2022 PLP 513 (CLC)

MUHAMMAD AMEER BHATTI, C.J

As both the parties have presented full-fledged arguments, therefore, this case is being treated and decided as admitted case.

2. The properties, seven in numbers, mentioned in para No.2 of the plaint, were transferred by predecessor-in-interest of the parties Muhammad Hussain in favour of the respondent through gift deeds. It is not out of place to mention here that only properties No(i) & (ii) were owned by father of the parties Muhammad Hussain whereas the other properties were owned by his sisters, who appointed him General Attorney granting permission for their transfer and all these properties were also transferred by the General Attorney in favour of his son-defendant. The present plaintiffs-petitioners took the exception and instituted a suit for declaration, cancellation, partition, mesne profit and permanent injunction. Along with the suit, an application filed for grant of temporary injunction in terms of restraining the respondent from alienating the properties further was rejected by the learned trial Court and appeal whereof was also dismissed by the learned first appellate Court vide impugned order dated 02.10.2017 and judgment dated 06.06.2018, respectively.

3. At the very outset the learned counsel for the petitioners submit that they will not press this petition concerning the grant of temporary injunction to the extent of properties Nos.(iii), (iv), (v), (vi) and (vii); however, the properties Nos.(i) and (ii), which were owned by their father and gifted through purported gift deeds depriving the petitioners from their legitimate right of inheritance, are under challenge before the learned trial Court in a suit for declaration and cancellation. Said that the property-in-dispute was got transferred by committing fraud and misrepresentation and the alleged documents were forged and fictitious. Add that the disputed questions of facts are involved and without recording evidence, same cannot be resolved, therefore, the petitioners have a good prima facie case and if the respondent is not restrained from alienating the property-in-dispute to the extent of their shares, it will cause inconvenience and multiplicity of litigation. In such eventuality, they will suffer an irreparable loss, therefore, direction to the respondent not to alienate the property-in-dispute is justified in the interest of justice.

4. On the other hand, the learned counsel for the respondent contend that the petitioners have no prima facie case as the disputed property had been transferred to the respondent by its owner and till his death nobody has challenged validity of the said transfer deeds, therefore, petitioners' suit is time-barred. Further add that owner of the properties had gifted the same through valid gift deeds, therefore, the petitioners have no locus standi to challenge it. Reliance is placed on 'Dr.Muhammad Javaid Shafi v. Syed Rashid Arshad and others' (PLD 2015 Supreme Court 212), 'Nasarud Din v. Haji Ghulam Nabi' (1989 MLD 1368), 'Marghub Siddiqi v. Hamid Ahmad Khan and 2 others' (1974 SCMR 519) and 'Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another' (PLD 1970 Supreme Court 139).

5. I have heard the learned counsel for the parties and gone through record of the case.

6. It is noticed that the petitioners have allegedly been deprived of their legitimate right of inheritance through alleged gift deeds and it is the case of the petitioners built in their plaint that they got the information about transfer of the properties in January, 2015 when they obtained Fard Malkiyat from the revenue officer, therefore, question of limitation being a mixed question of fact and law will be determined by the learned trial Court after recording evidence at the time of final adjudication. Regarding the purported gift deeds through which the properties had been allowed to be transferred in favour of the defendant had also been alleged by the plaintiffs in their plaint as forged and fabricated documents. In such eventuality, this Court is of the view that in case of denial by petitioners in witness box, onus will be on respondent to prove gift deeds coupled with the circumstances warranting exclusion of the petitioners from inheritance as it is well settled law that beneficiary is under legal obligation to prove the validity of the transaction particularly where females have been deprived from their legitimate rights of inheritance through purported gift deeds, therefore, petitioners would suffer irreparable loss if disputed property is further transferred by the respondent and in such eventuality they will face inconvenience for multiplicity of litigation. Therefore, it is evident that the necessary ingredients for grant of relief under Order XXXIX, Rules 1 and 2, C.P.C., i.e. existence of an arguable case, apprehension of an irreparable loss and balance of inconvenience exist in favour of the petitioners. Reliance is placed on Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092), wherein it was held that, "No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such relief it is mandatory to establish that in order to obtain an interim inunction, the applicant has not only to establish that he has a prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit." The case-law cited in Pakistan Railways through AGM (Traffic), Lahore v. Messrs Four Brothers International (Pvt.) Ltd. and others (PLD 2016 Supreme Court 199), and Mst. Zeeshan Nadeem v. The LYCEUM through Mst. Azra Umar (2003 SCMR 429) are also quoted in support of the view stated hereinabove.

7. In view of the above, I am inclined to accept this revision petition to the extent of properties Nos.(i) and (ii), mentioned in para No.2 of the plaint, with direction to the defendant not to alienate the properties to the extent of petitioners' share. For the other properties, the petitioners have not pressed this petition, however, their claims and rights in their suit shall be decided in accordance with law. ZH/N-27/L Revision accepted.