1982 PLP 717 (CLC)

Mian Fazl‑i‑Mahmud for Appellant. S. M. Masud for Respondent. Dates of hearing : 23rd September and 4th October, 1981. Through a registered sale‑deed dated 19‑11‑1962 the petitioner purchased about 261 kanals of land in village Tarra Garh of Tehsil Pasroor. The respondent is married to a sister of the petitioner's wife. On 10‑5‑1979 the respondent filed a civil suit for a declaration to the effect that he was the actual owner in possession of the land in question and that the petitioner was merely a benamidar on his behalf. He alleged that the entire considera tion for the sale was provided by him, but, as he was an employee of the District Council he was not sure if he could purchase agricultural land in his own name. For that reason the sale‑deed was ostensibly made out in the name of the petitioner. He also claimed that he had throughout remained in possession of the land in dispute and had incurred considerable expense from his own pocket in improving the land.

2. Together with the institution of the suit he also filed an application for interim relief inter alia for the protection of his possession pendente lite.

3. The application for interim relief was resisted by the petitioner who denied that he was merely a tenamidar for the respondent. He stated that except for three fields which were in his actual possession the rest of the land was being cultivated by his tenants and that the tenants had been paying batai to him.

4. The trial Court allowed the prayer for interim relief in the following terms :‑ "The defendant is restrained from interfering with the possession of the property in dispute on the condition that the (respondent) should from rabi 1979 keep on depositing in Court the earnings from the crops within fifteen days of their harvesting."

5. From the order of the trial Court the petitioner went in appeal before the learned District Judge Sialkot but without any success. He has how come in revision to this Court.

6. To begin with, this civil revision was heard and decided by me on 7‑12‑1980. Subsequently, I found that the respondent had not been serve and as such this civil revision had been disposed of without affording him any opportunity of being heard. Consequently, I decided to review my earlier order and, rehear the civil revision.

7. The learned counsel for the respondent has objected to the competency of this civil revision. He contends that the Courts below have rightly or wrongly held the respondent to be in possession of the land in dispute. This is a finding of 'fact and it cannot be reviewed in exercise of the revisional jurisdiction. He further points out that issuance of a temporary injunction is a matter well within the discretion of the Courts below and that ordinarily the High Court does not interfere with their exercise of jurisdiction in this regard. In support of his submission he has referred to the cases of Muhammad Umar Beg v. Sultan Mahmood Khan (P L D 1970 S C 139), Khan Muhammad v.' Muhammad Ishaque (1975 S C M R 471), Muhammad Swaleh v. United Grain & Fodder Agencies (P L D 1964 S C 97), Feroze Din v. Abdul Hamid (P L D 1969 Lah. 89), Abdul Kafil v. Abdul Qayyum Khan (P L D 1969 Pesh, 294), Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149), Muhammad Saleh v. Maher Shah (1980 C L C 662) and Khuda Bakhsh v. Hamid Ali Shah (1981 C L C 901). These cases no doubt support the contentions of the learned counsel. However, it is equally well settled that if the Courts below have misread the record or ignored material B circumstances while recording their decisions the High Court will not only be competent but also justified in invoking its revisional jurisdiction in correcting their errors.

8. Except for three fields which are shown in the revenue record to he in the possession of the petitioner, the rest of the land is being cultivated by Bagh Ali and Muhammad Zahoor Nasir. In the revenue record Bagh Ali and Muhammad Zahoor Nasir have been shown as tenants under the petitioner. Muhammad Zahoor Nasir is the son of the respondent. Both Bagh Ali and Muhammad Zahoor Nasir filed affidavits before the trial Court that they were tenants under the respondent and that they had also been paying the batai to him. They further stated that the tube‑well had been installed by the respondent out of his own funds. Ahmad Din is the general attorney of Dian, the original owner of the land. It was Ahmad Din who had executed the sale‑deed in favour of the petitioner. He too filed an affidavit stating that the transaction of sale was in fact struck with the respondent and that it was the respondent who had paid the consideration for sale.

9. Both the Courts below, rightly observed that the question whether the petitioner was a benamidar was one which could only be decided after the evidence had been recorded, yet curiously enough, they chose to deprive the petitioner of the benefit of the land even before they had found that he was not the true owner. The learned District Judge was impressed by the affidavits of Bagh Ali, Muhammad Zahoor Nasir and Ahmad Din. However, he overlooked the fact that the sale had taken place about 20 years ago and during this period the respondent had taken no steps to have his name substituted for the petitioner as real owner of the land in dispute. Further, as it appears at present when no evidence has been recorded the explanation offered by the respondent for buying the land in the name of the petitioner does not seem very convincing for the reason that only two months after the sale he had purchased another piece of land in the name of his own son. During the intervening period of 20 years the petitioner had been treating the property as his own. He mortgaged it with the Agricultural Bank to raise a loan. He challenged the order of the Settlement authority with respect to this land in the High Court in writ jurisdiction. He has also produced certain receipts showing that he had a tube‑well installed from his own funds.

10. Taking all the circumstances into consideration I should think that the Courts below committed a material illegality in depriving the petitioned of the benefit of the land before it was established finally that he was merely a benamidar. I would ,accordingly set aside their orders. However, in order to safeguard the interest of the respondent I direct that the petitioner shall furnish adequate security for the mesne profits to the satisfaction of the trial Court. There will be no order as to costs in this petition. R. M. A. Appeal dismissed.