Case Law (Inheritance--Beneficiary of any transaction involving parda-nasheen and illiterate women had to prove that it was executed with free consent and will of the lady;--)

 2021 SCMR 19

(a) Inheritance.----
Parda-nasheen and illiterate women---
Beneficiary of any transaction involving parda-nasheen and illiterate women had to prove that it was executed with free consent and will of the lady; she was aware of the meaning, scope and implications of the document that she was executing: she was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her---Onus to prove such requirements was squarely upon the beneficiary.

(b) Civil Procedure Code (V of 1908)--- ---O. I, R. 10---
Punjab Land Revenue Act (XVII of 1967), Ss. 41(3) & 42(3)---
Fraudulent mutations managed through impersonation and misrepresentation---Revenue Officials, impleadment of---Scope--- Impleading Revenue Officials in every case was not a rule of the thumb; it depended upon the peculiar facts and circumstances of each case and in the event the concerned Court came to the conclusion that Revenue functionaries needed to be impleaded to enable it to arrive at a just conclusion, appropriate orders could be passed giving the concerned party an opportunity to implead them---Revenue Officials could also be summoned by either side or if considered necessary even as Court witnesses---In the present case, irrefutable documentary evidence was placed on record in order to establish fraud and in the facts and circumstances of the case impleading of the Revenue officials was neither necessary nor essential for determination of the questions before the Court---Sufficient documentary as well as oral evidence was available to establish fraud and dislodge the mutations which had clearly been maneuvered on the basis of fraud, impersonation and misrepresentation---Petition for leave to appeal was dismissed and leave was refused.






Case Law ( معاہدہ بیع --registered sale deed and transfer the suit property in favour of the present petitioner in the light of agreements)

 صرف معاہدہ بیع کی بنیاد پر کوئی شخص جائیداد کا مالک نہیں بن سکتا، جب تک معاہده بیع کی بنیاد پردعوی کرکے عدالتی ڈگری حاصل نہیں کر لیتا تب تک خریدار کے پاس کسی بھی قسم کے مکیتی حقوق نہیں ہونگے چاہے مالک نے معاہده بیع میں جائیداد خریدار کو فروخت ہی کیوں نہ کردی ہو

2020 YLR 2115


AKHTAR MEHMOOD Versus SPECIAL JUDGE (RENT), LAHORE

March 16, 2020 — LAHORE HIGH COURT LAHORE — Honorable Justice Shujaat Ali Khan — Ahsan Bhoon, Hafeez ur Rehman Chaudhary and Noor Dad Chaudhary , Mehr Abdul Shakoor — 2020 YLR 2115

JUDGMENT
SHUJAAT ALI KHAN, J.---Unnecessary details apart, respondents Nos.3 and 4 filed Ejectment Petition against the petitioner wherein respondents Nos.5 to 9 were impleaded as proforma respondents. Upon service of notice the petitioner entered appearance and filed application seeking leave to contest. The learned Special Judge (Rent), Lahore through order, dated 09.05.2019, while dismissing the application seeking leave to contest ordered for eviction of the petitioner and framed Issues relating to rate of the rent. Aggrieved by the order passed by learned Special Judge (Rent), the petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore (learned Appellate Court) vide judgment, dated 15.10.2019; hence this petition.
2. Learned counsel for the petitioner submit that though evidence of the parties was not recorded but the learned Special Judge (Rent) has referred to certain documents while portraying them as admitted between the parties; that out of seven legal heirs of Mst. Naseem Akhtar only two filed Ejectment Petition which speaks volumes about their mala fide conduct; that during pendency of suit for partition amongst the legal heirs the Ejectment Petition was not maintainable; that the factum of execution of agreements to sell by Mst. Naseem Akhtar in favour of the petitioner against a valid consideration could not be decided without recording evidence of the parties; that when the first agreement was substituted with the new one the terms and conditions of sale were to be governed under the later one; that according to the subsequent agreement to sell executed by Mst. Naseem Akhtar in favour of the petitioner in the year 2014 there was no mention regarding payment of rent by the petitioner simply for the reason that he was enjoying possession as co-owner; that non-judicial approach on the part of the courts below is evident from the fact that the case-law, referred in their decisions, is inapplicable to the facts and circumstances of the present case and that impleadment of the petitioner as defendant in the suit for possession through partition stands proof of the fact that the respondents admitted him to be co-owner. Relies on United Bank Limited Sahiwal through its Attorney v. Messrs Aziz Tanneries (Pvt.) Ltd. through its Chief Executive/MD and others 2004 CLD 1715.
3. Conversely, learned counsel representing the respondents, while defending the impugned decisions of the courts below, submits that since the petitioner entered the premises as tenant in the year 1998, without surrendering its possession to the landlord, his status did not change as owner; that according to section 10 of the Punjab Rented Premises Act, 2009 (the Act, 2009) if parties, during currency of tenancy, opt to enter into an agreement to sell or any other agreement they are supposed to firstly end their relationship of landlord and tenant while appearing before the Rent Registrar and then execute any other agreement; that since the facts referred by the courts below in their decisions are based on the documents annexed by the petitioner along with his application seeking leave to contest, his assertion that the courts below have referred to the documents which were not brought on record by recording evidence, is not worth consideration; that the petitioner was arrayed as party in the suit for possession through partition merely due to the reason that respondents Nos.3 and 4 apprehended payment of rent by the petitioner to the other legal heirs to their exclusion; that even in the said suit respondents Nos.3 and 4 prayed for issuance of a direction to the petitioner for payment of rent of his share; that mala fide on the part of the petitioner is evident from the fact that though he filed power of attorney in the suit filed by respondents Nos.3 and 4 two days after its institution but did not file written statement till the time he managed two forged agreement on the basis whereof he filed suit for specific performance; that when respondents Nos.3 and 4 filed suit for possession through partition, on 06.07.2018 the filing of suit for specific performance by the petitioner was just a counterblast; that since the respondents attached the judgment passed by this Court in R.F.A. No. 273/2007 with the Ejectment Petition the findings of learned Appellate Court cannot be considered against the record; that when the petitioner admitted in his application seeking leave to contest that he only paid rent upto the month of June, 2018, he fell within the category of defaulter; that the receipts referred in the decisions of the courts below were produced by the petitioner at the time of final arguments to show that the outstanding rent was paid but the deposit of defaulted amount in the month of January, 2019 could not be used to condone the lapse on the part of the petitioner towards payment of rent of each month within prescribed period; that since January, 2019 the petitioner has been paying monthly rent at the rate of Rs.5,00,000/- per month which fact negates his stance that he is possessing some portion of the rented premises as landlord and that since all the legal heirs of Mst. Naseem Akhtar were arrayed as party in the Ejectment Petition, the assertion of the petitioner that the same was only filed by respondents Nos.3 and 4 is against the record. Relies on Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45), Kabir Ahmad v. The Additional District Judge, Lahore and another (2018 CLC 161), JDW Sugar Mills Ltd. and others v. Province of Punjab and others (PLD 2017 Lahore 68), Messrs Shaikh Naveed Ikhlas and 2 others v. Shaikh Abdul Hafeez and 6 others (2017 CLC 1278), Abdul Ghafoor v. Additional District Judge and others (2015 CLC 229), Muhammad Asif v. Amina Bibi and others (2014 MLD 1084), Haji Muhammad Saeed v. Additional District Judge (2012 MLD 108) and Qamar-ud-Din v. Abdul Latif and others (PLJ 2009 Lahore 791).
4. While exercising their right of rebuttal, learned counsel for the petitioner contend that section 10 of the Act, 2009 is only applicable where tenancy between the parties is in writing; that the case-law, referred by learned counsel for the respondents is inapplicable for the reason that in all the referred cases the tenancy between the parties was admitted one whereas in the instant case the petitioner has denied his possession over the rented premises as tenant; that since the petitioner paid certain amount through cross-cheques, the assertion of the respondents that he paid lacs of rupees in cash to Mst. Naseem Akhtar is not worth reliance and that the store owned by the petitioner comprises of many contiguous buildings, thus, without determining due share of the parties, respondents Nos.3 and 4 could not claim anything from him.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition as well as the case-law, cited at the bar.
6. Firstly taking up the objection raised by the learned counsel for the petitioner that the documents which were not either before the learned Special Judge (Rent) or before the learned Appellate Court were discussed by the said fora, thus, their decisions fall within the category of laboured pronouncements, I am of the view that the assertion of the respondents that the documents referred by the courts below in favour of their decisions were either part of either the Ejectment Petition or the application seeking leave to contest, was not specifically repelled by the learned counsel for the petitioner, thus, the said objection is spurned accordingly.
"8. That the present petitioner approached the alleged landlords/ petitioners and other respondents with the help of his friends at U.S.A. England and Pakistan, with requested to execute registered sale deed and transfer the suit property in favour of the present petitioner in the light of agreements dated 12.10.2011 and 06.11.2014, but they refused to accept the same. It is pertinent to mention here that the present petitioner has been paying mesne profit/rent @ of Rs.5,00,000/- P.M. to their mother till May 2018 (for the month of June 2018), for the portion of the suit property which was not purchased by him. Later on the petitioners and the respondents Nos.2 to 6 demanded mesne profit/rent, without receipt, but the present petitioner refused to pay total amount to any one without the written permission of other co-sharer, therefore the alleged landlords/ petitioners became annoyed. The present petitioner filed a suit for specific performance and as a counterblast the alleged landlords / petitioners filed instant ejectment petition, which is liable to be dismissed in the light of the facts mentioned above."
"*****It is worth mentioning here at this juncture the question of title has no relevancy in the proceedings in rent case as the pivotal point needs determination would be the relationship of landlord and tenant which would be the only determining factor because a tenant has absolutely no legal right to raise any objection regarding the partition of property or the manner in which it was so made as it would have no substantial effect on the factum of his tenancy and his status would remain as tenant ."
12. There is no cavil with the proposition that if the petitioner succeeds in his suit seeking specific performance of agreements to sell he would be entitled to all ancillary benefits but the said fact cannot be used to interfere in the findings of the fora below.
14. Since the petitioner is running a departmental store in the rented premises with a view to enable him to arrange for alternate premises, he is granted four months' time from today to vacate the rented premises, subject to payment of rent for the said period, failing which law would take its own course.
SA/A-29/L Petition dismissed.

JOINT KHATA Case Laws

 (,مشترکہ کھاتہ)

co-sharer could not file a suit for declaration and possession against the other co-sharer but a suit for partition could only be filed.
> 2016 YLR 1300
••••••
JOINT KHATA
Suit for possess - co sharer can not file a suit for declaration & possession against other co sharer
> 2016 YLR 1300
> 2003 MLD 484
••••
JOINT KHATA
Co sharer would be considered to be in possession of each and every inch of un-partitioned land according to his share.
> 2016 SCMR 910
> 2007 SCMR 1884
> 2005 SCMR 1335
> 1998 SCMR 1589
> 1994 PLD SC 336
> 1992 SCMR 138
> 1989 SCMR 130
••••••
JOINT KHATA
(a) Specific Relief Act (I of 1877)--S.42---Suit for declaration---When share in the Khata has been transferred through mutation, then no question of transfer of specific property from joint Khata arises and if the purchasers are in possession of specific property, the remedy for the party lies anywhere else and a party cannot challenge the judgment and decree which has been passed in favour of that party.
> 2016 M L D 80
( Mst. BUSHRA BIBI CASE )
••••••••
(a) Co sharer Joint immovable property Co sharer's rights Extent of In case of joint immovable property, each co sharer deemed to be interested 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--sharer 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.
> 1989 S C M R 130
( ALI GOIIAR KHAN )
••••••
(b) Specific Relief Act (I of 1877)
5. 54 Perpetual injunction Construction on joint property without effecting partition Elect One co sharer being not entitled to change the nature of joint property in his possession, appellant as co sharer was found entitled to decree for perpetual injunction against respondent, till partition was effected in
> 1989 S C M R 130
•••••
(a) Co sharer
Joint possession Law of Limitation Application Question of a limitation does not arise in case of joint possession as co sharer.
> 2001 C L C 1431
> PLD 1994 SC 462
•••••
(d) Co-sharer-Sale by---Joint Khata---Agreement of sale not finding mention of delivery of possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee alleging his exclusive possession over such specific Khasra numbers under agreement---Validity---When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed---Every co-owner/co-sharer would be considered to be in 'possession of each inch of unpartitioned land according to his share.
> 2007 SCMR 1884
•••••
> 2006 YLR 856
Injunction against co-sharer cannot be issued because co-sharer had constructive possession in each inch in the property.
•••••
> 2006 YLR 828
Co-sharer who raises any construction on joint property without the consent of other co-sharer and without the permission of the court, is not entitled to any compensation and encroachment in value as such property is for common advantage of all the co-sharer
•••••
> 2006 MLD 435,
Interim injunction could not be issued in favour of one co-sharer against other co-sharer. All the construction made by one co-sharer would be at his own risk and cast in a suit for partition.
•••••
PLD 1998 SC 1509
In a joint khata, one co-sharer could not sale out trees standing there and further make a construction without due partition.
••••••
2006 MLD 442,
Co-sharer may protect his possession by way of injunction till regular partition.
••••••
2008 YLR 420,
Co-sharer in possession over joint property could not dispossessed accept through regular partition
••••••
2008 YLR 2454,
One co-sharer without consent of other co-sharer could not change nature of the suit property except through partition
••••••
> 2009 YLR 2454,
Every co-sharer had interest in each and every inch of joint property partitioned and could not be permitted to alter the character of property without consulting the other co-sharer
••••••
2010 C L C 285
ABDUL GHAFFAR-Versus-WAQAS HAFEEZ and others
(a) Civil Procedure Code (V of 1908)---O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.8---Suit for possession---Family partition---No nexus or connection with disputed land---Effect---Plaintiff filed suit for possession through partition along with an application for temporary injunction claiming therein that the plaintiff being co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary interest in every inch of the undivided Khata---Defendants contested suit on the ground that as a result of family partition the defendants were in possession of the disputed land out of total land in joint Khata for the last 25 years and that the plaintiff had no nexus or connection with the said partition---Trial Court dismissed application for restraining order against defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at preliminary stage---Right of the plaintiff in the disputed land and its extent had yet to be determined by recording of evidence---Defendants were in exclusive possession of the disputed property for the past 25 years on the basis of family partition---Prima facie case in favour of the plaintiff was not clearly made out---Defendants had invested huge sums of money in construction of CNG Station and installation of equipment and machinery thereon---Order restraining defendants from operating the CNG Station would cause inconvenience to them more compared to the plaintiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---Ingredient of irrepairable loss was missing in the suit---Plaintiff had failed to show any illegality or material irregularity committed by subordinate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.
Muhammad Muzaffar Khan y. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514 and AmanUllah v. HameedUllah and others 2006 YLR 856 ref.
(b) Civil Procedure Code (V of 1908)---O. XXXIX, Rr.1 & 2---Injunctive relief-Equitable and discretionary in nature---All three ingredients have to be present at the same time---In case any one of the ingredients is missing, the court cannot grant temporary injunction.
(c) Specific Relief Act (I of 1877)--S. 8-Suit for possession---Family partition---Co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor.
•••••••
> 2009 SCMR 688,
> 2002/2001 CLC 71,
Co-sharer was dispossessed. He may recover possession by filing suit U/S 9 of Specific Relief Act or suit for partition
•••••
> 2011 MLD 1570,
Co-sharer in joint khata could not make construction without regular partition
••••••
> 2011 MLD 1548,
> 2011 MLD 1548,
Joint family property was privately partitioned according to report of bailiff.
Constructions were made at roof level. Permission to complete further construction was granted. Further construction would be at own risk and cast.
•••••
> 2011 MLD 1518,
> PLD 2012 Islamabad 68,
> 2012 CLC 1618
Co-sharer to protect his possession may file suit for permanent injunction until regular partition is effected
•••••
> PLJ 2012 SC (AJK) 182
Co-sharer in one khasra no would be a co-sharer in all khasra no and khata
•••••
> 2013 CLC 174
The possession of one co-sharer would be considered a possession on behalf of all co-sharer
•••••
PLD 2013 Peshawar 38
One co-sharer on the basis of possession could not take plea of adverse possession against other co-sharer
•••••
> 2013 MLD 1557
One co-sharer who is out of possession would be considered in possession on the principle of constructive possession
•••••
> 2013 CLC 711,
>?2008 YLR 420,
> PLD 1956 Pesh 96,
> PLD 1968 Dhaka 259,
> 2001 CLC 1211,
Simple suit for possession against co-sharer without relief of partition is not maintainable
•••••
> 2014 MLD 1116
Limitation would not run against co-sharer who is not in possession to file suit for possession against other co-sharer who is in possession.
•••••
> PLD 2014 Lahore 417
Property from one co-sharer maybe acquired through sale or gift but the same would be subject to regular partition and the new holder of title on the basis of sale etc could not established his own right beyond the right of original owner.
•••••
> 2008 YLR 420
One co-sharer against another co-sharer to recover possession of the suit property according to his respective share cannot file suit for possession rather co-sharer would file suit for partition.
•••••
> 1998 S C M R 1589
ABDUR REHMAN and 7 others-versuS-Sayed SULTAN ALI SHAH and 5 others
(a) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer in possession of joint Khata---Entitlement to retain possession till partition---Plaintiff's suit for declaration with perpetual injunction was dismissed by Trial Court---First Appellate Court, however, decreed plaintiff's suit while High Court set aside decree and judgment of First Appellate Court and restored judgment and decree of Trial Court whereby suit had been dismissed---Validity---Leave to appeal was granted to consider that "QabzaHissadari" having been transferred to plaintiff. they were entitled to remain in possession of land as co-sharers till such time as partition of Shamilat would take place; whether entries in "WajibulArz" showed that plaintiffs, as co-sharers, were entitled to bring land in question, under cultivation; and that plaintiffs being in physical possession of more than their shares, such fact was irrelevant to their right to remain in possession till partition of suit land.
(b) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185---Plaintiff's possession in joint Khata over more area than their share in such Khata---Effect---First Appellate Court had rightly found that plaintiffs were entitled to keep whatever property they had reclaimed till partition of Shamilat land by metes and bounds would take place---High Court fell in error in modifying decree and judgment of First Appellate Court to the extent of plaintiffs' share in Shamilat land--¬Judgment and decree of High Court was set aside while that of First Appellate Court decreeing plaintiff's suit to the extent of their possession, was restored in circumstances.
•••••
NO STAY IN JOINT KHATA
> 2002 SCMR 1298
> 2004 MLD 1844
••••••JOINT KHATA 1
co-sharer could not file a suit for declaration and possession against the other co-sharer but a suit for partition could only be filed.
> 2016 YLR 1300
••••••
JOINT KHATA
Suit for possess - co sharer can not file a suit for declaration & possession against other co sharer
> 2016 YLR 1300
> 2003 MLD 484
••••
JOINT KHATA
Co sharer would be considered to be in possession of each and every inch of un-partitioned land according to his share.
> 2016 SCMR 910
> 2007 SCMR 1884
> 2005 SCMR 1335
> 1998 SCMR 1589
> 1994 PLD SC 336
> 1992 SCMR 138
> 1989 SCMR 130
••••••
JOINT KHATA
(a) Specific Relief Act (I of 1877)--S.42---Suit for declaration---When share in the Khata has been transferred through mutation, then no question of transfer of specific property from joint Khata arises and if the purchasers are in possession of specific property, the remedy for the party lies anywhere else and a party cannot challenge the judgment and decree which has been passed in favour of that party.
> 2016 M L D 80
( Mst. BUSHRA BIBI CASE )
••••••••
(a) Co sharer Joint immovable property Co sharer's rights Extent of In case of joint immovable property, each co sharer deemed to be interested 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--sharer 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.
> 1989 S C M R 130
( ALI GOIIAR KHAN )
••••••
(b) Specific Relief Act (I of 1877)
5. 54 Perpetual injunction Construction on joint property without effecting partition Elect One co sharer being not entitled to change the nature of joint property in his possession, appellant as co sharer was found entitled to decree for perpetual injunction against respondent, till partition was effected in
> 1989 S C M R 130
•••••
(a) Co sharer
Joint possession Law of Limitation Application Question of a limitation does not arise in case of joint possession as co sharer.
> 2001 C L C 1431
> PLD 1994 SC 462
•••••
(d) Co-sharer-Sale by---Joint Khata---Agreement of sale not finding mention of delivery of possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee alleging his exclusive possession over such specific Khasra numbers under agreement---Validity---When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed---Every co-owner/co-sharer would be considered to be in 'possession of each inch of unpartitioned land according to his share.
> 2007 SCMR 1884
•••••
> 2006 YLR 856
Injunction against co-sharer cannot be issued because co-sharer had constructive possession in each inch in the property.
•••••
> 2006 YLR 828
Co-sharer who raises any construction on joint property without the consent of other co-sharer and without the permission of the court, is not entitled to any compensation and encroachment in value as such property is for common advantage of all the co-sharer
•••••
> 2006 MLD 435,
Interim injunction could not be issued in favour of one co-sharer against other co-sharer. All the construction made by one co-sharer would be at his own risk and cast in a suit for partition.
•••••
PLD 1998 SC 1509
In a joint khata, one co-sharer could not sale out trees standing there and further make a construction without due partition.
••••••
2006 MLD 442,
Co-sharer may protect his possession by way of injunction till regular partition.
••••••
2008 YLR 420,
Co-sharer in possession over joint property could not dispossessed accept through regular partition
••••••
2008 YLR 2454,
One co-sharer without consent of other co-sharer could not change nature of the suit property except through partition
••••••
> 2009 YLR 2454,
Every co-sharer had interest in each and every inch of joint property partitioned and could not be permitted to alter the character of property without consulting the other co-sharer
••••••
2010 C L C 285
ABDUL GHAFFAR-Versus-WAQAS HAFEEZ and others
(a) Civil Procedure Code (V of 1908)---O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.8---Suit for possession---Family partition---No nexus or connection with disputed land---Effect---Plaintiff filed suit for possession through partition along with an application for temporary injunction claiming therein that the plaintiff being co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary interest in every inch of the undivided Khata---Defendants contested suit on the ground that as a result of family partition the defendants were in possession of the disputed land out of total land in joint Khata for the last 25 years and that the plaintiff had no nexus or connection with the said partition---Trial Court dismissed application for restraining order against defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at preliminary stage---Right of the plaintiff in the disputed land and its extent had yet to be determined by recording of evidence---Defendants were in exclusive possession of the disputed property for the past 25 years on the basis of family partition---Prima facie case in favour of the plaintiff was not clearly made out---Defendants had invested huge sums of money in construction of CNG Station and installation of equipment and machinery thereon---Order restraining defendants from operating the CNG Station would cause inconvenience to them more compared to the plaintiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---Ingredient of irrepairable loss was missing in the suit---Plaintiff had failed to show any illegality or material irregularity committed by subordinate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.
Muhammad Muzaffar Khan y. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514 and AmanUllah v. HameedUllah and others 2006 YLR 856 ref.
(b) Civil Procedure Code (V of 1908)---O. XXXIX, Rr.1 & 2---Injunctive relief-Equitable and discretionary in nature---All three ingredients have to be present at the same time---In case any one of the ingredients is missing, the court cannot grant temporary injunction.
(c) Specific Relief Act (I of 1877)--S. 8-Suit for possession---Family partition---Co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor.
•••••••
> 2009 SCMR 688,
> 2002/2001 CLC 71,
Co-sharer was dispossessed. He may recover possession by filing suit U/S 9 of Specific Relief Act or suit for partition
•••••
> 2011 MLD 1570,
Co-sharer in joint khata could not make construction without regular partition
••••••
> 2011 MLD 1548,
> 2011 MLD 1548,
Joint family property was privately partitioned according to report of bailiff.
Constructions were made at roof level. Permission to complete further construction was granted. Further construction would be at own risk and cast.
•••••
> 2011 MLD 1518,
> PLD 2012 Islamabad 68,
> 2012 CLC 1618
Co-sharer to protect his possession may file suit for permanent injunction until regular partition is effected
•••••
> PLJ 2012 SC (AJK) 182
Co-sharer in one khasra no would be a co-sharer in all khasra no and khata
•••••
> 2013 CLC 174
The possession of one co-sharer would be considered a possession on behalf of all co-sharer
•••••
PLD 2013 Peshawar 38
One co-sharer on the basis of possession could not take plea of adverse possession against other co-sharer
•••••
> 2013 MLD 1557
One co-sharer who is out of possession would be considered in possession on the principle of constructive possession
•••••
> 2013 CLC 711,
>?2008 YLR 420,
> PLD 1956 Pesh 96,
> PLD 1968 Dhaka 259,
> 2001 CLC 1211,
Simple suit for possession against co-sharer without relief of partition is not maintainable
•••••
> 2014 MLD 1116
Limitation would not run against co-sharer who is not in possession to file suit for possession against other co-sharer who is in possession.
•••••
> PLD 2014 Lahore 417
Property from one co-sharer maybe acquired through sale or gift but the same would be subject to regular partition and the new holder of title on the basis of sale etc could not established his own right beyond the right of original owner.
•••••
> 2008 YLR 420
One co-sharer against another co-sharer to recover possession of the suit property according to his respective share cannot file suit for possession rather co-sharer would file suit for partition.
•••••
> 1998 S C M R 1589
ABDUR REHMAN and 7 others-versuS-Sayed SULTAN ALI SHAH and 5 others
(a) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer in possession of joint Khata---Entitlement to retain possession till partition---Plaintiff's suit for declaration with perpetual injunction was dismissed by Trial Court---First Appellate Court, however, decreed plaintiff's suit while High Court set aside decree and judgment of First Appellate Court and restored judgment and decree of Trial Court whereby suit had been dismissed---Validity---Leave to appeal was granted to consider that "QabzaHissadari" having been transferred to plaintiff. they were entitled to remain in possession of land as co-sharers till such time as partition of Shamilat would take place; whether entries in "WajibulArz" showed that plaintiffs, as co-sharers, were entitled to bring land in question, under cultivation; and that plaintiffs being in physical possession of more than their shares, such fact was irrelevant to their right to remain in possession till partition of suit land.
(b) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185---Plaintiff's possession in joint Khata over more area than their share in such Khata---Effect---First Appellate Court had rightly found that plaintiffs were entitled to keep whatever property they had reclaimed till partition of Shamilat land by metes and bounds would take place---High Court fell in error in modifying decree and judgment of First Appellate Court to the extent of plaintiffs' share in Shamilat land--¬Judgment and decree of High Court was set aside while that of First Appellate Court decreeing plaintiff's suit to the extent of their possession, was restored in circumstances.
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NO STAY IN JOINT KHATA
> 2002 SCMR 1298
> 2004 MLD 1844
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