Case Law and Judgment (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

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.

کھاتہ شریک کی جائیداد پر اگر قبضہ ہو جائے تو وہ استقرار حق کا دعوی نہیں کرسکتا بلکہ صرف تقسیم کا دعوی کر سکتا ہے

“A purchaser of a share out of a joint property having become a coowner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition.”

Mst. Sanobar Sultan and others Vs Obaidullah Khan and others (PLD 2009 S.C.71) 

2016 YLR 1300

 Form 

No.HCJD/C-121

 ORDER SHEET IN THE LAHORE HIGH COURT, RAWALPINDI BENCH JUDICIAL 

DEPARTMENT . C.R.No.917-D-2012 Mst. 

Roshan Ara Begum etc Vs. Mohammad Banaras etc

Judgment 

Mr. Haroon Arshad Janjua, Advocate for petitioners. Resume of facts, forming background of instant petition is that the petitioners/plaintiffs filed a suit for declaration alongwith possession contending that petitioners’ predecessor in interest namely Ashraf Ali Khan, was owner of land measuring 13-Kanals and 16-Marlas, bearing khasra No.6872/3616. One shop which was constructed by Ashraf Ali Khan from his own resources was rented out to respondent No.1. On 26.07.2001, a sale deed with respect to the disputed shop was secretly executed between respondent No.1 & respondent No.2/paternal aunt against the terms of tenancy agreement and the respondent No.1 started claiming ownership of the disputed shop illegally and unlawfully. On the other hand, respondent No.1 controverted the contents of the plaint by filing written statement. Learned trial court dismissed the suit vide judgment and decree dated 25.10.2010. Petitioners filed appeal against the said judgment and decree which was also dismissed, vide judgment and decree dated 21.11.2011, hence, this revision petition. 

2. Learned counsel for the petitioners submits that both the learned courts below have committed misreading and nonreading of material evidence with respect to the ownership of shop and existence of relationship of tenant and landlord between petitioners and respondent No.1. Both the learned courts below ignored the crucial facts and fell in error while deciding the matter, therefore, the impugned judgments and decrees are not sustainable in the eye of law, hence, the same are liable to be set aside.

3. Arguments heard. Record perused.

4. To prove their case before the learned trial court, only petitioner No.8 appeared as PW-1 but during crossexamination he tried to improve the case of petitioners by stating that his grandfather namely Yousaf Ali Khan was the owner of land measuring 13-Kanals and 16-Marlas, bearing khasra No.6872/3616. His grandfather gifted property measuring 04- Kanals and 09-Marlas to his father/ Ashraf Ali Khan and shops were constructed on the gifted land. Although he denied that each of his paternal aunt was given one shop but admitted the sale of four shops each by his four paternal aunts alongwith vacant land. He also admitted that no suit was filed against other paternal aunts. The petitioners claimed that they were/are owners of disputed property gifted to their father but failed to prove the gift and their exclusive ownership before the learned courts below through documentary as well as oral evidence.  

5. On the other hand, only respondent No.1 appeared as DW-1 and proved his ownership as well as his possession by producing the registered sale deed properly executed between him and respondent No.2. Petitioners filed an ejectment petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance against the respondent No.1, which was dismissed on 30.09.2003 and appeal filed there against also met the same fate. 

6. Learned lower appellate court has rightly held that respondent No.1 purchased the disputed shop from a cosharer / paternal aunt. Hence, he also became a co-sharer in the joint property. Furthermore, it is established law that a cosharer cannot file a suit for declaration and possession against the other co-sharer but a suit for partition can only be filed. The Hon’ble Supreme Court of Pakistan in a case reported as Mst. Sanobar Sultan and others Vs Obaidullah Khan and others (PLD 2009 S.C.71) has held as under: “A purchaser of a share out of a joint property having become a coowner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition 

7. Learned counsel for the petitioners has failed to point out any misreading or non-reading of material evidence warranting interference by this Court in the concurrent findings given by both the learned courts below. The Hon’ble Apex Court in a case reported as Abdul Qadoos through L.Rs Vs Habibur Rehman and others (2010 SCMR 52) has held that: “In a case of concurrent findings by courts below this Court normally does not interfere unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physical impossible. Misreading and non-reading of evidence is established.”

8. In the present case, no such defects have been pointed out by the learned counsel for petitioners in order to seek interference by this Court. Learned courts below have meticulously examined the entire evidence of the parties and thereafter reached at the conclusion regarding the controversy. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgments passed by the learned courts below. Therefore, this petition is dismissed in limine.