that the ,prsppted change in nature of the suit land will be detrimental to their interest, adequate relief for them is to brine callivq6is siMiletbilt-iiriiiiiiiii'-arif'bouncts. The plaintiffi'hawitlaileadtcueaddattait aprimetifweiett ease for graptorittvAmporaw ff_AqiuprAqq.bifiefusakyiceilAe7prary injunction is not likely to cause irreparable Ickss4dthe plaintiffs. Balance of gortvgniewstsp,doss not lean in their favour. So, the applicati n7or temporary injunction is rejected and tempoi'kO'driihtied status quo is hereby vacatedulk ; .L A1-1:DAFIAqx l J CNA{{BLUR PAGE}} {{BLUR PAGE}}
3. The , respondents-plaintiffs. Filed-,-en appeal against the order dated 17.9.2001 of the rearned,civil Judge. The learned Additional District,Judge,,,vide his order dated 9.4.2002 allowed the-appeal and passed the restraining order against the petitioners by accepting the application filed by the respondents-plaintiffs under Order 39, Rules,1 and 2, CPC for the grant of -stay by observing,,thati "it is well-established proposition of law that every joint owner , is in possession of each and every 'inch of jointly owned property. A joint ovvner, can -file a suit, for declaration with prayer of perpetual injunction if the adversary wants to lay hand on allegedly the most valuable part of this jointly owned property. Reliance in this regard is placed on PLJ 2002 SC 53,44 /Vitihanirnad Abid etc. v. Nisar. Ahmed. During the 'pendency of the 'suit any alienation, will lead to the complication and it will also lead to multifariousness of proceedings."
4. The learned counsel for the petitioner contends that the order of the Appellate Court is illegal; because the suit land was part of isham)lat deli and the petitioners/defendants were in possesion, of the land in dispute within their over all entitlement, _so there was no.Question of the suit land being jointlVfovvned. Further contends that the respondents-plaintiffs, were not . Entitled for the grant of temtiorary injunction because they failed to make out'lli facie case in their favour. Learced counsel for respondehts controvert the stand of the petitioner.
5. I have considered the arguments of the learned counsel for the parties and perused the record. It is well-established principle of law that three necessary ingredients i.e. Prima facie case, irreparable loss and balance of convenience may,o0-exist in favour of the party, who wants to get the restraining, order in its favour. See case of Umer Baig (PLD 1970 Supreme{{BLUR PAGE}} {{BLUR PAGE}} Court 139). Every joint owner shall be deemed to be in possession of each and every inch of joint property. The survey of the case-law would clinch the whole issue. In the case of Kashori Lal and others v. Khair Din and others (AIR 1937 Lah. 288) "Co-sharer was granted temporary injunction restraining other co-sharers from building on joint land pending suit. In appeal Court finding no necessity for temporary injunction and allowing other co-sharers to build at their own risk. It was ruled that status quo ante must be maintained, and no obligation on plaintiff co-sharer to sue for partition". Similar, view has been taken by the Hon'ble Supreme Court in the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 S.C. 9). In the case of A.I Gohar Khan v Sher Ayaz and others (1989 SCM R 130) dealing with the case of joint ownership of the property, the Supreme Court observed that In case of joint immovable property, each co-sharer deemed to be interest in every inch of subject-matter irrespective of quantity of his interest. One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharers. Co- sharer in possession of a portion of joint property cannot change--nature of property in his possession unless partition takes place by metes and bounds". The Hon'ble Supreme Court followed the above-stated view consistently in the cases of Atta Muhammad v. Sahibzada Manzoor Ahmad and others (1992 SCM R 138), (PLD 1988 Supreme Court 1509) and Muhammad Abid and 2 others v. Nisar Ahmad (PLJ 2000 SC 534). The learned counsel for the petitioner has relied on the case of Zulfiqar etc. v. Noor Muhammad, etc. (2002 CLJ 174), to contend that the remedy of the respondents-plaintiffs was to file the suit for the partition of the joint land and the restraining order could not have been passed by the learned Additional District Judge, by accepting the appeal. This arguments is not sustainable under the law. If a strong co-sharer being{{BLUR PAGE}} the adversary of poor and weak co-sharer takes possession or wants to lay hand on the more valuable part of the jointly owned properly and enjoys of the same by alienating the same or changing character of the joint land, it cannot be said that a weak and poor joint owner of the property may file the suit for partition and till the suit is decided the persons who are in possession of the property may enjoy the same by alienating or changing the character or taking the possession of more valuable property and throw his adversary in the ditches nalas or Baran land by taking commercial valuable land abetting on the road aside, or more fertilized land. This cannot be allowed under the principle of equity and justice. In these circumstances of the case and upon the touchstone of the case-law, I am of the firm opinion that the order of the learned Civil Judge dated 17.9.2001 through which the application under Order 39, Rules 1 and 2 read with Section 151, filed by the respondent, for grant of temporary injunction was illegal. All the ingredients for grant of temporary injunction i.e. Prima facie case, irreparable loss and balance of convenience, are co- exist in favour of the respondents-plaintiffs. There may be multiplicity of the proceeding if the restraining order in favour of the respondents and against the petitioners restraining the defendants/petitioners from alienating the joint property in dispute, would have not been passed by the learned Additional District Judge. The order of learned Civil Judge has been rightly set-aside by the learned Additional District Judge by accepting the appeal. No irregularity or illegality has been committed by the Court of appeal by accepting the appeal through the impugned order dated 9.4.2002.
Resultantly, this civil revision fails and is dismissed.
Revision Dismissed. {{BLUR PAGE}}