2011 PLP 2295 (YLR)

This appeal is filed against the judgment of the learned Single Judge dated 5-4-2010 wherein the dispute, whether the appellants can build a public project on land claimed to be in possession of the respondents Nos.1 and 9 because the said respondents are encroachers on said land, has been left for determination by the learned civil court in pending litigation between the parties. A portion of the commercial plaza erected by the respondent No.1 in the disputed land was demolished - by the appellants in order to widen the road and to complete the civil works of a drain project. In the impugned judgment the learned single Judge rightly concludes that the matter regarding encroachment involves a factual controversy which ought to be determined by a court of plenary jurisdiction. The grievance in appeal is that the appellants have in the meanwhile been restrained from demolishing any property of the respondents to complete their public projects.

2. On 31-5-2010 after hearing the learned counsel for the parties an interim arrangement was devised by the Court which was consented by the parties present before the Court. Subsequently, by order dated 16-6-2010 an application by respondent No.9 for modification/ amendment of that order dated 31-5-2010 was also disallowed by the Court.

3. The learned counsel for the parties and DCO, Sheikhupura have again been heard today but the Court does not see any ground to modify that arrangement which is temporary and otherwise subject to outcome of the controversy regarding entitlement to the disputed land claimed by the appellants to have been encroached by respondents Nos. 1 and

9. Notwithstanding the direction given by the learned Single Judge, during the last two months no progress toward that determination has taken place in the pending litigation between the parties. It is plain that the controversy as to entitlement of land in dispute can be resolved only by reference to evidence. Such an inquiry may be conducted by the learned civil court in the pending proceedings between the parties or, if necessary, in any fresh proceedings for partition that may be launched by either of them.

4. Accordingly, this Court is neither inclined to decide that controversy nor to authorize in the meanwhile the demolition of a constructed building until a finding on the question whether the land claimed by the appellants to be public property and to be illegally possessed by the respondents Nos. 1 and 9 is determined by the competent court as directed in our order dated 31-5-2010.

5. However, since valuable interests on both sides are involved, it is important that the afore-noted question is decided expeditiously. Accordingly, the learned court below hearing the suit for permanent injunction filed by the respondents claiming entitlement to the disputed land shall, if the above noted question is germane to the dispute pending before it, determine the said question on or before 31-7-2010 in accordance with law and based upon evidence produced by the parties. Disposed of. H.B.T./G-85/L???????????????????????????????????????????????????????????????????????? Order accordingly.