Zamarud Khan Vs Ghulam Rabbani

t1

PESHAWAR HIGH COTJRT, ABBOTTABAD BENCH.

FORTVI OF ORDER SHEET

Oate of Order of Order or other Proceedings with Signature of Judge (s) Proceed ings

15 11 2022 C.R.No. 69-A/2021.

Present IVr lVluhammad Arif Khan Jadoon. Advocate for the petitioners

KAMRAN HAYAT MIANKHEL J.- This revision petition is directed against the iudgment and decree dated 10 122020, passed by the learned Additional District Judge-Vll, Abbottabad, whereby the petitioners' appea filed against the judgment and decree dated 18 03 2019 of the learned Civil Judge-lX Abbottabad, was dismtssed

2.Brief facts of the case are that petitioners/plaintiffs filed a suit for permanent injunction and possession against the respondents fully detailed in the head note of the plaint. lt was contention of the petitioners that they and respondent No 1 are loint owners in the suit property and are in possession of their respeclive shares as a result of private partition. The respondent No l idefendant No 1 appeared before the learned trial court and contested the suit by filing his written statement, who had also filed an application un<jer Order Vll Rule 1'1 CPC for rejection of plainl The learned trial court after hearing the learned counsel for parties vide ludgment/order and

l

decree dated 18 03 2019 rejected the plaint under Order Vll r"ule 11 CPC. Being aggrieved of the same. the prese n t petitioners went in appeal before the learned Additional District Judqe-Vll. Abbottabad, which was <lismissed vide judgment and decree dated 10 122020, hence, this petition

3 Arguments of learned counsel for petitioner heard and record perused

4 Perusal of the record reflects that the present petitioners instituted a civil suit for permanent rnlunction and possession in respect of the property in question fully deta ed in the head note of the plaint The respondent denied the allegation of petitioners in his written statement and averred in the same that the disputed property rs loint property and they are also co-sharer in the same lt is clear from the available record that the parties are co- sharer in the disputed property alongwith other co-sharer.

hence. they could not seek permanent inlunction and possesston against the other co-sharer. rather they should have filed a suit for partition of the suit property before proper forum

5.lt is by now settled law that no suit for declaration.

pernranent injunction and possession could be filed oy a co snarer against other co sharer and only remedy is for him to ask for partition of the suit ln this regard reliance is

placed on case reported as Mst. Resham Bibi and others Vs Lal Din and others (1999 SCMR 2325), wherein it was held that

"We are, therefore, of the opinion that after their dispossession, which according to them was forcible, the appellants had two remedies for seeking redress, namely, a suit under section 9 of the Specific Relief Act and the proceedings for partrtion of the joint property To hold that besides the said two remedies they could have recourse to a third remedy, that is an ordinary suit for restoration of exclusive possession would amount to placing one set of co-sharers in a much more advantageous position as compared to the other for which there is no warrant in law or equity."

Further reliance is placed on cases reported as Muhammad Riaz and another Vs Mumtaz Ali thorugh Legal Heirs and others (2006 YLR 1071 Lahore), and Zulliqar and others Vs Noor Muhammad and othe rS (2002 CLC 71't Lahore). Learned counsel for the petitioners has failed to point out any illegality or irregularity committed by the learned lower courts while passing the impugned judgments and decrees warranting interference by this court in its revisional jurisdiction 6 For what has been discussed above, this petition being bereft of any merit, is hereby dismissed in limine

JU

Aftab PS