' MUHAMMAD NAWAZ ABBASI, J.-This appeal by leave of the Court has been directed against the judgment, dated 12-12-1989 passed by a learned, Single Judge of Peshawar High Court, Circuit Bench Abbottabad, in a civil revision arising out of a civil suit.
2. Leave was granted vide order, dated 2-12-1998 as under:- "This petition impugns the legality of the judgment, dated 12-12-1997 of a learned Single Judge, whereby while accepting the Revision Petition filed by the respondent, the judgment and decree of the learned Appellate Court were set aside and that of the Trial Court were restored.
(2) Plaintiff/petitioner filed a suit for permanent injunction against the defendant/respondent alleging therein that the parties are co-sharer in Khasra No,977 measuring 7 Kanal 6 Marlas and without partition of this Khasra number the defendant should be prevented from construction over a specified portion of the suit property and should also be eschewed from changing the nature of this land in any manner. In the written statement the joint character of the disputed land was admitted but it was averred that the defendant being in "Hissadari" possession, because of the private partition, was legally justified to raise construction. The learned Trial Judge although held that "there is no doubt to the fact that the co-sharer has no right in law to convert the joint property to a different use without the express consent of other co-sharer," but he dismissed the suit on the basis of an affidavit filed by the defendant which contained an undertaking that if at the time of the partition the disputed property fell to the lot of the plaintiff then he would demolish the same at his own cost and would not claim any compensation for it. The learned Appellate. Court relied on the rule laid down in 1989 SCM R 130, AIR 1937 Lahore 288, AIR 1987 All. 518 and 708, AIR 1923 Lahore
205. On the basis of the rule laid down in the said judgments the judgment of the Trial Court was reversed. The High Court in revision by the impugned judgment found the Appellate Court order as incorrect and while reversing it the judgment of the Trial Court was restored.
(3)- We heard the learned counsel appearing for the petitioner.
(4) This is admitted position that the parties are co-sharers in the disputed land. The legal position as enunciated in the above judgments relied upon by the Appellate Court is that a co-sharer cannot be permitted to raise construction over joint property without consent of the other co- sharer or without partition of the joint property. We, therefore, grant leave to examine as to whether the High Court was justified in reversing the judgment of the Appellate Court, which was based on the rule laid down in the said judgments."
3. The parties are co-sharer in the disputed land. The appellant filed, a suit for permanent injunction against the respondent prohibiting him from changing the character of joint property by raising construction on the portion of land in his possession. The respondent contested the suit and during the proceedings before the trial Court, made a statement containing the undertaking for removal of the construction without claiming any damage or compensation if ultimately as a result of partition of land the portion in question would not fall in his share. In view of the above statement, the learned trial Judge dismissed the suit with the observation that the right of respondent-plaintiff in the joint property was protected. The appellant being dissatisfied, filed an appeal in the Court of District Judge and the Appellate Court while reversing the judgment of the trial Court, dismissed the suit. Muhammad Ashraf respondent then filed a revision petition in the High Court and learned Single Judge through the impugned judgment allowed the revision and by setting aside the judgment of the Appellate Court, restored that of the trial Court.
4. Learned counsel for the appellant while placing reliance on Ali Gohar Khan v. Sher Ayaz (1989 SCM R 130) contends that the possession of specific portion of the land with the construction raised on it will strengthen the claim of respondent in partition to the extent of are in question and in this way the right of appellant in the joint property will be defeated. The respondent, who is appearing in person, on the other hand has submitted that in view of the undertaking given by him before the trial Court, the apprehension of the appellant was unfounded.
5. There can be no cavil to the proposition that a co-sharer in the joint property cannot make any change in the property without the consent of other co-sharer and thus the question whether a co-sharer can deal with the joint property in a manner prejudicial to the interest of other co-sharer without his permission obviously is answered in the negative. It is settled proposition that in the joint property, ever owner in deemed to be interested in every inch of the property, therefore, one co-sharer cannot be allowed to act adverse to the interest of other co-sharer. However, a co- sharer while in possession of a specific portion of the joint property either in consequence to the family arrangement or otherwise cannot be restrained from lawful utilization of the property in his possession as per his need subject to the adjustment in the partition. In the present case, the respondent has given an undertaking for removal of the construction if ultimately the portion of land under construction would not fall to his share in the partition and consequently, the right of appellant as a co-sharer in the joint property would be protected. The appellant instead of undertaking the futile exercise of litigation in the matter should have concentrated to the availing of remedy for partition.
6. This appeal, with above observation, stands dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.