1998 PLP 1977 (CLC)

Date of hearing: 15th June, 1998. This revision petition is directed against the order of the learned District Judge/Zilla Qazi, Malakand at Batkhela, dated 20‑3‑1997 whereby the order of the learned Senior Civil Judge/Alla Illaqa Qazi, Malakand at Batkhela dated 18‑2‑1997 was set aside and temporary injunction was granted to the plaintiff‑respondent till the final disposal of the suit.

2. Facts of the case, in brief, are that Hukam Khan plaintiff‑respondent instituted a suit in the Court of Senior Civil Judge/Alla Illaqa Qazi, Malakand at Batkhela against Alain Sher and others, defendants‑petitioners for declaration and perpetual injunction of the property mentioned in the heading of the plaint. Alongwith the suit an application for temporary injunction was also filed, restraining the defendants‑petitioners not to undertake any type of construction on the disputed land or to alienate the same without his consent.

3. The assertions of the plaintiff are that he had purchased the suit land vide an unregistered deed, dated 15‑9‑1990 from one Muhammad Tahir son of Khan Hidayatullah Khan. This deed is available on the file but has not been exhibited so far.

4. Confronting the assertions of the plaintiff‑respondent, Alam Sher etc., defendants‑petitioners alleged that they had purchased the suit property from Dawa Jan through a Bainama, dated 12‑7‑1987 and ever since they were in possession of the same having planted trees and constructed houses thereupon. Besides, over a portion of the same they had completed the construction work upto D.P.C. level.

5. Having heard the counsel for the parties on the aforesaid application, the learned trial Judge visited the spot without giving notice to both the parties and without the presence of the plaintiff‑respondent observed that the plaintiff respondent had no good prima facie case and the balance of convenience was also not in his favour. He, therefore, dismissed the application of the plaintiff respondent vide his order, dated 18‑2‑1997.

6. Feeling aggrieved of the aforesaid order the plaintiff‑respondent preferred an appeal before the District Judge/Zilla Qazi, Malakand at Batkhela who after hearing counsel for the parties and perusing the record, accepted the appeal and set aside the order of the learned Senior Civil Judge/Alla Illaqa Qazi dated 18‑2‑1997 vide his order dated 20‑3‑1997 and directed the parties to maintain status quo.

7. Being not satisfied with the said order of the learned District Judge, Alam Sher etc. petitioners herein, have preferred the present revision petition before this Court.

8. I have heard the counsel for the parties and perused the record. The learned counsel for the petitioners argued that the learned District Judge/Zilla Qazi has not appreciated the principles and spirits of section 115, C.P.C. in its true perspective and alleged that he has passed an illegal order in excess of his jurisdiction. The learned counsel further contended that the defendants petitioners were within their rights to carry on construction over the suit property as the same had been purchased by them from one Dawa Jan on 12‑7‑1987 through a transfer deed. He next argued that the claim of the plaintiff‑respondent is mainly on receipt of sale‑deed, dated 15‑9‑1990 which is not an authentic document.

9. The record reveals that both the documents placed on the file i.e. document, dated 15‑9‑1990, the alleged sale‑deed in favour of the plaintiff respondent and the document, dated 12‑7‑1987 do not reflect that these documents are in respect of the same property which is the subject‑matter of the present dispute. These two documents do not identify the suit property as the boundaries given in both are not identical and similar. Since the suit is in the initial stages and a correct adjudication cannot be made out on the present available record, therefore, the relief sought for is of temporary nature and the order of the learned District Judge/Zilla Qazi appears to be correct and needs no interference by this Court. I, therefore, dismiss the instant revision petition and direct the Trial Court to dispose of the matter within six months in accordance with law, failing which the status quo ordered by the learned District Judge shall automatically stand vacated. H.B.T./157/P Revision dismissed.