Muhammad Ishtiaq etc. vs Abdul Waheed

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.855/2024

Muhammad Ishtiaq etc. vs. Abdul Waheed

JUDGMENT

Date of Hearing: 24.09.2026 Petitioners by: Mr. Sarfraz Ahmed Qureshi, Advocate. Respondent by: Ms. Shahnaz Zafar, Advocate and Ms. Parnoon Zafar, Advocate.

Anwaar Hussain, J. This civil revision brings into focus the question whether a suit for permanent and mandatory injunction is maintainable by one co-sharer against another co-sharer in respect of joint, unpartitioned property and, if so, in what circumstances such injunctive relief may be granted.

2.Brief facts of the case are that the respondent filed a suit for permanent injunction against the petitioners with the averments that he is owner in possession of the property comprising Khasra No.212, Mauza Baiwal; that he is settled in the United Kingdom for earning his livelihood; and that, taking advantage of his absence, the petitioners attempted to create a passage which did not exist. The suit was contested by the petitioners, maintaining that they have been co- sharers in the suit khata in general and Khasra No.212 in particular since 1995, and that the suit was instituted merely to harass them. Interim relief was granted by the Trial Court, which was allegedly violated by the petitioners, whereupon the respondent also filed a contempt petition. After framing of issues and recording of evidence, the suit was decreed, whereas the contempt petition was dismissed through judgment dated 25.06.2024. The petitioners preferred an appeal assailing the findings recorded in the suit, whereas the respondent preferred an appeal against the findings of even date rendered in the contempt proceedings. Through the impugned

consolidated judgment dated 28.11.2024, both appeals were dismissed. Hence, this civil revision. The respondent has not challenged the findings recorded in the contempt proceedings any further.

3.Learned counsel for the petitioners submits that, admittedly, the petitioners are co-sharers and, therefore, a suit for mandatory and permanent injunction against them in respect of an unpartitioned joint holding was not maintainable. Reliance is placed upon case reported as Mst. Resham Bibi and others v. Lal Din and others (1999

SCMR 2325).

4.Conversely, learned counsel for the respondent support the impugned judgments. They place reliance upon decision of this Court in case of Fazal Karim and 2 others v. Mehboob Khan (deceased) through his Legal Heirs (2024 CLC 699) to contend that there is no absolute bar against grant of injunction inter se co-sharers. It is further maintained that petitioner No.1, while acting as special attorney of the respondent, in an earlier litigation initiated by one Zafar Mehmood and others against the respondent and others including petitioner No.1, had himself denied existence of the passage now claimed by the petitioners and is, therefore, precluded from taking a contrary position.

5.Arguments heard. Record perused.

6.The legal relationship between co-sharers provides the starting point. Until partition by metes and bounds, every co-sharer has an interest in every inch of the joint holding and no co-sharer can, merely by identifying a particular portion in his possession, convert such possession into an exclusive proprietary title against the others. At the same time, joint ownership does not confer a licence upon one co-sharer to alter the nature of the common property to prejudice the corresponding rights of the others. Thus, while a claim to exclusive entitlement ordinarily points towards partition, a threatened

alteration of the joint property may, in an appropriate case, be restrained by an injunction.

7.The case law relied upon by the parties are to be understood in this context. Prior to the decision in case of Mst. Rashem Bibi, the Supreme Court of Pakistan in case reported as Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130), held that where a co-sharer sought to change the nature of joint property by raising construction before partition, suit for mandatory and permanent injunction is maintainable. In case of Mst. Resham Bibi supra, the remedies available inter se co-sharers were considered in the context of partition and recovery of possession, while in case reported as Fazal and others v. Ghulam Muhammad and others (2003 SCMR 999), the Supreme Court reiterated that a co-sharer intending to raise construction upon joint property should first seek partition rather than unilaterally alter its character. These authorities are complementary rather than conflicting: injunction cannot be used to acquire exclusivity, which joint title does not confer, but it may be invoked to prevent a co-sharer from prejudicially altering the joint property.

8.Case of Fazal Karim supra, relied upon by learned counsel for the respondent, proceeds on the same distinction. After considering the aforesaid precedents, this Court recognized the maintainability of suit for permanent injunction relief where a co-sharer threatens to change the nature of the joint property or prejudice the rights of another therein and held as under:

“14. 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”.

There is no disagreement with that proposition. Its application, however, depends upon proof of the threatened act attracting such protection. The availability of a remedy in law cannot substitute for proof of the facts necessary for its grant.

9.In the present case, admittedly, the respondent owns 08 kanal and 11 marla and had sold 01 kanal therefrom to the petitioner side. The petitioners are, therefore, admittedly co-sharers in the same khata, which also comprises of disputed Khasra No.212 and are not strangers or trespassers setting up a hostile title. The respondent could nevertheless seek injunctive relief if he established that the petitioners were attempting to create a new passage in a manner prejudicially altering the joint property. The decisive question, therefore, is whether that allegation was proved.

10.Both the Courts below answered the question principally by relying upon earlier litigation instituted by one Zafar Mehmood and others against petitioner No.1 and the respondent, wherein petitioner No.1 had acted as special attorney of the respondent and stated to have denied existence of the passage. The prayer in the said suit instituted by Zafar Mehmood etc., was specific performance of an agreement, with the respondent, in relation to some passage in the joint Khata. The difficulty is that before such a statement of petitioner No.1 in suit instituted by Zafar Mehmood etc., could be used against the petitioners, it had to be established that it concerned the very passage now in dispute between the parties. A contradiction cannot exist in abstraction; its evidentiary value depends upon identity of the fact concerning which the inconsistent positions are alleged to have been taken.

11.Admittedly, the record of the earlier suit, instituted by Zafar Mehmood etc., against the respondent and petitioner No.1, was brought on record through the statement of counsel of the respondent and was never confronted to the petitioners, hence, has no evidentiary value in the light of law laid down in case reported as Muhammad Aslam v. Muhammad Ismail (deceased) through L.Rs. (2024 YLR 1199). More importantly, neither of the Courts below compared the pleadings or site plan of the earlier proceedings with those of the present suit from which this petition has emanated, or otherwise established that the passage referred to therein was the same passage now in controversy. In the absence of this foundational nexus, the earlier position could not furnish a lawful basis for decreeing the present suit. Therefore, case of Fazal Kareem supra is of no help to the respondent on account of distinguishable facts.

12.There is no cavil that the concurrent findings ordinarily command due deference in revisional jurisdiction and are not open to interference merely because another view of the evidence is possible. But concurrence of findings does not insulate a decision resting upon material whose foundational relevance has not been established or based upon an erroneous application of law or appreciation of facts. Here, the Courts below attached determinative significance to earlier proceedings without first establishing that they concerned the same passage and, on that basis, granted injunctive relief in favour of one co-sharer against another. The error, therefore, travels beyond mere appreciation of evidence and warrants correction in revisional jurisdiction.

13.In view of the above analysis, the legal question framed hereinabove is answered in the terms that a suit for permanent injunction by one co-sharer against another is not barred in absolute terms and may lie where the act complained of threatens to alter the nature of the joint property or otherwise prejudices a legally protectable right therein. The plaintiff must, however, prove the

factual basis attracting such protection. In the present case, that foundational question has not been determined on a legally sustainable evidentiary basis as examined hereinabove. The concurrent findings cannot, therefore, be sustained.

14.However, at the same time, the aforesaid deficiencies do not justify dismissal of the suit, as that would amount to finally determining against the respondent a factual controversy, which has not been adjudicated upon a complete and legally admissible evidentiary foundation. The appropriate course is to remit the matter for fresh determination after affording the parties due opportunity to bring the relevant material concerning the earlier proceedings and the identity of the disputed passage on record, in accordance with law, including such revenue record as may have a bearing thereon. The evidentiary worth and effect of such material shall be determined by the Trial Court, in accordance with law.

15.In view of the above discussion, the impugned judgments and decrees are set aside. The matter is remanded to the Trial Court for decision afresh, in accordance with law. It is clarified that nothing contained herein shall be construed as an opinion on the existence, identity or character of the disputed passage or otherwise affect the merits of the respective claims of the parties.

16.This petition is allowed in above terms.

(ANWAAR HUSSAIN)

Judge Approved for reporting.

Judge

Announced in open court and dictated on the same day, however finalised on 28.09.2026

Akram