1978 PLP 1 (SCMR)

(b) That the learned Additional reliance on the Police report dated 25th of September 1973, lodged by the appellant in which he admitted to have lost possession. (c) That the appellant had filed a suit being Case No. 347/1 in the Court of the Civil Judge. Lahore on 14th September 1973, for injunction to restrain Muhammad Ramzan, the admitted owner of the hard, from dispossessing him from the tube‑well which suit was dismissed for default on the 11th January 1974. and the prayer for injunction was refused earlier on the 25th November 1973, on the basis of the Police report dated 29th September 1973, and the order of the Civil Judge, restraining the appellant from interfering with the posses sion of the respondent. (d) And lastly, en the proceedings by way of Suit No. 892 of 1473 in the Court of Civil Judge, Toba Tek Singh, filed by Muhammad Ramzan on 17th October 1973, against the respondent seeking injunction against him from operating the tube‑well on account of breach of the agreement which was compromised. The case of the appellant was that he had not sold the 'tube‑well machinery' to Rai Saadullah and as such the respondent had failed to make out a prima facie case as to his ownership of the tube‑well. As for the other documents relied on by the respondent it was contended that they bad been `collusively obtained'. In regard to the report dated 25th September 1973, it was urged that it was not the appellant who had lodged it but someone else personated him. The parties, however, agreed to the appointment of a Local Commissioner who visited the site and submitted his report on 19th November 1914 in which he stated that it was the appellant who was in actual possession of the tube‑well. The learned Judge was impressed by the affidavit filed in support of rte contention that the tube‑well was sold by the appellant to Rai Saadullah and the other documents on record and in particular which reflected the claim of Noor Muhammad in the suit filed by him against Muhammad Ramzan and in replication the plea of Muhammad Ramzan that the tubs‑well was in possession of the respondent on the basis of his admission in the report dated 25th September 1973, and accordingly the learned Single Judge was not satisfied with the claim of the appellant as to his possession of the tube‑well. As for the other suit filed by Muhammad Ramzan against the respondent e learned Single Judge held that it was not necessary to refer to it as it was disposed of by compromise. The other reason assigned was that in the face of the plea taken by Muhammad Ramz3‑n in the suit, referred to above, it was not necessary to take it into consideration. The learned Single Judge further repelled the plea of the appellant record in the local Commissioner s report that he was dispossessed just before his arrival at the site as it ran counter to his admission in the report dated 25th September 1973, and the plea taken by Muhammad Ramzan in the aforementioned suit and finally concluded that "the evidence on record from the date of the report i.e. 25‑9‑1973 proves that the petitioner has been in possession of the tube‑well and it was, therefore, a fit case for issuing the temporary injunction". Leave to appeal was granted to consider the following contention: "According to the learned counsel, the question of possession for the purpose of issuing a temporary injunction in favour of the plaintiff had to be decided on the basis of the position obtaining on the date of the institution of the suit, and not with reference to the events which may have subsequently taken place owing to the use of force of exercise of deception by the plaintiff‑respondent." The learned counsel for the appellant repeated his contention in terms of the leave granting order to assail of tae conclusion of the learned Single Judge that it was the respondent who was in possession of the tubs‑well from the date of the report i.e. 25‑9‑1973 and onwards. The learned counsel for the respondent conceded to the principle that the question of possession had to be judged from the situation as it existed on the date of the suit but factually disputed the claim of the appellant in regard to the possession of the tube‑well. The main reliance of the learned Single Judge is on the report dated 25th September 1973, alleged to have been lodged by the appellant and the plea of Muhammad Ramzan in Case No. 347/1 which are of subsequent dates. Therefore, those could not have been regarded as material in judging the plea of possession on the principle stated above. Again even on merits neither the report nor the aforementioned plea could proviso a ground for holding so. There appears to be an interpolation In the Police report dated 25th September, 1973. The learned counsel for the appellant had produced before us a true copy of the report obtained from the Superintendent of Police's Office in which the words ur qabza ker lia are not there. The Single Judge in the High Court as well as the trial Court were influenced by this admission in the report and made it a sheet‑anchor of the finding in regard to possession. The learned counsel for the respondent was to sale to convince us as to the correctness of the photostat copy and we are constrained to hold that the learned Single Judge and the trial Court were clearly misled by it. As for rte plea taken by Muhammad Ramzan in the suit it bad no bearing on the question of possession as the respondent was rapt a party to it and hence could not take the benefit of it. This too was conceded by the learned counsel for the respondent. Adverting now to the local Commissioner's report the learned Single Judge again fell into error in not accepting his conclusion that it was the appellant wry was in possession of the tube‑well. It transpires from the report that the representative of the respondent had no knowledge of the items in the locked room which were correctly disclosed by the servant of the appellant. This factor and the evidence recorded at the site led the local Commissioner to hold to. In our view the local Commissioner had acted correctly to test the veracity of the statements made before him in the context of the contending claims of the patties that they were dispossessed shortly before his arrival. The learned Single Judge had not given proper considera tion to it though it tended to check the credibility of those making the statements. Accordingly no exception could be taken to it. Again the documents dated 7th June 1972, 15th August 1972 and 6th September 1972, on which reliance was placed by the respondent in fact ran counter to the case set up by him. As stated earlier the respondent bad attested the documents showing the appellant's exclusive ownership of the tube‑well in May 1969. If that was so then there was hardly any occasion to bore the land for installing the tube‑well machinery. It was not his case in the pleadings that either the tube‑well machinery was removed or there was need for re-boring. Therefore, his assertion that he had installed it in September 1972, on the basis of the above documents is hardly of any value, more so when theca is no document to support the allegation that the appellant had sold the tube‑well machinery to pat Saadullah from whom he had subsequently purchased it in September, 1972. Again this plea was raised for the first time before learned Single Judge and that too not without a purpose for it was to avoid the effect of the attention of the documents by the respondent acknowledging the appellant's exclusive ownership of the tube‑well. The learned Single judge should not have taken this plea into consideration much less to have given due weight' to the affidavit filed in support of the transaction of sale in reaching the conclusion as he did as to the prima facie ownership of the tube‑well. Accordingly, we are of the view that the learned Single Judge had not exercised his discretion judiciously in favour of the respondent. His finding in regard to possession is thus untenable. We would, however, like to make it clear that what we have expressed in this order is a tentative opinion and the trial Court should proceed to decide the suit on its own view of the matter on the evidence led before it. Accordingly, we would set aside the orders of the learned Single Judge and Civil Judge and restore that of the District Judge dated 26th February 1974, and allow the appeal with costs. Appeal allowed