Co Sharer

                Co Sharer 

         PLJ 2010 AJ&K 112

Present: Rafiullah Sultani, J.

MUHAMMAD ZAREEF KHAN and another--Petitioners

versus

MUHAMMAD MAROOF and 6 others--Respondents

C.R. No. 12 of 2008, decided on 4.4.2009.

Co-sharer--

----Every co-sharer has interested in each and every inch of joint property and one co-sharer could not be permitted to alter the character of property without consulting the other co-sharer.        [P. 117] A

                                                                                 1994 CLC 2409, 2000 CLC 1138, ref.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115, O.XXXIX, R. 2(3)--Specific Relief Act, 1877, Ss. 42 & 54--Cancellation of interim injunction--Undertaking though affidavit to remove superstructure if decree is passed in favour of petitioner--Held: Not a valid & legal ground for cancellation--One of the conditions to be considered for the issuance of injunction is to avoid multiplicity of the suit.        [P. 117] B & C

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 places by metes and bounds."

It was held in case titled Sardara & 04 others Vrs. Muhammad Khan, reported in PLD 1998 SC of Pak. 1509, cap. (b) , which reads as under:--

"(b) Co-owner----

----Constitution of Pakistan (1973), Art. 185--Cutting and selling trees growing on joint land by one co-owner to the exclusion of other co-owners--Entitlement challenged--Trial Court had dismissed plaintiff's suit on the ground that he was no longer co-owner of property in question wherein trees had grown and were being cut and sold--Appellate Court, however, set aside judgment and decree of trial Court and decreed plaintiff's suit--Judgment and decree of Appellate Court which was affirmed in revision by High Court was based on correct appreciation of documentary evidence adduced by plaintiff--Appellate Court and High Court had rightly maintained that land in question, being joint and having not been partitioned between parties, defendant could not unilaterally cut and sell trees growing there, or raise any construction thereon-Judgment and decree of High Court did not call for interference by Supreme Court which were maintained in circumstances."

"(c) Specific Relief Act----

Stay against Co Sharer

----Ss. 42 & 54--CPC, O. XXXIX, Rr. 1 & 2--Suit for declaration and permanent injunction--Prayer for temporary injunction to restrain defendant (co-sharer) from alienating joint property--Trial Court refused to grant such temporary relief, but Appellate Court granted the same--Validity--All ingredients for grant of temporary injunction coexisted in favour of plaintiff--Non-passing of order to restrain defendant from alienating joint property would have resulted in multiplicity of proceedings-Appellate Court had not committed any irregularity or illegality in setting aside order of Trial Court--High Court dismissed, revision petition."

This view also gets support from case laws; 1994 CLC 2409 and 2000 CLC 1138.