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   Citation Name  : 2010  CLC  285     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : ABDUL GHAFFAR

  Side Opponent : WAQAS HAFEEZ

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---Plain tiff filed suit for possession through partition along with an application for temporary in junction claimin g therein that the plain tiff bein g co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary in terest in every in ch 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 join t Khata for the last 25 years and that the plain tiff had no nexus or connection with the said partition ---Trial Court dismissed application for restrain in g order again st defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at prelimin ary stage---Right of the plain tiff in the disputed land and its extent had yet to be determin ed by recordin g 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 plain tiff was not clearly made out---Defendants had in vested huge sums of money in construction of CNG Station and in stallation of equipment and machin ery thereon---Order restrain in g defendants from operatin g the CNG Station would cause in convenience to them more compared to the plain tiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---in gredient of irrepairable loss was missin g in the suit---Plain tiff had failed to show any illegality or material

irregularity committed by subordin ate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.

   

  Citation Name  : 2009  CLC  1136     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : ABDULLAH

  Side Opponent : Mst. SAIDAN BIBI

S. 144---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for restitution---Scope---Petitioners, in the present case, had in itiated litigation as plain tiffs claimin g a decree for declaration and permanent in junction---Provision of S.144, C.P.C. is based on fundamental prin ciples of law that an act of court should not in jure any person---Restitution is ordered again st the holder of the decree who, in execution thereof, has deprived the opposite party of some benefits and upon variance or reversal of decree the court calls upon him to restitute the said benefits---in the present case, matter related to the correction of share in join t holdin g of the parties and under the law if a co-sharer is dispossessed by another co-sharer then only remedy is either to file suit under S.9, Specific Relief Act, 1877 or to file a suit for partition ---Possession of property in question was not taken by the party in disobedience of any in juctive order in force---Provisions relatin g to execution of in juction decree were also not attracted---Constitutional petition was allowed---Impugned orders bein g without lawful authority and void were declared as such and were set aside---Warrant had been issued and report had been received---If the possession of the petitioners had been disturbed or changed on the basis of declaratory decree, Trial Court/Executin g Court shall take steps to restitute the same in favour of the petitioners in accordance with law.

   

  Citation Name  : 2006  MLD  435     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : MUHAMMAD BASHIR

  Side Opponent : MUHAMMAD NAZIR

---S.2---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for partition of join t Khasra---in terim in junction---Plain tiff had claimed that he was co-owner of property in dispute and that without partition , its nature could not be changed so as to prejudice his rights---Defendants had contended that they had disputed the title of plain tiff and they bein g absolute owners were entitled to raise constructions over the portion of their choice of the property in dispute---Jamabandi for relevant year, prima facie had in dicated that plain tiff was co-sharer in disputed Khasra numbers---Any change brought in the property in dispute, in circumstances, could cause damage to rights of plain tiff with respect to its partition ---If defendants would feel necessity of raisin g any construction over property in dispute in their possessions, they could do so at their own risk and cost---Any construction raised by defendants after in stitution of suit, would not prejudice rights of plain tiff in any manner at the time of fin al partition .

   

  Citation Name  : 2005  YLR  3015     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : ABDUL RAZAQ

  Side Opponent : Mst. AZMAT BIBI

--Ss. 42 & 54---Suit for declaration and in junction---Plain tiff bein g daughter of deceased owner of suit property filed suit. .for declaration and in junction claimin g ownership of suit property ---Origin al owner of suit property transferred same by way of gift durin g his life time through mutation to the extent of 1/4th share in favour of his wife, while ¾ share was transferred in equal shares to plain tiff who was his daughter and to his other daughter---No evidence of partition of suit property was available---Exclusive decree for possession, as consequential relief, in circumstances, could not have been passed in favour of plain tiff as she was co-sharer to the extent of 318th share in the suit property ---Decree for exclusive possession could not be granted to plain tiff, but she would be deemed to be in join t possession of property in dispute---Plain tiff bein g in peaceful possession of property , could main tain her possession over property in dispute till it was partition ed by metes and bounds---Revision was disposed of by affirmin g judgments and decrees passed by Courts below with modification that plain tiff would be deemed to be in join t possession of property to the extent of 318th share---Judgments and decrees passed to the extent of exclusive possession of plain tiff, were set aside.

   

  Citation Name  : 2004  MLD  1844     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : ASHIQ HUSSAIN

  Side Opponent : Prof. MUHAMMAD ASLAM

---S. 54---Join t property ---Suit for permanent in junction again st the other co-sharer s was not main tain able except by brin gin g a suit for partition of join t property .

   

  Citation Name  : 2002  MLD  1419     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : MUHAMMAD SALEEM

  Side Opponent : Mst. RASOOL FATIMA

Specific Relief Act 1877 ----Ss.12, 21 (c) & 54---Suit for possession through specific performance of agreement and permanent in junction---Arrangements arrived at between members of family---Private partition of property ---After demise of origin al owner of suit property , property had been devolved

upon his legal heirs in cludin g plain tiffs and defendants-- property was divided amongst join t owners through a private partition through an agreement--Accordin g to terms of agreement if any party wanted to sell his share in property , he would offer- it for sale to other co-sharer and on his refusal owner would be at liberty to sell the same to anyone---When defendants/co-sharer s planned to sell their shares in property to other person, plain tiff filed suit for permanent in junction again st defendants restrain in g them from sellin g property to person other than plain tiff--Suit was resisted by defendants contendin g that agreement arrived at between the parties was not enforceable under S.21(2) of Specific Relief Act, 1877---Validity---Contention was repelled because no ambiguity or uncertain ty existed in agreement and also its terms which were very clear and were enforceable at law---When an arrangement had been arrived at between members of family that was designed to provide peace and goodwill among its members, which by itself was a good consideration to support transaction---Court would not scan too closely the quantum of consideration for the agreement in cases of family arrangement--Agreement by one of the parties to a partition to take a smaller share could be sustain ed when that was done for preservation of family property or honour.

   

  Citation Name  : 2000  CLC  1138     PESHAWAR-HIGH-COURT-NWFP

  Side Appellant : NOOR REHMAN

  Side Opponent : MUHAMMAD YOUSUF

Code of Civil Procedure 1908 S. 115 & O. XXXIX, Rr. 1, 2---partition of join t property ---Dispute between co-sharer s---Defendants were in possession of some portion of undivided property and in tended to construct on the same---Plain tiff preferred suit again st such act of defendants---Trial Court refused to grant in terim in junction, but the same was granted by Lower Appellate Court-- Validity---Defendants failed to show that order of the Lower Appellate Court was either without jurisdiction or was sufferin g from material irregularity or illegality---Effect---Where none of the in gredients contain ed in S.115, C.P.C. were brought on record, revision petition was dismissed in . limin e.

   

  Citation Name  : 1999  CLC  598     SUPREME-COURT-AZAD-KASHMIR

  Side Appellant : MAQSOOD BEGUM

  Side Opponent : MUKHTAR ALI

Civil Procedure Code --Order XXXIX of C.P.C. Temporary in junctions and in terlocutory Orders ----O. XXXIX, Rr.l & 2---in terim in junction, grant of---Respondent who was one of co-sharer s of join tly owned property , demolished said property and started fresh construction without consent of other co-sharer s---in case of join t immovable property , every co-sharer would be deemed to have ownership right in every part of property and one co-sharer could not change nature of property ---Trial Court on application of one of the cp-sharers granted in terim in junction observin g that prima facie, property bein g join tly owned by parties, all co-owners possessed property and that one co-sharer could not use

it in such a way as to alter its join t character or was in consistent with right of other cosharers or was likely to cause such loss to them as could not be made good at time of partition of property between co-sharer s---Trial Court havin g rightly issued stay order, High Court was not justified to vacate same.

   

  Citation Name  : 1998  CLC  857     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : MURID AHMED

  Side Opponent : SAHAB BIBI

Specific Relief Act 1877 S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1, 2 & S. 115--co-sharer ---Temporary in junction, grant of---Prin ciples---Suit by widow for join t possession of suit land and declaration of her right to in herit same---Trial Court granted in terim in junction in favour of plain tiff directin g defendants (vendees) not to cut trees and change character of suit land ---property in question, bein g join t property , was sold by other co-sharer s in cludin g share of widow (plain tiff) without her consent---in terim in junction was main tain ed by Appellate Court ---Validity---property in question was admittedly in join t Khata which was still not partition ed---Plain tiff's plea that defendants be restrain ed from cuttin g trees and changin g character of property until its partition , was accepted by Trial Court and said order was affirmed by Appellate Court---Courts below had rightly granted in terim in junction keepin g in view three essential in gredients required for grant of temporary in junction---Trial Court was, however, directed to conclude the case within period of one year---Order of in terim in junction was main tain ed in circumstances.

   

  Citation Name  : 1995  PLD  462     SUPREME-COURT

  Side Appellant : HAJI SHAHJAHAN KHAN

  Side Opponent : AURANGZEB KHAN

Civil Procedure Code --Order XXXIX of C.P.C. Temporary in junctions and in terlocutory Orders 0. XXXIX, Rr.l & 2---Constitution of Pakistan (1973), Art.185(3)--Temporary in junction---Grant of---Join tly owned land---One of the co-sharer s wanted to construct a house on a portion of such land---Other co-sharer s objected to such construction and filed suit for in junction on the ground that the property was join tly owned by the parties, therefore, the co-sharer be restrain ed from raisin g any construction till such time that regular partition of the land took place---Numerous mutations of sale had been sanctioned of small pieces of land, out of the suit Khasra number for construction purposes and after carvin g out Tatimmas houses had been constructed on such land--Even portion of the land in possession of tie co-sharer (who wanted to construct the house) was earlier sold by one of the co-sharer s who later sold it to him (the co-sharer )---Land in question, thus, had its own identity from rest of the land in suit---High Court, therefore, was justified to set aside that order of in junction in favour of co-sharer s who objected the construction of house by the other co-sharer with direction to the co-sharer who wanted to construct the house to furnish security to the effect that he would remove the construction in case of success of the

other co-sharer s regardin g the suit land---Order of High Court bein g in conformity with the law, givin g sufficient safeguard to the in terest of both the parties, Supreme Court declin ed in terference and dismissed the petition for leave to appeal.

   

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 Citation Name  : 1995  PLD  462     SUPREME-COURT

  Side Appellant : HAJI SHAHJAHAN KHAN

  Side Opponent : AURANGZEB KHAN

Constitution of Pakistan 1973 0. XXXIX, Rr.l & 2---Constitution of Pakistan (1973), Art.185(3)--Temporary in junction---Grant of---Join tly owned land---One of the co-sharer s wanted to construct a house on a portion of such land---Other co-sharer s objected to such construction and filed suit for in junction on the ground that the property was join tly owned by the parties, therefore, the co-sharer be restrain ed from raisin g any construction till such time that regular partition of the land took place---Numerous mutations of sale had been sanctioned of small pieces of land, out of the suit Khasra number for construction purposes and after carvin g out Tatimmas houses had been constructed on such land--Even portion of the land in possession of tie co-sharer (who wanted to construct the house) was earlier sold by one of the co-sharer s who later sold it to him (the co-sharer )---Land in question, thus, had its own identity from rest of the land in suit---High Court, therefore, was justified to set aside that order of in junction in favour of co-sharer s who objected the construction of house by the other co-sharer with direction to the co-sharer who wanted to construct the house to furnish security to the effect that he would remove the construction in case of success of the other co-sharer s regardin g the suit land---Order of High Court bein g in conformity with the law, givin g sufficient safeguard to the in terest of both the parties, Supreme Court declin ed in terference and dismissed the petition for leave to appeal.

   

  Citation Name  : 1994  CLC  2409     PESHAWAR-HIGH-COURT-NWFP

  Side Appellant : MUHAMMAD ASHIQ

  Side Opponent : ABDUL JALIL USMAN

co-sharer ----Entitlement of co-sharer to construct on join t property ---Suit for in junction restrain in g defendant from raisin g constructions on the join tly owned land decreed ---Legality---co-sharer could not, ordin arily be permitted to alter the nature of join t property , and to put it to different use from the one for which it was in tended---Neither defendant nor his vendor had been able to establish exclusive possession over the land in question, defendant therefore, could not use it to lay foundation thereon---Even if defendant/co-sharer had been in possession of land in question, still he could not raise construction thereon, without consultin g other co-sharer or partition of land

   

  Citation Name  : 1994  MLD  550     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : FAZAL DIN

  Side Opponent : UMAR BIBI

Civil Procedure Code --Order XXXIX of C.P.C. Temporary in junctions and in terlocutory Orders ----OXXXIX, Rr.1 & 2 & S.115---Specific Relief Act (I of 1877), S.54--Temporary in junction---Grant of ---Revisional jurisdiction, exercise of---Suit land which was Ghair Mumkin , was a join t holdin g of petitioner and. respondent and respondent sold her share to another person---Apprehendin g possession and construction on land by vendee respondent, petitioner had brought suit for permanent in junction alongwith petition for temporary in junction for restrain in g vendee-respondent from possession of land in excess of his share and from proposed construction thereon, without first gettin g join t holdin g partition ed---Petitioner, bein g co-sharer of join t holdin g, should have claimed partition of join t property , but he did not ask for partition even after sale of half share by vendor co-sharer to vendee ---Petitioner, could not raise any objection to use of property by vendee respondent to the extent fallin g to the share of vendor respondent in view of fact that a co-sharer in possession of a join t property was entitled to retain possession until and unless partition of join t holdin g took place---Court below, in circumstances had rightly refused grant of temporary in junction to petitioner---Order of Court below could not be in terfered with in revisional jurisdiction of High Court as exercise of jurisdiction and discretion in withholdin g relief to petitioner, was not fanciful and arbitrary.

   

  Citation Name  : 1994  MLD  550     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : FAZAL DIN

  Side Opponent : UMAR BIBI

Code of Civil Procedure 1908 ----OXXXIX, Rr.1 & 2 & S.115---Specific Relief Act (I of 1877), S.54--Temporary in junction---Grant of ---Revisional jurisdiction, exercise of---Suit land which was Ghair Mumkin , was a join t holdin g of petitioner and. respondent and respondent sold her share to another person---Apprehendin g possession and construction on land by vendee respondent, petitioner had brought suit for permanent in junction alongwith petition for temporary in junction for restrain in g vendee-respondent from possession of land in excess of his share and from proposed construction thereon, without first gettin g join t holdin g partition ed---Petitioner, bein g co-sharer of join t holdin g, should have claimed partition of join t property , but he did not ask for partition even after sale of half share by vendor co-sharer to vendee ---Petitioner, could not raise any objection to use of property by vendee respondent to the extent fallin g to the share of vendor respondent in view of fact that a co-sharer in possession of a join t property was entitled to retain possession until and unless partition of join t holdin g took place---Court below, in circumstances had rightly refused grant of temporary in junction to petitioner---Order of Court below could not be in terfered with in revisional jurisdiction of High Court as

exercise of jurisdiction and discretion in withholdin g relief to petitioner, was not fanciful and arbitrary.

   

  Citation Name  : 1991  CLC  708     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : GHULAM NABI

  Side Opponent : ALLAH DITTA

Specific Relief Act 1877 S.42 --- Suit for declaration and permanent in junction --- Consequential relief, whether can be granted in dependent of declaratory decree---When there was no declaratory decree then question of flowin g consequences therefrom, would not arise --- Consequential relief could not be granted after dismissin g main relief of declaration --- Defendants bein g co-owners in land in question, were presumed to be owner in possession of each in ch of land, so it would not be proper to restrain them from enterin g in to it or in terferin g with physical possession of another co-owner --- Relief of permanent in junction if granted to one co-sharer , would tantamount to allowin g/authorisin g one of co-sharer s to take forcible possession of any valuable portion of join t property /land and then rile suit for permanent in junction restrain in g other co-sharer s from in terferin g with his possession--Grant of in junction to a co-sharer /owner would also frustrate partition of join t property .

   

  Citation Name  : 1991  MLD  732     LAHORE-HIGH-COURT-LAHORE

  Side Appellant : MUHAMMAD HUSSAIN

  Side Opponent : ASGHAR ALI

Transfer of property Act 1882 ----S.54---Specific Relief Act (I of 1877), S.42---Suit for declaration and permanent in junction again st sale-deed effected in favour of vendee defendants--Suit dismissed by both Courts below---Plain tiff at revisional stage did not press for declaration sought for in suit but in sisted upon grant of permanent in junction restrain in g defendants from in terferin g in plain tiff's possession of land in question---Plain tiff's entitlement as a co-owner to grant of permanent in junction---Prayer for permanent in junction bein g a consequential relief, a declaratory decree was a condition precedent because unless declaration was granted, question of grant of consequential relief would not arise---Plain tiffs prayer for permanent in junction, if allowed, would amount to layin g a dangerous precedent authorisin g one of co-sharer s to take forcible possession of any valuable portion of join t property and then file suit for permanent in junction restrain in g other co-owner from in terferin g with his possession thus, frustratin g the law relatin g to partition of join t property .

   

  Citation Name  : 1990  SCMR  1628     SUPREME-COURT

  Side Appellant : MEHBOOB AHMAD SHAH

  Side Opponent : ADDITIONAL DISTRICT JUDGE, MANSEHRA

Code of Civil Procedure 1908 ----S. 12(2)---Constitution of Pakistan (1973), Art.185---Plain tiff filed suit claimin g therein that land in question bein g join t property and there havin g been no partition defendant had no right to raise construction over any part of land--Suit was decreed on the statement of Patwari that defendant was not co-sharer in property ---Defendant's application under S.12(2), Civil Procedure Code allegin g fraud and misrepresentation in obtain in g decree was dismissed by Trial Court but accepted by Appellate Court---Appellate Court's judgment and decree dismissin g Trial Court's decision was main tain ed by High Court in Constitutional petition--- Leave to appeal-- -Plain tiffs pica was that he had not obtain ed decree on account of misrepresentation or fraud ---Patwari had given a statement in Court it, a preemption suit between plain tiff and defendant that plain tiff had already got a decree again st defendant as a result of which plain tiffs suit for pre-emption had been dismissed---Defendant's plea that Patwari in another suit had stated that defendant was co-sharer thus could not be established on record---Defendant havin g not challenged plain tiffs allegation plain tiff could not be deemed to be in strumental in obtain in g decree again st defendant--Plain tiffs plain case was that an in junction be issued again st defendant, therefore, proper course for Appellate Court was to remit the case to Trial Court for adjudication on merits---Supreme Court settin g aside High Court's decree modified order of Appellate Court to the extent that case after cancellation of decree would be remanded to Civil Court for decision on merits after framin g issues on pleadin gs of parties.

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