16/09/2024
(,مشترکہ کھاتہ)
JOINT KHATA
co-sharer could not file a suit for declaration and possession against the other co-sharer but a suit for partition could only be filed.
> 2016 YLR 1300
••••••
JOINT KHATA
Suit for possess - co sharer can not file a suit for declaration & possession against other co sharer
> 2016 YLR 1300
> 2003 MLD 484
••••
JOINT KHATA
Co sharer would be considered to be in possession of each and every inch of un-partitioned land according to his share.
> 2016 SCMR 910
> 2007 SCMR 1884
> 2005 SCMR 1335
> 1998 SCMR 1589
> 1994 PLD SC 336
> 1992 SCMR 138
> 1989 SCMR 130
••••••
JOINT KHATA
(a) Specific Relief Act (I of 1877)--S.42---Suit for declaration---When share in the Khata has been transferred through mutation, then no question of transfer of specific property from joint Khata arises and if the purchasers are in possession of specific property, the remedy for the party lies anywhere else and a party cannot challenge the judgment and decree which has been passed in favour of that party.
> 2016 M L D 80
( Mst. BUSHRA BIBI CASE )
••••••••
(a) Co sharer 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 place by metes and bounds.
> 1989 S C M R 130
( ALI GOIIAR KHAN )
••••••
(b) Specific Relief Act (I of 1877)
5. 54 Perpetual injunction Construction on joint property without effecting partition Elect One co sharer being not entitled to change the nature of joint property in his possession, appellant as co sharer was found entitled to decree for perpetual injunction against respondent, till partition was effected in
> 1989 S C M R 130
•••••
(a) Co sharer
Joint possession Law of Limitation Application Question of a limitation does not arise in case of joint possession as co sharer.
> 2001 C L C 1431
> PLD 1994 SC 462
•••••
(d) Co-sharer-Sale by---Joint Khata---Agreement of sale not finding mention of delivery of possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee alleging his exclusive possession over such specific Khasra numbers under agreement---Validity---When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed---Every co-owner/co-sharer would be considered to be in 'possession of each inch of unpartitioned land according to his share.
> 2007 SCMR 1884
•••••
> 2006 YLR 856
Injunction against co-sharer cannot be issued because co-sharer had constructive possession in each inch in the property.
•••••
> 2006 YLR 828
Co-sharer who raises any construction on joint property without the consent of other co-sharer and without the permission of the court, is not entitled to any compensation and encroachment in value as such property is for common advantage of all the co-sharer
•••••
> 2006 MLD 435,
Interim injunction could not be issued in favour of one co-sharer against other co-sharer. All the construction made by one co-sharer would be at his own risk and cast in a suit for partition.
•••••
PLD 1998 SC 1509
In a joint khata, one co-sharer could not sale out trees standing there and further make a construction without due partition.
••••••
2006 MLD 442,
Co-sharer may protect his possession by way of injunction till regular partition.
••••••
2008 YLR 420,
Co-sharer in possession over joint property could not dispossessed accept through regular partition
••••••
2008 YLR 2454,
One co-sharer without consent of other co-sharer could not change nature of the suit property except through partition
••••••
> 2009 YLR 2454,
Every co-sharer had interest in each and every inch of joint property partitioned and could not be permitted to alter the character of property without consulting the other co-sharer
••••••
2010 C L C 285
ABDUL GHAFFAR-Versus-WAQAS HAFEEZ and others
(a) Civil Procedure Code (V of 1908)---O. ###IX, Rr.1 & 2---Specific Relief Act (I of 1877), S.8---Suit for possession---Family partition---No nexus or connection with disputed land---Effect---Plaintiff filed suit for possession through partition along with an application for temporary injunction claiming therein that the plaintiff being co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary interest in every inch of the undivided Khata---Defendants contested suit on the ground that as a result of family partition the defendants were in possession of the disputed land out of total land in joint Khata for the last 25 years and that the plaintiff had no nexus or connection with the said partition---Trial Court dismissed application for restraining order against defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at preliminary stage---Right of the plaintiff in the disputed land and its extent had yet to be determined by recording of evidence---Defendants were in exclusive possession of the disputed property for the past 25 years on the basis of family partition---Prima facie case in favour of the plaintiff was not clearly made out---Defendants had invested huge sums of money in construction of CNG Station and installation of equipment and machinery thereon---Order restraining defendants from operating the CNG Station would cause inconvenience to them more compared to the plaintiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---Ingredient of irrepairable loss was missing in the suit---Plaintiff had failed to show any illegality or material irregularity committed by subordinate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.
Muhammad Muzaffar Khan y. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514 and AmanUllah v. HameedUllah and others 2006 YLR 856 ref.
(b) Civil Procedure Code (V of 1908)---O. ###IX, Rr.1 & 2---Injunctive relief-Equitable and discretionary in nature---All three ingredients have to be present at the same time---In case any one of the ingredients is missing, the court cannot grant temporary injunction.
(c) Specific Relief Act (I of 1877)--S. 8-Suit for possession---Family partition---Co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor.
•••••••
> 2009 SCMR 688,
> 2002/2001 CLC 71,
Co-sharer was dispossessed. He may recover possession by filing suit U/S 9 of Specific Relief Act or suit for partition
•••••
> 2011 MLD 1570,
Co-sharer in joint khata could not make construction without regular partition
••••••
> 2011 MLD 1548,
> 2011 MLD 1548,
Joint family property was privately partitioned according to report of bailiff.
Constructions were made at roof level. Permission to complete further construction was granted. Further construction would be at own risk and cast.
•••••
> 2011 MLD 1518,
> PLD 2012 Islamabad 68,
> 2012 CLC 1618
Co-sharer to protect his possession may file suit for permanent injunction until regular partition is effected
•••••
> PLJ 2012 SC (AJK) 182
Co-sharer in one khasra no would be a co-sharer in all khasra no and khata
•••••
> 2013 CLC 174
The possession of one co-sharer would be considered a possession on behalf of all co-sharer
•••••
PLD 2013 Peshawar 38
One co-sharer on the basis of possession could not take plea of adverse possession against other co-sharer
•••••
> 2013 MLD 1557
One co-sharer who is out of possession would be considered in possession on the principle of constructive possession
•••••
> 2013 CLC 711,
>?2008 YLR 420,
> PLD 1956 Pesh 96,
> PLD 1968 Dhaka 259,
> 2001 CLC 1211,
Simple suit for possession against co-sharer without relief of partition is not maintainable
•••••
> 2014 MLD 1116
Limitation would not run against co-sharer who is not in possession to file suit for possession against other co-sharer who is in possession.
•••••
> PLD 2014 Lahore 417
Property from one co-sharer maybe acquired through sale or gift but the same would be subject to regular partition and the new holder of title on the basis of sale etc could not established his own right beyond the right of original owner.
•••••
> 2008 YLR 420
One co-sharer against another co-sharer to recover possession of the suit property according to his respective share cannot file suit for possession rather co-sharer would file suit for partition.
•••••
> 1998 S C M R 1589
ABDUR REHMAN and 7 others-versuS-Sayed SULTAN ALI SHAH and 5 others
(a) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer in possession of joint Khata---Entitlement to retain possession till partition---Plaintiff's suit for declaration with perpetual injunction was dismissed by Trial Court---First Appellate Court, however, decreed plaintiff's suit while High Court set aside decree and judgment of First Appellate Court and restored judgment and decree of Trial Court whereby suit had been dismissed---Validity---Leave to appeal was granted to consider that "QabzaHissadari" having been transferred to plaintiff. they were entitled to remain in possession of land as co-sharers till such time as partition of Shamilat would take place; whether entries in "WajibulArz" showed that plaintiffs, as co-sharers, were entitled to bring land in question, under cultivation; and that plaintiffs being in physical possession of more than their shares, such fact was irrelevant to their right to remain in possession till partition of suit land.
(b) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185---Plaintiff's possession in joint Khata over more area than their share in such Khata---Effect---First Appellate Court had rightly found that plaintiffs were entitled to keep whatever property they had reclaimed till partition of Shamilat land by metes and bounds would take place---High Court fell in error in modifying decree and judgment of First Appellate Court to the extent of plaintiffs' share in Shamilat land--¬Judgment and decree of High Court was set aside while that of First Appellate Court decreeing plaintiff's suit to the extent of their possession, was restored in circumstances.
•••••
NO STAY IN JOINT KHATA
> 2002 SCMR 1298
> 2004 MLD 1844
••••••JOINT KHATA 1
co-sharer could not file a suit for declaration and possession against the other co-sharer but a suit for partition could only be filed.
> 2016 YLR 1300
••••••
JOINT KHATA
Suit for possess - co sharer can not file a suit for declaration & possession against other co sharer
> 2016 YLR 1300
> 2003 MLD 484
••••
JOINT KHATA
Co sharer would be considered to be in possession of each and every inch of un-partitioned land according to his share.
> 2016 SCMR 910
> 2007 SCMR 1884
> 2005 SCMR 1335
> 1998 SCMR 1589
> 1994 PLD SC 336
> 1992 SCMR 138
> 1989 SCMR 130
••••••
JOINT KHATA
(a) Specific Relief Act (I of 1877)--S.42---Suit for declaration---When share in the Khata has been transferred through mutation, then no question of transfer of specific property from joint Khata arises and if the purchasers are in possession of specific property, the remedy for the party lies anywhere else and a party cannot challenge the judgment and decree which has been passed in favour of that party.
> 2016 M L D 80
( Mst. BUSHRA BIBI CASE )
••••••••
(a) Co sharer 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 place by metes and bounds.
> 1989 S C M R 130
( ALI GOIIAR KHAN )
••••••
(b) Specific Relief Act (I of 1877)
5. 54 Perpetual injunction Construction on joint property without effecting partition Elect One co sharer being not entitled to change the nature of joint property in his possession, appellant as co sharer was found entitled to decree for perpetual injunction against respondent, till partition was effected in
> 1989 S C M R 130
•••••
(a) Co sharer
Joint possession Law of Limitation Application Question of a limitation does not arise in case of joint possession as co sharer.
> 2001 C L C 1431
> PLD 1994 SC 462
•••••
(d) Co-sharer-Sale by---Joint Khata---Agreement of sale not finding mention of delivery of possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee alleging his exclusive possession over such specific Khasra numbers under agreement---Validity---When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed---Every co-owner/co-sharer would be considered to be in 'possession of each inch of unpartitioned land according to his share.
> 2007 SCMR 1884
•••••
> 2006 YLR 856
Injunction against co-sharer cannot be issued because co-sharer had constructive possession in each inch in the property.
•••••
> 2006 YLR 828
Co-sharer who raises any construction on joint property without the consent of other co-sharer and without the permission of the court, is not entitled to any compensation and encroachment in value as such property is for common advantage of all the co-sharer
•••••
> 2006 MLD 435,
Interim injunction could not be issued in favour of one co-sharer against other co-sharer. All the construction made by one co-sharer would be at his own risk and cast in a suit for partition.
•••••
PLD 1998 SC 1509
In a joint khata, one co-sharer could not sale out trees standing there and further make a construction without due partition.
••••••
2006 MLD 442,
Co-sharer may protect his possession by way of injunction till regular partition.
••••••
2008 YLR 420,
Co-sharer in possession over joint property could not dispossessed accept through regular partition
••••••
2008 YLR 2454,
One co-sharer without consent of other co-sharer could not change nature of the suit property except through partition
••••••
> 2009 YLR 2454,
Every co-sharer had interest in each and every inch of joint property partitioned and could not be permitted to alter the character of property without consulting the other co-sharer
••••••
2010 C L C 285
ABDUL GHAFFAR-Versus-WAQAS HAFEEZ and others
(a) Civil Procedure Code (V of 1908)---O. ###IX, Rr.1 & 2---Specific Relief Act (I of 1877), S.8---Suit for possession---Family partition---No nexus or connection with disputed land---Effect---Plaintiff filed suit for possession through partition along with an application for temporary injunction claiming therein that the plaintiff being co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary interest in every inch of the undivided Khata---Defendants contested suit on the ground that as a result of family partition the defendants were in possession of the disputed land out of total land in joint Khata for the last 25 years and that the plaintiff had no nexus or connection with the said partition---Trial Court dismissed application for restraining order against defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at preliminary stage---Right of the plaintiff in the disputed land and its extent had yet to be determined by recording of evidence---Defendants were in exclusive possession of the disputed property for the past 25 years on the basis of family partition---Prima facie case in favour of the plaintiff was not clearly made out---Defendants had invested huge sums of money in construction of CNG Station and installation of equipment and machinery thereon---Order restraining defendants from operating the CNG Station would cause inconvenience to them more compared to the plaintiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---Ingredient of irrepairable loss was missing in the suit---Plaintiff had failed to show any illegality or material irregularity committed by subordinate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.
Muhammad Muzaffar Khan y. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514 and AmanUllah v. HameedUllah and others 2006 YLR 856 ref.
(b) Civil Procedure Code (V of 1908)---O. ###IX, Rr.1 & 2---Injunctive relief-Equitable and discretionary in nature---All three ingredients have to be present at the same time---In case any one of the ingredients is missing, the court cannot grant temporary injunction.
(c) Specific Relief Act (I of 1877)--S. 8-Suit for possession---Family partition---Co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor.
•••••••
> 2009 SCMR 688,
> 2002/2001 CLC 71,
Co-sharer was dispossessed. He may recover possession by filing suit U/S 9 of Specific Relief Act or suit for partition
•••••
> 2011 MLD 1570,
Co-sharer in joint khata could not make construction without regular partition
••••••
> 2011 MLD 1548,
> 2011 MLD 1548,
Joint family property was privately partitioned according to report of bailiff.
Constructions were made at roof level. Permission to complete further construction was granted. Further construction would be at own risk and cast.
•••••
> 2011 MLD 1518,
> PLD 2012 Islamabad 68,
> 2012 CLC 1618
Co-sharer to protect his possession may file suit for permanent injunction until regular partition is effected
•••••
> PLJ 2012 SC (AJK) 182
Co-sharer in one khasra no would be a co-sharer in all khasra no and khata
•••••
> 2013 CLC 174
The possession of one co-sharer would be considered a possession on behalf of all co-sharer
•••••
PLD 2013 Peshawar 38
One co-sharer on the basis of possession could not take plea of adverse possession against other co-sharer
•••••
> 2013 MLD 1557
One co-sharer who is out of possession would be considered in possession on the principle of constructive possession
•••••
> 2013 CLC 711,
>?2008 YLR 420,
> PLD 1956 Pesh 96,
> PLD 1968 Dhaka 259,
> 2001 CLC 1211,
Simple suit for possession against co-sharer without relief of partition is not maintainable
•••••
> 2014 MLD 1116
Limitation would not run against co-sharer who is not in possession to file suit for possession against other co-sharer who is in possession.
•••••
> PLD 2014 Lahore 417
Property from one co-sharer maybe acquired through sale or gift but the same would be subject to regular partition and the new holder of title on the basis of sale etc could not established his own right beyond the right of original owner.
•••••
> 2008 YLR 420
One co-sharer against another co-sharer to recover possession of the suit property according to his respective share cannot file suit for possession rather co-sharer would file suit for partition.
•••••
> 1998 S C M R 1589
ABDUR REHMAN and 7 others-versuS-Sayed SULTAN ALI SHAH and 5 others
(a) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer in possession of joint Khata---Entitlement to retain possession till partition---Plaintiff's suit for declaration with perpetual injunction was dismissed by Trial Court---First Appellate Court, however, decreed plaintiff's suit while High Court set aside decree and judgment of First Appellate Court and restored judgment and decree of Trial Court whereby suit had been dismissed---Validity---Leave to appeal was granted to consider that "QabzaHissadari" having been transferred to plaintiff. they were entitled to remain in possession of land as co-sharers till such time as partition of Shamilat would take place; whether entries in "WajibulArz" showed that plaintiffs, as co-sharers, were entitled to bring land in question, under cultivation; and that plaintiffs being in physical possession of more than their shares, such fact was irrelevant to their right to remain in possession till partition of suit land.
(b) Specific Relief Act (I of 1877)--S.42---Constitution of Pakistan (1973), Art. 185---Plaintiff's possession in joint Khata over more area than their share in such Khata---Effect---First Appellate Court had rightly found that plaintiffs were entitled to keep whatever property they had reclaimed till partition of Shamilat land by metes and bounds would take place---High Court fell in error in modifying decree and judgment of First Appellate Court to the extent of plaintiffs' share in Shamilat land--¬Judgment and decree of High Court was set aside while that of First Appellate Court decreeing plaintiff's suit to the extent of their possession, was restored in circumstances.
•••••
NO STAY IN JOINT KHATA
> 2002 SCMR 1298
> 2004 MLD 1844.
