1998 PLP 165 (MLD)

Mian Fasih-ul-Mulk for Petitioner. Shah Jehan Khan Addl. A.-G for Respondent. Date of hearing: 7th April 1996. Maulvi Abdul Khaliq, the petitioner herein, filed a suit before the Court of Senior Civil Judge, Swat at Mingora and asked the grant of a declaratory decree that he is in possession of a certain piece of land as an owner through purchase and Government of N.-W.F.P., etc. the defendants have got no rights and interests therein and cannot as such instal a tube-well on the land. He asked further by way of consequential relief the grant of a decree for perpetual injunction against the Provincial Government in order to restrain it from digging the tube-well in the premises and simultaneously moved an application for the grant of an interim order like this. A temporary injunction was although granted by the trial Court. but on the acceptance of appeal lodged by the respondents the Appellate Court of the Additional District Judge, Swat vacated it, vide judgment and order, dated 20-3-1995. Hence this petition under section 115 of the Civil Procedure Code by Maulvi Abdul Khaliq the plaintiff.

2. I have heard Mian Fasih-ul-Mulk, Advocate on behalf of the petitioner and Mr. Shah Jehan Khan, the Additional Advocate-General. The petitioner claims ownership of the suit land through purchase from Bakht Pur Khan on the basis of a registered deed, dated 13-2-1985 while the Provincial Government pleads that the property was purchased by it from one Jaffar Khan on the basis of a document, dated 6-6-1994. Bakht Pur Khah from whom the petitioner states to have purchased the suit land happens to be a brother of the said Jaffar Khan. The land involved in both the sale deeds has been described through boundaries. As it appears the entire land was jointly owned by the two brothers with some other persons and a portion thereof (1 /24th share measuring about 4 Marlas) was sold by Bakht Pur Khan to the petitioner on 13-2-1985.whereas a piece of 900 square feet from it was subsequently transferred by Jaffar Khan in favour of Provincial Government etc. on 6-6-1994.

3. Admittedly no partition of the common land has yet taken place. The learned Appellate Court in this view of the matters rightly held that in case the plaintiff sustains any loss because of the construction of tube-well he can be afterwards adequately compensated. The petition as such having no good arguable case or a balance of convenience in his favour was rightly refused the prayer. The proposed loss, if any, would be definitely countable in terms of money and the petitioner could be well-compensated in the event of success in his claim. A preventive relief is always granted at the discretion of the Court and the Court can refuse the grant of injunction if its order interferes with the public duties of any department of the Central Government or any Provincial Government. On this score too, the plaintiff could not be granted a temporary relief like this. I, therefore, see no error .in the exercise of jurisdiction on the part of the Appellate Court in the matter or it acted in the exercise of jurisdiction illegally or with material irregularity. There is no substance in this revision petition which is dismissed with no order as to costs. C.M.S./2199/P Revision dismissed.