1985 PLP 1197 (MLD)

This is a miscellaneous appeal filed by the appellants, namely, Province of Sind, Deputy Commissioner, Sukkur and Divisional Forest officer, Shikarpur, challenging the order, dated 13-11-1979 passed by Mr. Ahmad Yar Khan, District Judge, Shikarpur, whereby the application of the respondents for grant of interim injunction in their favour was allowed. I have heard Syed Sarfaraz Ahmed, learned Asstt. Advocate- General for the appellants. No one appears on behalf of the respondents. Respondents and Mr. Nooruddin Sarki, Advocate, who appears for the respondents have been called absent.

2. The case of the respondents /plaintiffs is that their ancestors owned about 400 Acres of land in Deh Jhali Kalwari, Taluka Garhi Yasin, District Sukkur and that the said land was "Kabuli" land and was duly surveyed but this land was eroded by River Indus and that in 143-44 River Indus changed its course and the plaintiffs, land re-appeared and, according to them, was identifiable at the site. According to the plaintiffs, the lands, therefore, reverted to them as their own property but no fresh survey was carried after the River had changed its course and in the year 1964, according to the plaintiffs/ respondents, the Deputy Commissioner, Sukkur, granted a compact block of 215-03 Acres of land belonging to the respondents to the Forest Department. The respondents went in appeal before the Additional Commissioner, who remanded the case to the Deputy Commissioner for satisfying the Darya Khurdi rights of the respondent but Deputy Commissioner, Sukkur, reported that no other land in the Deh was available and on this report the Additional Commissioner finally rejected the appeal of the respondents holding that the rights of the Forest Department were superior to those of the respondents. In these circumstances, the respondents /plaintiffs filed Suit No. 73/70 for declaration and injunction against the appellants and they also filed an application under Order XXXIX, rules 1 and 2 for issuing temporary injunction against the appellants restraining them from interfering with the suit land during the pendency of the suit. This application was rejected by the learned Civil Judge First Class, Sukkur, by order, dated 3-12-1970. The respondents filed an appeal and by order dated 8-1-1972, Mr. A.G. Muhammadally, learned District Judge, Sukkur, dismissed the appeal of the respondents. Thereafter, another application was moved before the trial Court for temporary injunction but the same also met the same fate when it was dismissed by order, dated 24-3-1973 of the trial Court. Then the suit was renumbered and given the number of year 1979 and then another application for temporary injunction was moved and this injunction-application was granted by the impugned order, dated 13-11-1979..

3. In support of the present appeal the main argument of Syed Sarfaraz Ahmad, learned Asstt. A.-G. is that Initially the trial Court had dismissed the injunction application and an appeal was taken by the respondents to the District Judge but the same was also dismissed and then the second injunction application had been filed and the same was also dismissed, as observed earlier, by order, dated 24-3-1973 of the trial Court. The order, dated 24-3-1973 of the trial Court reads as follows: - "I have heard the counsel for the parties and have also perused the material place on the record. The previous application moved by plaintiff under Order XXXIX, rules 1 and 2 and under section 151, C.P.C. was dismissed by the Civil Judge, Sukkur. Plaintiff went in appeal against that order before District Judge, Sukkur. District Judge also dismissed the appeal on the ground that land in suit was unsurveyed and that there was no evidence to establish that the land in suit was the ancestral property of the plaintiffs. Plaintiffs have produced certain documents before me but these documents viz. copy of F.I.R. and Revenue Receipts, the map and the letter of Mukhtiarkar, Garhi Yasin cannot establish that land has been surveyed and that it is the ancestral property of plaintiff. I, therefore, find that plaintiffs have failed to establish their case as required by District Judge, Sukkur." The contention of the learned Asstt. A.G. is that two injunction applications had been dismissed and as far as the first injunction application was concerned, the appeal filed by the respondents had also been dismissed by the learned District Judge, Sukkur, and in the second round of the injunction application, even after further documents had been filed, according to the trial Court, there was no material on the record to prima facie establish that the land had been surveyed or that the land in question was the ancestral property of the respondents. According to the learned Asstt. A.G., if the respondents were aggrieved by the order, dated 24-3-1973 of the trial Court dismissing the second injunction application, an appeal should have been filed by them. No such appeal had been filed and the third injunction application had been filed before the learned District Judge after the suit had been transferred for disposal by the learned District Judge. The contention of the learned Asstt. A.G. has great force. There are three orders in the field against respondents and if after filing the fresh documents, the second injunction application of the respondents had. been dismissed by the trial Court, an appeal should have been filed. This was not done. The respondents waited for several years and then filed a fresh injunction application, the third one in the series of injunction applications, before the learned District Judge. Then it is an admitted. position that the lands had not been surveyed after the River Indus had changed its course, and as such, without evidence being recorded, there was prima facie no evidence on record that the lands which previously belonged to the ancestors of the respondents, were the same lands which the respondents were now claiming. As no prima facie case had been made out, as correctly observed by three judges, the learned District Judge should not have granted the interim injunction.

4. Miscellaneous Appeal No. 91/79 is accordingly allowed and the impugned order, dated 13-11-1979 of Mr. Ahmad Yar Khan, learned District Judge, Shikarpur, is set aside. As a result the injunction application filed by the respondents stands dismissed. The appellants shall also be entitled to costs. This is a very old suit having been filed in 1970. The trial Court is directed to dispose of the suit expeditiously, and in any case by 31-12-1985. M. Y. H. Appeal accepted.