Case Study on Injunction Against Co-Sharer

Prepared and Presented By;

Syed Furqan Mashwani,

Judicial Magistrate, V, Mansehra

&
Mrs. Sidra Aslam,

Civil Judge, I, Mansehra

Dated: 14/07/2022
DEFINITION:

INJUNCTION:

An injunction is a judicial process whereby a party is ordered to be refrained from doing or is

directed to do a particular act or thing.

CO- SHARER

The word “co-sharer” means a person who retains any fraction of share in property to have or

possess or retain share of title or has right to share. [1990 CLC 164].

it signifies persons owing a share or shares in whole of the property or properties of which other

sharers are subject to sale. Whatever the interest of co-sharer in the joint property may be, is a co-

owner in every inch of that property to the extent of his share until partition takes place which he

can claim as a matter of right. [2001 MLD 597].

TYPES OF INJUNCTION:

I. Temporary injunction,

II. Permanent injunction and

III. Mandatory injunction.

RELEVANT LAW:

 Order 39 Rule 1 CPC

 Section 52 to 57 of the Specific Relief Act, 1877

AGREED UPON RULE :

“Every co-sharer is entitled to each and every inch of the un-partitioned

immoveable property and is deemed to be interested in every inch of subject
matter irrespective of quantity of his interest. The only way out for
determination of specific shares of a co-sharer is formal partition”.
QUESTION?

Whether An Injunctive Relief Can Be Granted

Against A Co-sharer?
TWO SCHOOLS OF THOUGHT:
 FIRST SCHOOL

Suit for permanent Injunction against a co-sharer is not

maintainable, except, by brining a suit for partition. If a co-

sharer feels himself aggrieved by the action of another co-

sharer, his remedy is to go for partition and get his shares

separated. Year wise case law favoring this school of

thought is listed below:

Case Law: First School

 PLD 1973 SC 214; [Suit for permanent injunction against other co-sharers

is not maintainable except by bringing a suit for partition of joint property].

 1979 CLC 230 Lahore;

 1991 MLD 106 Lahore;

 1999 SCMR 2325; [Suit for permanent injunction against the other co-

sharers is not maintainable except by bringing a suit for partition of joint

property].

 2001 MLD 597;

Case Law: First School.

 2003 MLD 742 Lahore; [Every co-sharer in possession of joint property to the extent

of his share in entire joint property has a right to make use of it in a manner he likes

without hindrance by other co-sharers. If co-sharers feel aggrieved by conversion of

land by other co-sharer, their remedy is to go for partition and get their share separated.]

 2003 MLD 484 Lahore; [Trial court could not pass a decree for specific Khasra number

from joint khata, unless joint khata has been partitioned].

 2004 MLD 1844 Lahore;

 2004 CLC 995 Lahore;

 2006 SCR 17;

 Case Law: First School

 2006 YLR 856; [Injunction against co-sharer cannot be issued because co-

sharer has constructed possession in each inch in the property].

 2007 YLR 1723 Peshawar;

 2012 YLR 809 High Court AJ&K;

 2014 MLD 1844;

 2016 YLR 1300 Lahore; [Co-sharer could not file a suit declaration and

possession against other co-sharer but a suit for partition could only be filed].
 Case Law: First School

 2016 CLC 176 Peshawar by Justice Yahya Afridi; [Each co-owner in an undivided

property was presumed to be the owner in possession of each inch of the property. Co-owner

of an undivided property seeking injunctive relief, could only seek the same with the formal

partition of undivided property. Co-owner seeking partition of the joint property would be

able to obtain the determination of the respective share of each co-owner. Granting

injunctive relief to one co-owner would amount to authorizing him to legally take possession

of a valuable portion of the joint property which would frustrate the partition of joint

property].

 2019 SCMR 84; [Latest view of the Supreme Court wherein the view taken in 2016 CLC

176 Peshawar was upheld].

 SECOND SCHOOL

Every co-sharer has interest in each and every inch of joint

property, however no joint owner could change its character

without first having joint property partitioned and could not be

permitted to alter the character of property without consulting

the other co-sharers. Injunction granted.

Year wise case law in favor of the second school of thought

is listed below:
 Case Law: Second School

 PLD 1959 SC (Pak.) 9; [If strong co-sharer after taking possession of more
valuable part of joint property either alienates same or changes its character,
then it cannot be said that weak/poor co-sharer may file suit for partition
and till its decision, strong co-sharer may alienate same or change its
character and throw his adversary into ditches or barren land by taking
commercially valuable land on road side or more fertile land-- Such course
cannot be allowed under principles of equity and justice].
 PLD 1988 SC 1509;
Case Law: Second School

 1989 SCMR 130; [Every co-owner in the joint property is interested in

each and every inch of the joint ownership and no co-owner can take
possession of any specific portion or change its character unless the
property is partitioned by metes and bounds].
 1992 SCMR 138;
 1995 SCMR 514; [Every co-owner in the joint property is interested in
each and every inch of the joint ownership and no co-owner can take
possession of any specific portion or change its character unless the
property is partitioned by metes and bounds].
Case Law: Second School.

 1996 CLC 275;

 PLD 1998 SC 1509;
 1999 CLC 598 SC AJ&K;
 1999 CLC 2406;
 1999 CLC 964;
 2000 CLC 1138 Peshawar; [Co‑sharer who is in exclusive possession of
a specific portion of a Joint property cannot alienate, transfer or change
the same unless a regular partition takes place between the co sharers].
Case Law: Second School

 2000 SCMR 780;

 2002 CLC 739;
 2002 MLD 676;
 2003 CLC 1695;

 2003 SCMR 999; [Defendants instead of raising construction on the property which was

admittedly co-owned by the plaintiffs, should have first of all got the same partitioned and then

might have constructed the portion of land falling in their share] 2003 CLC 1695 Lahore;

 2004 SCMR 1581; [Co-sharer in joint property can neither make any change in the

property without the consent of other co-sharers nor can deal with the joint property in a

manner prejudicial the interest of other co-sharer without his permission].

Case Law: Second School

 2004 YLR 1136 Lahore; [Each co- sharer was owner in every part of the joint holdings to the
extent of his entitlement. No co-sharer could be permitted to change the character of the land
the exclusion of other co-sharers, without resorting to some lawful partition proceedings].

 2006 MLD 442;

 2008 YLR 2454;

 2008 CLC 934;

 2009 YLR 2454 High Court AJ&K.; [Every co-sharer had interest in each and every inch of
joint property, however no joint owner could change its character without first having joint
property partitioned and could not be permitted to alter the character of property without
consulting the other co-sharers.]
Case Law: Second School

 2011 MLD 1570

 2011 MLD 1518;

 PLD 2012 Islamabad 68;

 2012 CLC 1618

 2012 CLR 89; [Each co-sharer is owner in each and every inch of the joint Khata, therefore,

one co-sharer cannot be allowed to usurp the rights of others in any manner. A permanent

injunction can be granted by the court when there is an apprehension of change in the nature

of property.]
Case Law: Second School

 2016 MLD 1735 Peshawar;

 2009 CLC 92 Peshawar; [A co-sharer cannot be allowed to alter the nature of
joint land unless it is partitioned].
 2016 YLR 2195 Peshawar; [Proper course for a joint owner is to approach the
revenue hierarchy for partition of a particular share. Civil court had ample power
to redress the grievances of the owner in possession of the property seeking relief
to restrain the other owner of his dispossession from the joint property till the legal
partition. Courts below are bound to consider the case of the plaintiff with regard
to claim of dispossession from the property.]
PRACTICAL COMPLICATION WITH THE FIRST SCHOOL
OF THOUGHT:

Actual dispute is between two co-sharers and the one aggrieved

approaches the Court. The court knocks him out on the point that both of

you are co-owners wherein a suit for injunction is not maintainable except

by bringing a suit for partition.

Now the party aggrieved has to go for partition with all co-sharers who are

not at issue with parties to the suit, thus, resulting into a protracted and

expensive litigation.
 PRACTICAL COMPLICATION WITH THE SECOND
SCHOOL OF THOUGHT:

If the court restricts one co-owner from construction/interference in the joint property and passes an

injunction/decree. The injunctive order will be followed by an application for appointment of bailiff

and enforcement of court order.

How is the bailiff going to implement Court’s order on the spot where property is joint consisting of

hundreds of co-sharers and measuring hundreds of kanals?

In case of decree, it is going to followed by an execution petition where the DH will ask the court for

implementation of decree which in itself is not executable for the aforementioned reason. If the court

moves on to implement its decree, it will ultimately encroach upon the jurisdiction of a Revenue Court

in cases of agricultural property. So, why to pass an order which is not executable?
Solution/Our Opinion:

SOLUTION NO.1:

Do not entertain the suit at all. Directions to approach Revenue Forum.

Once revenue forum is approached for partition, then a civil court can
grant injunction against a co-sharer for smooth running of partition
proceedings. Even if the civil court is not approached for stay or
constructions were raised before/during filing of suit, the constructions
made will be on the risk and cost of the party doing it and will be subject
to final partition of suit property where the party will not be entitled for
compensation if found in excess of their shares. In this respect we have
sought guidance from [2011 MLD 1548, 2006 MLD 435].
 SOLUTION NO.2:

Straightaway pass permanent injunction but specify a time frame with

directions to plaintiff to go for partition. If partition proceedings aren’t

initiated in the specific time frame given by the court, then the decree shall

lose its legal ground.

In this scenario, a civil court can avoid appointment of bailiff and execution

petition and will also not be forced to appoint commissions for determination

of interference
 Thankyou!
Now the House is open for valuable input of
the fellow colleagues and guidance of the
learned Seniors.