Law:

Section:

Specific Relief Act (I of 1877)-------S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction with an application for temporary injunction---Both the plaintiffs and defendants were co-sharers in the suit land---Defendants were allegedly constructing shops on a valuable portion of suit land, the plaintiffs instituted a suit for permanent injunction to restrain the defendants from altering the nature of the suit land till its official partition---Along with suit an application for temporary injunction was also filed by the plaintiffs---Both courts below refused to grant temporary injunction to the plaintiffs in view of the undertaking given by the defendants that construction could be considered at their own risk and cost---Validity---Defendants had specifically stated in their written statement that they were absolute owners in possession of the suit land; and that there was no question of its partition, but at the same time, their suit for partition in the revenue court was pending---Prima facie, it raised question about the intention of the defendants to perpetuate their possession on a valuable portion of joint land by constructing shops which apparently had commercial potential value---Undertaking submitted by the defendants in the Trial Court had revealed that it had been submitted in haste---Said document had not been dated by the scribe at all---Although it had been treated as an affidavit, but neither its form was of an affidavit nor it had been duly attested as an affidavit---Both courts below had concurrently erred in placing extraordinary reliance on the incomplete and unauthenticated affidavit for bypassing the general principle that normally "a co-sharer could not be allowed to alter the nature of joint land unless it was partitioned"---Impugned concurrent orders of the courts below being materially irregular due to the said default, were set aside---Application for temporary injunction, would be deemed pending for re-decision by the Trial Court strictly in accordance with law. Gul Sadbar Khan and S.M. Attique Shah for Petitioners. Abdul Sattar Khan for Respondents. Date of hearing: 15th September, 2008.…

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