Abdur Rahim Bittani Advocate

18/09/2023

میرے دروازے غریب عوام کے لئے ہمیشہ کھلے ہیں۔ جہاں تک ہو سکے اس بےتحاشہ مہنگائی میں ارد گرد موجود غریبوں، ضرورت مند لوگوں کی مدد کرے۔ انشاللہ اچھے نتائج موصول ہونگے

18/09/2023

With learned Friend Raja M. Shahid Khan Farooqi Advocate High Court

01/04/2023

24/12/2022

کسی بھی شہر میں پانچ سال رہنے والا شخص اس شہر کے ڈومیسائل کا حقدار ہو جاتا ہے۔

(2015 PLC 650)

20/12/2022

Safe Custody of Samples of Narcotics and their transmission to the office of PFSA / Chemical Examiner.
Significance in Narcotic Cases.

Complete Case Law of Supreme Court upto December 2022...................................

2022 SCMR 2149
2022 SCMR 2121
2022 SCMR 2105
2022 SCMR 2093
Possession of narcotics --- Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution --- In a case containing the said defect on the part of the prosecution , it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.

2022 S C M R 1641
Possession of narcotics---Safe custody and safe transmission of samples to the Forensic Science Laboratory---Significance---Representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst---Non-establishing the said facts would cast doubt and would impair and vitiate the conclusions and reliability of the report of the Government analyst, thus rendering it incapable of sustaining conviction.
The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the MaIkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Control of Narcotic Substances Act, 1997 (Act of 1997) and the Control of Narcotic Substances (Government Analysts) Rules, 2001 (Rules 2001), rest upon the report of the analyst. It is prosecutions bounden duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act of 1997, and the chain of custody ensures the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner.

2022 SCMR 1627
Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Recovery was effected on 16-10-2011, whereas according to the report of Forensic Science Laboratory (FSL), the sample parcels were received there on 21-10-2011 through a constable---Neither the Moharrar who kept the sample parcel in the Malkhana from 16.10.2011 to 21.10.2011 nor the constable was produced by the prosecution to establish the Safe custody and safe transmission of the sample parcels to the concerned laboratory---Since Safe custody and safe transmission of the samples had not been proved by the prosecution, and as such illegality could not be ignored, it could not be held that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt---Jail petition was converted into appeal and allowed, and accused was acquitted of the charge by extending benefit of doubt to him

2022 SCMR 1422
Prosecution failing to establish safe custody and safe transmission of samples from the police to the Forensic Science Laboratory---In a case containing the said defect on the part of the prosecution it cannot be held with any degree of certainty the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

2022 SCMR 1052
Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Prosecution had failed to establish the safe custody of sample parcels in the Malkhana as the Moharar Malknana was not produced---Police official who allegedly transmitted the sample parcels to the concerned laboratory, was also not produced, hence prosecution failed to prove safe transmission of sample parcel to concerned laboratory---No explanation was provided for withholding such important piece of evidence---In view of such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt---Petition for leave to appeal was converted into appeal and allowed, and while extending benefit of doubt, the accused was acquitted of the charge.



2022 SCMR 1006
Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Police official/witness claimed that the complainant/police official had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory---Said Moharrar Investigation who allegedly kept the sample parcels in safe custody was never produced by the prosecution---Safe custody of sample parcels was not established by the prosecution---Police constable, who allegedly took the sample parcels to the concerned laboratory was also not produced---In such eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses---Said defect in the prosecution case went into the root of the case creating serious doubt regarding the narcotics and its recovery---Petitions for leave to appeal were converted into appeals and allowed, and while extending benefit of doubt to them, the accused persons were acquitted of the charge.


2022 SCMR 864
Safe custody of samples and their transmission to the Chemical Examiner--- Significance--- Prosecution had the responsibility to prove the recovery of the contraband material from the accused, its safe custody and sending the samples for chemical analysis without undue delay to avoid any possibility of substitution---Where the recovered contraband material, including the pieces deducted for the purpose of chemical analysis were not in safe custody and transmission of the samples to the Chemical Examiner was doubtful, possibility of their tampering could not be ruled out.


2021 SCMR 492
Safe custody and transmission of samples of the narcotic from the police to the chemical examiner not established---Duplicate forensic report presented---Held, that the prosecution failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity the relevant official, who had delivered the samples, failed to enter the witness box---Furthermore the prosecution relied on a duplicate forensic report, which was inadmissible in evidence, to confirm narcotic character of the contraband---Supreme Court observed that such appalling inaptitude of the functionaries tasked to prosecute the crime, left no juridical possibility to maintain accused's conviction---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.


2021 SCMR 451
Safe custody and transmission of samples of the narcotic from the police to the chemical examiner---Scope---Chain of custody or safe custody and safe transmission of narcotic drug began with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing---Such chain of custody must be safe and secure, because, the Report of the Chemical Examiner enjoyed critical importance under the Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples made the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused---Prosecution, therefore, had to establish that the chain of custody had been unbroken and was safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.
S. 9(c)---Possession and transportation of 45 kilograms of charas---Reappraisal of evidence---safe custody and transmission of samples of the narcotic from the warehouse to the chemical examiner not established---Held, that the letter of the Superintendent Preventive Service written to the Chemical Examiner stated that 43 sealed samples were being forwarded to the chemical examiner---Author of said letter was not produced as a witness---In the absence of the statement of the warehouse in-charge and the statement on behalf of the complainant (the official who recovered the narcotics),regarding the delivery of the samples of the narcotic drugs to the office of the chemical examiner, it could not be ascertained whether the narcotic drugs and the representative samples were deposited in the warehouse by the complainant; when and who collected the representative samples from the warehouse; and who delivered them by hand to the office of the Chemical Examiner---Such facts revealed that the chain of custody had been compromised and was no more safe and secure, therefore, reliance could not be placed on the Report of the Chemical Examiner to support conviction of the accused---Conviction and sentence recorded against the accused-lady were set aside in circumstances and she was acquitted of the charge---Appeal was allowed.



2021 SCMR 363
Safe custody and transmission of samples of the narcotic from the police to the chemical examiner---Scope---If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused---In the present case, evidence regarding safe transmission of alleged recovered narcotics to the police station and then onto the laboratory for chemical analysis was missing---Accused was acquitted of the charge in such circumstances.

2020 SCMR 687
Safe custody of the recovered substance at the police station or safe transmission of the samples of the recovered substance from the police station to the office of the Chemical Examiner not established---Effect--- Conviction could not be recorded in such circumstances.


2019 SCMR 2004
Safe custody and safe transmission of drugs from the spot of recovery till its receipt by Narcotics Testing Laboratory must be satisfactorily established---Such chain of custody was fundamental as report of Government Analyst was the main evidence for the purpose of conviction---Prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure---Any break in the chain of custody i.e. safe custody or safe transmission would impair and vitiate the conclusiveness and reliability of the Report of Government Analyst thus rendering it incapable of sustaining conviction---Supreme Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed.


2019 SCMR 1649
Safe custody of contraband substance by police not established---Safe transmission of samples to the Chemical Examiner not established---According to the FIR and the memorandum of recovery, ten packets of charas weighing one kilogram each had allegedly been recovered from the custody of the accused and it had been maintained by the prosecution that from each of the said packets one sample weighing five grams had been separated for chemical analysis---One of the police witnesses had categorically stated before the Trial Court that each of the recovered packets had only one slab in it but when the recovered substance had been produced before the Trial Court and was opened it was revealed that ten packets allegedly recovered in the case contained 96 slabs in all---Prosecution alleged that each of the parcels separated from the recovered substance was affixed with three seals reading the initials S.K. but the record showed that the monogram carrying the alphabets S.K. was not found available in the case-property at all---Record of the case also showed that nobody had appeared before the Trial Court to confirm safe custody of the recovered substance at the police station and the moharrir had also not appeared before the Trial Court---No witness had been produced before the Trial Court to state that the recovered substance or the parcels had not been tampered with while in transmission to the Forensic Science Laboratory or the office of the Chemical Examiner---Shape in which the recovered property was produced before the Trial Court indicated that the property so produced before the Trial Court was different from the property allegedly recovered at the time of the raid and recovery---Case against the accused was full of doubts the benefit of which had to be extended to him---Appeal was allowed, the conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.


2019 SCMR 1300
Safe custody and transmission of samples of the alleged drug from the police to the Chemical Examiner---In cases where the chain of custody was broken, the report of the Chemical Examiner lost its reliability making it unsafe to support conviction---In the present case the sample of narcotic was dispatched to the Government Analyst for Chemical Examination through an officer of the Anti-Narcotics Force, but the said officer was not produced to prove safe transmission of the sample from the police to the Chemical Examiner---Chain of custody thus stood compromised---Resultantly, it would be unsafe to rely on the report of the Chemical Examiner---Conviction and sentence of accused was set aside in circumstances---Appeal was allowed accordingly.


2019 SCMR 1217
Safe custody of contraband substance by police---Scope---Case record showed that safe custody of the recovered substance at the local Police Station had not been established by the prosecution during the trial---Moharrir had been produced by the prosecution before the Trial Court but he had said nothing about receipt of the case-property or its safe custody by him---Where safe custody of the recovered substance was not established by the prosecution it could not be held that the prosecution had succeeded in establishing its case against an accused person---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeal was allowed.



2019 SCMR 608
Safe transmission of samples to the Chemical Examiner not established---Effect---In a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt---Record of the present case showed that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution---Station House Officer (SHO)/complainant had stated before the Trial Court that he had deposited the recovered substance at the malkhana of the local police station but admittedly the moharrir of the said police station had not been produced before the Trial Court to depose about safe custody of the recovered substance---Head Constable who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance---Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside in such circumstances and they were acquitted of the charge by extending the benefit of doubt to them---Appeal was allowed accordingly.

2018 SCMR 2039
Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory---Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory---Said chain of custody, was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory---Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory---Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure---Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample(s) and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

2015 SCMR 1002
Safe custody of narcotics---Proof---Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle---Validity---Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom---Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court---Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form"---If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as "conclusive" proof of recovery of narcotic substance from accused person---Investigating officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner---No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner---Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit---Prosecution failed to prove its case against accused persons beyond reasonable doubt---Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed.

18/12/2022

21/10/2022

عمران خان نا اہلی کیس

17/10/2022

Family Cases (Laws)
FAMILY, COURT MARRIAGE, DIVORCE, CUSTODY OF CHILDREN, SUCCESSION CERTIFICATE, GUARDIANSHIP CERTIFICATE, UNMARRIED CERTIFICATE, PROBATE, WILL, ADOPTION AND PERMISSION TO TAKE MINOR ABROAD, GUARDIANSHIP, CHRISTIAN DIVORCE, SHIA DIVORCE, SUNNI DIVORCE. DEATH AND BIRTH REGISTRATION IN NADRA UNION COUNCILS.

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05/10/2022

اس بابا نے آج صوابی کی عدالت میں اپنے بیٹے کے 2 قاتلوں کو کمرہ عدالت میں جج کے سامنے بھون ڈالا اور پھر گرفتاری دے دی جب نظام آپکو 7 سال میں انصاف نہ دے سکیں تو پھر مدعی خود جج وکیل بن کر انصاف کرتا ہے

03/10/2022

مشترکہ کھاتہ بارے فیصلہ جات
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
••••••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

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> 2006 YLR 856
Injunction against co-sharer cannot be issued because co-sharer had constructive possession in each inch in the property.
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> 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
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> 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.
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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.
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2006 MLD 442,
Co-sharer may protect his possession by way of injunction till regular partition.
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2008 YLR 420,
Co-sharer in possession over joint property could not dispossessed accept through regular partition
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2008 YLR 2454,
One co-sharer without consent of other co-sharer could not change nature of the suit property except through partition
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> 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
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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.
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> 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
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> 2011 MLD 1570,
Co-sharer in joint khata could not make construction without regular partition
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> 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.
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> 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
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> PLJ 2012 SC (AJK) 182
Co-sharer in one khasra no would be a co-sharer in all khasra no and khata
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> 2013 CLC 174
The possession of one co-sharer would be considered a possession on behalf of all co-sharer
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PLD 2013 Peshawar 38
One co-sharer on the basis of possession could not take plea of adverse possession against other co-sharer
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> 2013 MLD 1557
One co-sharer who is out of possession would be considered in possession on the principle of constructive possession
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> 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
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> 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.
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> 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.
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> 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.
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> 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.
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NO STAY IN JOINT KHATA

> 2002 SCMR 1298
> 2004 MLD 1844
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