2014 PLP 569 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

This revision petition has been directed against the order of Additional District Judge, Kotli dated 21-11-2012, whereby the order of the learned Senior Civil Judge, Kotli dated 5-11-2012 was kept intact. Brief facts culminating into the instant revision petition, are that plaintiff/ petitioner herein, filed a suit for declaration with prayer of perpetual injunction, against the defendant/respondent herein, in the Court of Senior Civil Judge, Kotli. It was alleged by the plaintiff/petitioner that the land comprising Khasra No. 251 measuring 4 kanals, 8 marlas situated in village Kurti Tesil and District Kotli has been purchased by the plaintiff who was in possession as an owner, but the respondent got made fictitious entry in the sale-deed whereas the petitioner is the sole owner of the suit-land and respondent has no nexus with the suit-land. It was averred that respondent illegally got recorded his possession without lawful authority over the suit-land and has effected improvement in shape of construction of water tank, enjoyment of the crops and grass production on the said land. He further averred that the defendants, forcibly want to eject petitioner from the said land. Respondent/defendants filed written statement and submitted that the disputed land is in their possession, an application under Order XXXIX, Rules 1 and 2 for grant of injunction was moved along with the suit, Stay order was issued against the defendant to maintain status quo. After necessary proceedings, the learned Senior Civil judge passed the impugned order and allowed the construction of water tank on an undertaking by the respondents. On appeal, the said order of the learned Senior Civil Judge, Kotli dated 5-11-12 was maintained by the learned Additional District Judge, Kotli, by the impugned order dated 21-11-2012. Mr. Nisar Ahmed Mughal Advocate, the learned Advocate for the petitioner argued that the impugned order has been passed arbitrarily. He further argued that all the facts and grounds mentioned in the petition may be considered as integral part of his arguments. The learned counsel further contended that both the courts below have fallen in error while vacating the stay order to the extent of construction of water tank cutting of grass etc. Hence, both the orders of both the Courts below are not in accordance with law and facts of the case. Petitioner is facing difficulties and irreparable loss to the property. The learned counsel relied upon the case titled "Muhammad Zareef Khan and others v. Muhammad Maroof and 6 others" 2009 YLR 2454. Lastly he prayed to accept the revision petition with confirmation of status quo against respondent. While controverting the arguments of the learned counsel for the petitioner Ms.Tazeem Aziz Advocate the learned counsel for the respondent zealously argued on behalf of the respondent and defended both the impugned orders of the Courts below on all four corners and argued with vehemence that no illegality has been committed by the courts below. Both the order of Courts below have been passed in legal fashion keeping in view that the basic elements for issuance of an injunction i.e. nature of suit, cause of action such as prima facie case, balance of convenience and irreparable loss etc. Lastly, she prayed for dismissal of the revision. She has further argued that both parties are co-sharer and real brothers who are legal heirs of Hayat Ali that the construction of water tank was raised in the light of undertaking and no further construction has been raised at the spot, the petitioner has no locus standi both orders are not liable to set aside because every co-sharer has the equal rights in the suit-land. She has referred the case reported as 2010 MLD P-1000. I have heard the arguments of learned counsel for the parties and given my anxious thought to the record of the case. It is pertinent to mention here that certified copies of pleading have not been appended with the revision petition which is mandatory provision of law and it is clearly mentioned in section 115 of C.P.C., hence, revision petition merits rejection on this sole ground, however keeping in view the principle of substantial justice, the merits of the case have been considered. It is pertinent to mention that both Courts below have passed concurrent findings and exercised their discretion judiciously in accordance with the law. Moreover, as agitated by the counsel for petitioner that respondent Mr. Ilyas is dumping some construction material on the site, this version of the petitioner has not been supported by an affidavit nor it is borne out from the averments made in petition, rather than affidavit annexed with objections on behalf of respondent, wherein, it has been declared on oath, that petitioner had no case for issuance of injunction even on enjoyment of the crops and grass and other production of the suit-land. Lastly while going through the content of undertaking as well as impugned order of the trial Court it transpires that the property is joint and the respondent has categorically undertaken that he will claim no cost of improvements made on the suit-land, if ultimately that case is decided against him. In this situation both the impugned orders of both the courts below merit no interference by this court. In the view of above, finding no force in the petition, it is hereby dismissed with no order as to cost. The file shall be consigned to record room after due completion. Announced. AG/64/H.C.(AJ&K) Petition dismissed..