تہ شریک کیخلاف دعوی حکم امتناعی دوامی کس صورت حال میں دائر کیا جا سکتاہے

 2024 CLC 699

The moot point involved in this case is as to whether a co-sharer/co-owner 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). In the wake of survey of law on the subject, I find that in the case of FAZAL and others v. GHULAM MUHAMMAD and others (2003 SCMR 999), Bench comprising of three Hon'ble Judges of Supreme Court of Pakistan held that suit for permanent injunction is maintainable on behalf of co-sharer/co-owner. 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. The matter, however, would become different in a case when a co-sharer intends to change the nature of the joint holding or threatens the other co-sharers to divest from their right in the joint property as co-owner. In such a case, such co-owner can institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same. In the said eventuality, it is for the former to first of all get the joint land partitioned. In the present case, the principles laid down in FAZAL and others v. GHULAM MUHAMMAD and others supra are clearly attracted and as such the trial Court as well as the appellate Court have erred in law while dismissing the suit being not maintainable and barred by law. Civil Revision-212-18

FAZAL KARIM ETC VS MEHBOOB KHAN