ORDER-SHEET
IN THE ISLAMABAD HIGH COURT,
ISLAMABAD
JUDICIAL DEPARTMENT
Civil Revision No. 179 of 2023
Pervaiz Akhter
VERSUS
Muhammad Ilyas, etc
Date of Hearing : 12.09.2024.
Appellant by : Mr. Aftab Alam Yasir, Advocate
Respondent by : M/s. Zulfiqar Ali Abbasi and Shahid
Munir, Advocates
________________________________
ARBAB MUHAMMAD TAHIR, J.- This revision
petition under Section 115 of the Code of Civil
Procedure, 1908 (“CPC”) stems out from the
Judgment & Decree dated 19.10.2023 (Impugned
Judgment), whereby the learned Additional District
Judge-East, Islamabad, while dismissing the appeal
preferred by the petitioner, affirmed the Judgment &
Decree dated 20.07.2023 (Impugned Judgment)
passed by the learned Civil Judge-East, Islamabad,
resulting into dismissal of suit instituted by the
petitioner, reasoning thereby that petitioner has no
cause of action against the respondents. Since suit
instituted by the petitioner is dismissed while invoking
the provisions of Order VII Rule 11, CPC, so leaving
desultory details apart, only necessary facts are to be
highlighted.
C. R. No.179 of 2023.
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2. The barebones of the case are that petitioner
filed suit for Declaration and Permanent Injunctions
contending therein that he is owner in possession of
the land measuring 16 Marlas purchased vide Mutation
No. 713 dated 16.07.1996; that the respondents
submitted their written statements and controverted
the stance of the petitioner while contending that they
have purchased land measuring 10 marlas falling in
the same khasra i.e Khasra No. 453 vide registered
sale deed dated 09.11.2017 and they are in
possession of their piece of land; that trial court vide
order dated 07.10.2020 appointed Revenue Officer as
Local Commission to submit report with regard to the
controversy between the parties; that report was
submitted on 15.07.2021 whereby petitioner and
respondents were reported to be owners of land
measuring 16 marlas and 10 marlas, respectively in
same khasra; that petitioner filed objections upon the
report of Local Commission; that vide impugned
judgment, suit of the petitioner was dismissed being
not maintainable against co-sharers; that feeling
aggrieved, the petitioner preferred an appeal but of no
avail and the appeal was also dismissed vide
judgment dated 19.10.2023, hence, instant revision
petition.
3. Learned counsel for the petitioner submitted that
even a co-owner can institute a suit for injunction for
the protection of his proprietary and possessory
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rights. He added that the petitioner has been non-
suited on extraneous grounds. In support of his
contentions, learned counsel has placed reliance on
1993 SCMR 2357, 1989 SCMR 130, 2004 SCMR 1036,
2003 MLD 727, 2003 SCMR 318, 2019 SCMR 84 and
PLD 2023 SC 362.
4. On the contrary, learned counsel for the
respondents submitted that a co-sharer/co-owner is
precluded to institute a suit for injunction and he has
only a remedy to seek partition from the Court of law.
It is added that findings of both the Courts below are
concurrent and unexceptionable. Reliance to this
effect is placed on 2019 SCMR 84, 1999 SCMR 2325,
2023 MLD 733, PLD 2023 Lahore 502, 2024 SCMR
916, 2023 SCMR 2103, 2022 SCMR 933, 2007 SCMR
741, 2001 MLD 1159, 1992 MLD 225 and 2000 CLC
1673.
5. Heard, record examined.
6. While skimming through the record, a sole
question has raised that “As to whether a suit for
injunction simpliciter inter-se co-sharers/co-owners is
proceedable or otherwise?”. In general, injunction can
be issued between co-sharers in a legal proceedings,
especially if there is a dispute over the property or
interest. However, the specifics depends on the
circumstances of the case, therefore, while keeping in
mind the circumstances of the present case, the moot
point involved is “as to whether a co-sharer/co-owner
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can institute a suit for injunction for the protection of
his rights without seeking partition”. The above
question, for the first time, came under discussion
before Supreme Court of Pakistan in the case of “Ali
Gohar Khan v. Sher Ayaz and others” (1989 SCMR
130). The relevant extract from the same is
reproduced below: -
“6. The sole question which needs
consideration in this case is whether in
the facts and circumstances of the
present suit a decree for perpetual
injunction can be issued. As the record
stands, the respondents had purchased a
portion of the land from a joint Khata and
dumped stones for raising construction
over the same. The report of the
Commissioner though may not be
germane to the pleadings of the parties
but is relevant to the extent that the suit
property is jointly owned by the parties
and no partition in any form has yet
taken place. Furthermore, the fact that
the property in suit is joint and no private
partition amongst the parties has taken
place stands finally decided by the Civil
Judge vide his order dated 9-1-1975.
Therefore, it can be said without any fear
of contradiction that the parties are co-
sharers in the suit property. 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
C. R. No.179 of 2023.
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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.”
7. Latter in the case of “Akhtar Nawaz Khan, Etc. v.
Danial Khan, Etc” (NLR 1995 SCJ 169), the Supreme
Court of Pakistan, with a majority view, has held that
every joint owner is interested in every inch of the
joint property so long as partition by metes and
bounds does not take place among the co-sharers and
each individual/co-sharer is allotted his exclusive
share and that every co-sharer has the right to stop
the other co-sharer(s) from changing the nature of the
property to his detriment.
8. It is well-established by now that every co-
sharer, in possession of the joint property to the
extent of his share in the entire joint property has a
right to make use of it in the manner he likes without
hindrance by the other co-sharer(s) and if they feel
aggrieved by the conversion of the user by the co-
sharers, their remedy is to go for the partition and get
their share separated. Since in the case of
“Muhammad Rafiq and others v. Sardar and others”
(2004 SCMR 1036), the Supreme Court of Pakistan
reiterated the principles laid down in the case of Ali
Gohar Khan supra by holding that in a case of joint
ownership, suit for declaration by one of the joint
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owners is maintainable, but the circumstances of the
case were altogether different, therefore, said
preposition is not attracted to this case.
9. After having a wade through the principles laid
down from time to time with regard to the proposition
in hand, it evinces that the question framed
hereinabove is not so frizzy or ticklish. Law is
consistent to this effect that every co-sharer/co-owner
is owner in each and every inch of the joint property
until it is partitioned by metes and bounds. It is also
an oft repeated principle of law that a co-sharer/co-
owner cannot change the nature of the joint property
or raise construction without consent of the other co-
sharers/co-owners. If a co-sharer is dispossessed
from the joint property in his/her possession by any
other co-sharer, the remedy lies for regaining his/her
possession either in a suit under Section 9 of the
Specific Relief Act, 1877 or by way of a suit for
partition.
10. Another argument stressed by the petitioner’s
counsel was that the trial court non-suited the
petitioner in purview of order VII Rule 11 CPC without
adverting the attention that since issues were framed
and the objections on the report of Local Commission
were stood infield by putting off the matter for
recording of evidence as the grounds of order VII Rule
11 CPC were not met out. This argument is hereby
repelled by holding that there is no cavil with the
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propositions of law that the provisions of Order VII
Rule 11 CPC should be set into motion at the first
available opportunity in order to ensure that a suit if
not well founded in law should be laid to rest, so that
further time is not wasted in fruitless litigation.
Guidance is taken from the case of “Burmah Eastern
Limited Vs. Burmah Eastern Employees Union” (PLD
1967 Dacca 190).
11. In addition to the above discussion on merits,
the interference of this Court in revisional jurisdiction
under Section 115 CPC is concerned, the scope,
extent and domain of revisional jurisdiction of this
Court has elaborately been dilated upon by the
Hon'ble Apex Court in its judgment titled “Nasir Ali Vs.
Muhammad Asghar” (2022 SCMR 1054) whereby it
was held that Section 115 CPC empowers and mete
out the High Court to satisfy and reassure itself that
the order of subordinate court is within its jurisdiction;
the case is one in which the court ought to exercise
jurisdiction and in exercising jurisdiction, the court has
not acted illegally or in breach of some provision of
law or with material irregularity or by committing
some error of procedure in the course of the trial
which affected the ultimate decision. If the high court
is satisfied that aforesaid principles have not been
unheeded or disregarded by court below, it has no
power to interfere in the conclusion of the subordinate
court upon questions of fact or law. The scope of
revisional jurisdiction is limited to the extent of
misreading or non-reading of evidence, jurisdictional
C. R. No.179 of 2023.
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error or an illegality of the nature in the judgment
which may have material effect on the result of the
case or if the conclusion drawn therein is perverse or
conflicting to the law. Reliance is placed upon the case
of “Salamat Ali, etc Vs. Muhammad Din, etc” (PLD
2022 SC 353).
12. Considering the above facts & circumstances and
report of the Local Commission, petitioner has failed
to point out any illegality or infirmity committed by
the learned trial Court as well as learned appellate
Court while passing impugned judgments, which do
not call for any interference by this Court.
Consequently, concurrent finding passed by both the
Courts below are maintained and instant revision
petition stands dismissed. The petitioner is, however,
at liberty to avail legal remedies available to him,
under the law, if so advised.
(ARBAB MUHAMMAD TAHIR)
JUDGE
Announced in open Court on .2024.
JUDGE
Sherazi
