Sunday 6 May 2012

Co-sharers in Shamlat Deh Land cannot be dispossed unless partition suit


PLJ 2012 SC (AJ&K) 21
[Appellate Jurisdiction]
Present: Muhammad Azam Khan, CJ and Ch. Muhammad Ibrahim Zia, J.
MUHAMMAD MAROOF & 6 others--Appellants
versus
MUHAMMAD ZAREEF KHAN & another--Respondents
C.A. No. 79 of 2009, decided on 1.12.2011.
(On appeal from the judgment of the High Court, dated 4.4.2009
in Civil Revision No. 12 of 2008)
Co-sharers--
----Co-sharers in shamilat-deh land cannot be dispossessed from land without partition--Illegal possession of land which was in ownership of plaintiff--Validity--A decree was to be passed against defendants but after obtaining gift deed they had become co-sharers in shamilat deh land of village and any co-sharer of shamilat deh land cannot be dispossessed from land without due process of law through regular partition--After obtaining gift-deed when appellants had become co-sharers no decree of possession was any suit can be passed against shamilat deh land under their possession.      [P. 24] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Status quo order--Co-sharers in shamilat deh land could not be dispossessed without partition--Plaintiffs had failed to make out a good prima facie case--Co-sharers had a right to remain in possession of land--Essential ingredients--A good prima facie arguable case was made out of party succeeded in establishing a good prima facie case then other two ingredients, irreparable loss and balance of convenience, have to be looked into--Question of balance of convenience is to be weighed keeping in view circumstances that if ultimately suit filed by plaintiff was decreed, which party would suffer more inconvenience of interim relief was not granted--If stay order remained intact, appellants will suffer an irreparable loss--Balance of convenience appeared in favor when appellants had filed an undertaking in trial Court that if ultimately decree was passed against them, they would demolish the house at their own costs without claiming any compensation--Appeal was accepted.            [Pp. 24 & 26] B & C
PLJ 1998 SC (AJ&K) 218 ref.
Mr. Abdul Majeed Mallick, Advocate for Appellants.
Sh. Masood Iqbal, Advocate for Respondents.
Date of hearing: 30.11.2011.
Judgment
Muhammed Azam Khan, CJ.--The captioned appeal with leave of the Court arises out of a judgment of the High Court dated 4.4.2009, whereby Civil Revision Petition No. 12/08 filed by the respondents, herein, has been accepted.
2.  Necessary facts for disposal of the appeal are that Respondents No. 1 and 2 filed a suit for declaration and possession in respect of land measuring 10 kanal 7 marla, bearing Survey Nos. 644 and 645, situate in village Nara-Kot, Tehsil Charhoi, District Kotli, in the Court of Civil Judge, Court No. 3, Kotli, claiming therein that the appellants, herein, are in possession of the land in the village. The land is shamilat deh. The plaintiffs are owners of the land. The defendants have no right to remain in possession as they are not owners of the land. They are illegal occupants. Along with the plaint an application for maintaining status quo was also moved. The trial Court initially issued stay order but recalled the same on 07.07.2007 on the ground that defendants are co-sharers in the land. The plaintiffs filed an appeal before the District Judge Kotli which was dismissed on 30.5.2008. Feeling aggrieved by the said order a revision petition was filed in the High Court of Azad Jammu & Kashmir. A learned single Judge in the High Court accepted the revision petition vide impugned judgment dated 4.4.2009 and ordered that the status quo of the land shall be maintained till final decision of the original suit.
3.  Mr. Abdul Majeed Mallick, the learned counsel for the appellants, argued that the judgment of the High Court is not maintainable. After obtaining the gift-deed in respect of shamlat deh land from Mst. Farjan Begum and Ruqiyya Begum the appellants have become co-sharers and have a right to remain in possession of the land. The learned Judge in the High Court failed to consider this important legal point involved in the case. The High Court misconstrued and misinterpreted the documentary evidence and averments made in the pleadings of the parties. The plaintiffs-respondents failed to make out a prima facie arguable case for issuance of interim injunction. He argued that the plaintiffs in their plaint categorically stated that the defendants-appellants, herein, are in possession of the land and they have constructed houses. The appellants have demolished old houses and they are raising new construction at the same place, have raised walls and the lintel of the house was to be laid when the stay order was issued by the Court. He contended that the possession of the land is proved from para 6 and 7 of the plaint. The appellants are co-sharers in shamilat-deh land and cannot be dispossessed from the land without the partition of the same. He argued that the plaintiffs-respondents failed to make out a good prima facie arguable case. The appellants have raised walls of the house with huge expenditures and if the house remains incomplete, they will suffer an irreparable loss. Balance of convenience also is in their favour. Lastly he argued that if ultimately a decree is passed against them, they will demolish the house at their own costs. The learned counsel referred to and relied upon the case reported as Kh. Abdus Subhan vs. Khurshid & 11 others [1999 SCR 514].
4.  While controverting the arguments, Sh. Masood Iqbal, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The plaintiffs-respondents are owners in the village and due to being member of a proprietary body they are sharers in every inch of shamilat-deh land. If the appellants raise construction on land, the plaintiffs will suffer irreparable loss. Balance of convenience is also in their favour.
5.  We have heard the learned counsel for the parties and perused the record. The case of the plaintiffs in the trial Court is that the plaintiffs and proforma defendants are owners of land bearing Khewat No. 32/32, situate in village Nara-Kot Tehsil Charhoi, as such they are sharers in the shamilat deh land of the village. In Para 5 and 6 of the plaint it is alleged by them that defendants-appellants, herein, have constructed a house consisting of six rooms in Survey No. 644. The plaintiffs asked them to demolish the house and remove the debris but they refused. This leaves no doubt that the defendants-appellants are in possession of the land. Although it was claimed by the plaintiffs that the defendants-appellants, herein, are in illegal possession but subsequently they obtained a gift-deed in the shamilat deh land from Farjan Begum and Ruqiyya Begum during pendency of the suit, on 20.7.2007 and 8.8.2007. The plaintiffs themselves admitted in the High Court that the defendants-appellants, herein, have obtained the gift-deed in respect of shamilat deh land and as such they have become co-sharers in the land. The learned single Judge of the High Court while delivering the judgment also admitted the fact that defendants-appellants, herein, are co-sharers in the land but he has issued the status quo order on the ground that every member of the proprietary body is sharer in every inch of the shamilat deh land.
6.  It may be stated here that the defendants were in illegal possession of the land, which was in the ownership of plaintiffs and other members of the proprietary body. A decree was to be passed against the defendants but after obtaining the gift-deed they have become co-sharers in the shamilat deh land of the village and any co-sharer of the shamilat deh land cannot be dispossessed from the land without due process of law through regular partition. After obtaining the gift-deed when defendants-appellants, herein, have become co-sharers, no decree of possession in any suit can be passed against them and they cannot be dispossessed from shamilat deh land under their possession. It is worth mentioning here that any member, who is co-sharer in the shamilat deh land, can retain possession of the same even if it is in excess of his share, till the regular partition of the land is made.
7.  For issuance or refusal of interim injunction what the Court has to see is that a good prima facie arguable case is made out in favour of the plaintiff and if the party succeeds in establishing a good prima facie arguable case, then other two ingredients, irreparable loss and balance of convenience, have to be looked into. The question of balance of convenience is to be weighed keeping in view the circumstances that if ultimately the suit filed by the plaintiff is decreed, which party will suffer more inconvenience, if the interim relief is not granted. This Court in the case titled Muhammad Rasab & another vs. Muhammad Siddique Chaudhary and reported as PLJ 1998 SC (AJ&K) 218, observed that for issuance of stay order it is not necessary that a party shall establish that in all the circumstances it will succeed in the case. All that the Court has to look is that the party establishes a prima facie case and if prima facie case is established, then the other two ingredients i.e. irreparable loss and balance of convenience have to be looked into. The relevant observation in Para 7 and 8 of the judgment is as under:
".......Therefore in our view at the stage of grant of interim relief the plaintiff need not establish his title to the suit property as it is not necessary for the plaintiff to show that he must succeed in this suit. The plaintiff is only to show that he has a good arguable case. In other words it would be sufficient for the plaintiff to show that he has a fair question to raise as to existence of his right and that till the question is ripe for trial, a case is made out or preservation of property in status quo. The Court is not expected to examine the merits of the case closely. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising the jurisdiction the Court doesn't profess to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and needs the aid of the Court for the protection of the legal right until the legal right is finally ascertained. Thus, the Court has only to look on the nature and difficulty of points which may arise in the case and not on the merits of the case. It is not necessary that the Court should find a case which entitles the plaintiff to succeed at all events.
7.  The meaning of balance of convenience in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that inconvenience to be caused to them would be greater than that which may be caused to the defendant........"
8.  The argument that every member of the proprietary body is sharer in every inch of the shamilat deh land, therefore, the person who is in possession cannot be allowed to raise construction, is misconceived. An  important  condition laid down in the Land Record Manual is that at the time of partition, possession of a person be protected. It is the case of the plaintiffs themselves that defendants-appellants, herein, are in possession of land bearing Survey No. 644 and they have constructed a house consisting of 6 rooms in the said survey number. When the possession is admitted and defendants-appellants, herein, are co-sharer in the land, the plaintiffs have got no good prima facie arguable case in their favour. The defendants have alleged that they are raising construction at the same place where they have previously constructed house after demolishing the old one and have raised walls up to the roof level. If the house remains incomplete, in that case they will suffer an irreparable loss. This Court in the case reported as Kh. Abdus Subhan vs. Khurshid & 11 others [1999 SCR 514] has held that all that the Court has to see is whether the plaintiff has an arguable case and balance of convenience and irreparable loss is in his favour or not. The plaintiffs-respondents have got no good prima facie arguable case. If the stay order remains intact, the defendants-appellants will suffer an irreparable loss. Balance of convenience also appears in their favour particularly in the circumstances when the appellants have filed an undertaking in the trial Court that if ultimately the decree is passed against them, they will demolish the house at their own costs without claiming any compensation.
In view of the above discussion, this appeal is accepted with no order as to the costs. The stay order to the extent of construction of house at the place of old house is vacated.
(R.A.)  Appeal accepted

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