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Civil Petition No. 244 of 1981, decided on 10th March,1981

(On appeal from the judgment and order dated 13‑12‑1980 of the Lahore High

Court in Civil Revision No. 289/13 of 1980).

Transfer of Property Act (IV of 1882)‑-

----S. 44 ‑Joint property‑ Co‑sharer cannot, ordinarily, be permitted to alter nature of property and put it to use different from ‑q one for which intended‑High Court taking sufficient care to protect interest of petitioner and order passed by it not likely to cause prejudice to him‑Leave to appeal refused.

Kishori Lal v. Khair Din 1937 I C 731 distinguished.

Sardar Ata Ullah, Advocate instructed by Tanveer Ahmad, Advocate‑on Record for Petitioners.

‑This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 13th of December, 1980, by which a revision petition filed by the respondents was accepted, and the decree granted by the first appellate Court was partly modified.

The petitioners had filed a suit against the respondents for a declara tion that the respondents had no right to alter the character of the land, jointly owned by the parties, by erecting a building over it without the consent of the petitioner, and for a permanent injunction that the defen dants should not alter the nature of the land by the intended construction. The trial Court dismissed the suit holding that the area under the pro posed construction was in Hissadari possession of the respondents, and they were entitled to make such improvements on it as they desired: In appeal by the petitioners, the learned Additional District Judge held that a co‑sharer in possession had no right to convert agricultural land into other uses, and, accordingly, be decreed the suit. The respondents there upon filed a revision petition, which has been accepted by the learned Judge, and he has ‑modified the decree granted by the first appellate Court to the extent that if on partition of the joint holding, the land in question, upon which the defendants proposed to raise the construction; does not fall in their share they would remove the construction, and shall not claim any compensation from the present petitioners for making any improvement therein.

Leave to appeal is sought on the ground that a co‑sharer has no right in law to convert the joint property to a different use without the express consent of the other co‑sharers. In support of this proposition, the learned counsel has placed reliance on Kishori Lal v. Khair Din (1937 1 C, 731). Mr. Ata Ullah, learned counsel for the petitioners, submits that the effect of the judgment of the High Court is that the petitioners will be compelled to file a suit for partition, and that the presence of the construction raised by them would create complications,

The judgment relied upon by the learned counsel relates to the main tenance of status quo during the pendency of litigation, and is, therefore, not directly relevant where the suit has been finally decided. However, there can be no cavil with the proposition that ordinarily a co‑sharer cannot be permitted to alter the nature of the property, and to put it to a different use from the one for which it is intended. But we notice that in the present case the High Court has taken care to protect the interest of the petitioners by stipulating that if the portion of land in the possession of the opposite‑party does not fall to their share, then they will not claim any compensation for the construction raised by them. We also notice that the land is at present being used for agriculture land, its value is likely to be enhanced if it becomes a building site. On this ground as well the order passed by the High Court is not likely to cause any prejudice to the present petitioners. In the circumstances, we see no reason to interfere with the same.

The present petition, accordingly, fails and is hereby dismissed.

Petition dismissed.

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