2014 PLP 370 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

This revision petition has been filed against the order of Additional District Judge Muzaffarabad dated 21-7-2010, whereby, the appeal filed by the present petitioners was dismissed. The precise facts forming the background of the instant revision petition are that one of the petitioners Muhammad Jamil Mughal has filed a suit for declaration with perpetual injunction in the Court of Senior Civil Judge Muzaffarabad. It was averred by him that the land comprising Khasra Nos. 1226, 1227 recorded in "Hibba", 1427 and 1426 measuring 104 Kanals 12 Marlas situated in Lawasi Tehsil and District Muzaffarabad is in the ownership and possession of plaintiff and pro forma-defendants as co-sharers, in which, there are trees like "Kail" etc for cutting. It was further averred that the plaintiff and pro forma-defendants want to sell the above said tress and they were unable to approach the concerned Department for completion of process for selling the trees. It was also averred that the defendant No. 1, who is close relative of plaintiff and pro forma-defendants, with ulterior motives, got executed power of attorneys of plaintiff and pro forma-defendants in his favour for completion of process, so that he approached the concerned Department and completed the process for cutting the trees. The plaintiff claimed that after cutting the trees, the plaintiff and pro forma-defendants asked the defendant No. 1 to settle the matter of transportation and sale of the trees, whereby the defendant No. 1 showed the defendant No. 2 as owner of the suit land and trees, and refused to settle the matter. It is also claimed that the plaintiff and pro forma-defendants came to know that the defendant No. 1, by misusing the powers of attorneys got transferred the land in dispute in his wife's name (Mst. Shaista Rafique) through "Hibba Nama". The plaintiff submitted that "Hibba Nama" in favour of defendant No. 2 is illegal, against the facts, without jurisdiction, against the rights of the plaintiff, which is based on fraud and is liable to be cancelled. The plaintiff prayed that a decree for declaration-cum-perpetual injunction may be passed in favour of plaintiff and against the defendants. After hearing the parties on the application for interim relief filed by the plaintiff, the learned Civil Judge Muzaffarabad dismissed the application, vide its order dated 23-6-2010. Feeling aggrieved by the said order, the present petitioners filed an appeal in the Court of District Judge Muzaffarabad, who after hearing the parties, dismissed the appeal, hence this revision petition. The learned counsel for the petitioners argued that both the Courts below fell in error while passing the conditional order of status-quo on execution of undertaking. The learned counsel argued that as per the contents of para. 4 of the plaint, the respondents Nos. 1 to 4 are the owners of 17 Kanals of land in the total subject land measuring 104 Kanals. The learned counsel for petitioners Mr. Aftab Ahmed Awan while arguing on behalf of Mr. Muhammad Yaqoob Mughal, the senior Advocate of petitioners has prayed that the contents of the revision petition on facts and law may very kindly be considered as integral part of his arguments. On the other hand, Sardar Pervaiz Akhtar Niazi, the learned counsel for respondents controverted the arguments advanced on behalf of petitioners and argued that out of total land measuring 104 Kanals, the share of the petitioners comes to 6/7 Kanals, whereas the cutting of forest has taken place in the land measuring 30/35 Kanals in the light of sanction of respondents Nos. 5 to

8. It is further argued that as the sanction order of cutting of trees from forest has not been challenged earlier by the petitioners in their plaint, thus, the petitioners have no prima facie case and not entitled to any interim/ temporary relief. He has fully supported both the impugned orders of the Courts below and agitated that this is a case of concurrent findings of the Courts of facts, which merit no interference by this Court. I have heard the learned counsel for the parties and gone through the record. It transpires from the observation made in the impugned order of the Courts below that two fold dispute is being contested between the parties regarding the suit land, one for declaration against gift deeds and the transfer of same suit land by way of alleged power of attorney and the second is the share in the sale price of the subject timber of the suit land. The Courts below have passed the impugned orders by asking the respondents Nos. 1 and 2 to execute undertaking in the Court, that they will be bound to pay the sale price of the timber of the land without litigation in case of final declaration of the relief claimed by the petitioners in their favour. In my view, the petitioners have been properly/legally redressed of their grievances and both the Courts below have concurrently reached the same conclusion, hence the impugned order does not warrant interference by this Court. In view of what has been stated above, finding no force in this revision petition, it is hereby dismissed with no order as to costs. AG/48/H.C.(AJ&K) Revision dismissed.