2020 PLP 1875 (MLD)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has called in question order dated 13.09.2018 passed by the trial court, whereby in the suit for declaration, filed by the petitioner, an application for interim relief filed by her has been dismissed and has also called in question the judgment dated 16.07.2019 passed by appellate court, whereby the appeal filed by the petitioner against the said order has also been dismissed.

2. Learned counsel for the petitioner has contended that that both the courts below have not properly appreciated the facts of the case and law on the subject while dismissing application for interim relief filed by the petitioner. Consequently, by setting-aside the said orders, application for grant of interim injunction filed by the petitioner be allowed.

3. The petitioner, who is the third wife of respondent No.1, filed a suit for declaration by contending therein that she is owner in possession of the suit land measuring 32-kanals on the basis of gift deed dated 28.10.2009 executed by respondent No.1 in her favour about two months after her marriage with respondent No.1 that took place on 16.08.2009 and she was put in possession of the said property. Subsequently, it transpired that the same land was transferred by respondent No.1 in favour of respondent No.2 who is his second wife through gift mutation No.I536 dated 17.03.2018 which is inoperative qua the rights of the petitioner as the said land having been previously transferred to the petitioner through afore referred gift deed was no longer available with respondent No.1 for transferring the same to respondent No.2, therefore, she sought cancellation of the said mutation in favour of respondent No.2. Along with the suit, application for grant of interim injunction, seeking restraining order against the respondents to dispossess the petitioner or transfer the land to any other person, was also filed. The said suit as well as application of interim relief were contested by the respondents on the ground that the said property was never transferred to the petitioner by respondent No.1 who also defended the transfer of property in favour of respondent No.2 and sought dismissal of the suit as well as application for interim relief.

4. The petitioner in order to succeed in her application for grant of interim relief was required to show some prima facie case in her favour. Her claim is based on a gift deed allegedly executed between the parties which has never been produced before any competent authority for the purpose of transferring the property in favour of the petitioner and the genuineness of the said deed is required to be established by recording evidence, whereas respondent No.2 has been transferred the suit land through mutation No.1536 in the revenue record on 17.03.2018. It is established by now that where a document, on the basis of which a party claims relief is required to be established by recording of evidence, prima facie case cannot be presumed. Thus the petitioner has not been able to establish any prima facie case in her favour. Besides balance of convenience is also not in favour of the petitioner as her claim is based on unregistered document against the claim of respondent No.1 who was previous owner and respondent No.2 who claims to be the owner through aforesaid transfer mutation. Moreover, the petitioner has not been able to establish how she would suffer irreparable loss in case stay is not granted. Besides the petitioner is protected by the principle of lis pendens. Consequently, the petitioner has failed to make out any case for grant of interim injunction in her favour and both the courts below were justified to dismiss the stay application which findings being well-founded require no interference.

5. For what has been discussed above, this constitutional petition being devoid of any merit is dismissed. However, the learned trial court shall decide the main case on its own merits, uninfluenced by any of the afore referred observations. SA/R-3/L Petition dismissed.