2022LHC1774

Form No: HCJD/C-121
ORDER SHEET
LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Civil Revision. No. 10864/2022
-ul-Haq, etc Versus Muhammad Ismail, etc.

Date of order/ Order with signature of Judge and that of
Proceeding parties or counsel, where necessary.
02.03.2022 M/s Azhar Abbas and Mian Qamar-ul-Islam, Advocates.
Petitioner is aggrieved of judgment and decree of 03.12.2021, whereby first
appellate court allowed appeal of the respondents No.1 to 9 (contesting respondents)
and set-aside decree dated 29.09.2021 by way of rejection of plaint of contesting
respondents.
2. Facts necessary for deciding instant revision are that respondents No.1 to 3
and respondents No.4 to 9 filed suits for partition against petitioners No.1 and 2 and
other co-sharers, which is currently pending adjudication. Petitioners No.1 & 2,
pendente-lite partition suits, allegedly alienated their share to petitioner No.3 –
measuring 9-K & 12-M – through registered sale deed, with specific details.
Contesting respondents filed suit for declaration and permanent injunction –
disputing specific description of property and seeking injunction qua construction
intended to change the nature of the property, to the prejudice of the co-sharers.
Plaint was rejected being non-maintainable in law. Contesting respondents
successfully filed appeal, decree of rejection of plaint was set-aside and matter
remanded to the learned trial court. Hence this Civil Revision.
3. Learned counsel for the petitioner contends that suit, claiming declaration
regarding co-owned property is not maintainable and partition suits are pending.
Adds that irrespective of sale of share through registered deed with specifications,
no prejudice would be caused to the co-sharers and co-owners would be bound by
the decree of partition. And sale of share by co-sharer is not an illegality, as
transferee would step in shoes of the transferor / co-owner. Learned counsel has
referred to the judgments of cases “Muhammad Muzaffar Khan Vs. Muhammad
Yusuf Khan” (PLD 1959 Supreme Court (Pak) 9), “Abdur Rehman Vs.
Muhammad Siddique through L.Rs” (2006 MLD 442), “Syed Agha Hussain Shah
Vs. Muhammad Sadiq and others” (2006 MLD 1008), “Mst. Roshan Ara Begum
and 8 others Vs. Muhammad Banaras and another” (2016 YLR 1300), “Mst. Bibi
Jan and another Vs. Mir Zaman and 19 others” (2003 CLC 909) and “Ashiq
Hussain Vs. Prof. Muhammad Aslam and 9 others” (2004 MLD 1844).
4. Learned counsel was asked to show whether specific details of the property,
as specified in the sale deed, were described in the written statement in partition
suits, he conceded that no specific details / description was identified therein. It is
evident that details provided in the sale deed manifests improvement in the case. If
submissions are appreciated that notwithstanding execution of sale deed, containing
specific details of land, no prejudice shall be caused to the respondents No.1 to 9 and
sale deed would be subject to decree of partition, petitioner No.3 may volunteer
statement before the court, where case was remanded.
5. The critical issue is claim of change of the nature of the property and
injunction sought to stall any such attempt, in the garb of construction. Submissions
that suit for declaration is not maintainable, inter-se co-owners and no restriction
could be imposed on the right of one of the co-sharers to sell share, are fair and
appears lawful but contentions that suit for injunction was not maintainable, in view
of the facts narrated in the plaint – allegation of change of nature of the property -,
are misconceived and result of misconstruction of law. I have examined threadbare
the case-law referred and relied upon, which is not relevant to the controversy and
not attracted in view of facts of the case. Question of maintainability of suit for
injunction, in wake of allegation of change of nature of joint property by one of the
co-sharers came up for adjudication before the august Supreme Court of Pakistan in
the case of “Ali Gohar Khan Vs. Sher Ayaz and others” (1989 SCMR 130), relevant
portion whereof is reproduced hereunder as;
“The question now is whether a co-sharer in such a situation can

deal with a joint property in the manner he likes without the
express permission of other co-sharers and to their detriment.
The answer obviously is in the negative as it is a settled principle
of law that in case of joint immovable property each co-sharer is
interested in every inch of the subject matter irrespective of the
quantity of his interest. A co-sharer thus will not be allowed to
act in a manner which constitutes an invasion on the right of
the other co-sharers. A co-sharer in possession of a portion of
the joint property, therefore, cannot change the nature of the
property in his possession unless partition takes place by metes
and bounds. In the circumstances we think the learned District
Judge was justified in law in passing a decree of perpetual
injunction in favour of the appellant.”
6. Learned counsel emphasized the ratio of decision in the case of Ashiq Hussain
(supra), facts whereof are different, wherein dictum was laid in the context whereof
co-owners seek injunction to restrain co-sharer from sale of share – in which context
suit for injunction was held not maintainable in law. This is different.
7. In view of aforesaid, no illegality was committed by learned appellate court
in reversal of decision of rejection of plaint, in view of the facts of the case. No case
for interference is made out under revisional jurisdiction.
8. Civil revision is, hereby, dismissed. No order as to costs.
(Asim Hafeez)
Judge
D FOR REPORTING

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Form No: HCJD/C-121

Civil Revision. No. 10864/2022

-ul-Haq, etc Versus Muhammad Ismail, etc.

appellate court allowed appeal of the respondents No.1 to 9 (contesting respondents)

and set-aside decree dated 29.09.2021 by way of rejection of plaint of contesting

other co-sharers, which is currently pending adjudication. Petitioners No.1 & 2,

pendente-lite partition suits, allegedly alienated their share to petitioner No.3 –

Contesting respondents filed suit for declaration and permanent injunction –

disputing specific description of property and seeking injunction qua construction

Plaint was rejected being non-maintainable in law. Contesting respondents

remanded to the learned trial court. Hence this Civil Revision.

no prejudice would be caused to the co-sharers and co-owners would be bound by

the decree of partition. And sale of share by co-sharer is not an illegality, as

suits, he conceded that no specific details / description was identified therein. It is

submissions are appreciated that notwithstanding execution of sale deed, containing

statement before the court, where case was remanded.

are misconceived and result of misconstruction of law. I have examined threadbare

injunction, in wake of allegation of change of nature of joint property by one of the

portion whereof is reproduced hereunder as;

“The question now is whether a co-sharer in such a situation can

7. In view of aforesaid, no illegality was committed by learned appellate court

for interference is made out under revisional jurisdiction.

8. Civil revision is, hereby, dismissed. No order as to costs.

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