2010 PLP 939 (CLC)

HAFIZ ABDUL REHMAN ANSARI, J.

Allah Ditta son of Allah Bakhsh and 5 others through the instant Civil Revision under section 115, C.P.C, call in question the order dated 15-12-2009, passed by the learned Additional District Judge, Jatoi, dismissing the appeal filed by the petitioners against the order dated 1-6-2009 of the learned Civil Judge Ist Class, Jatoi whereby he had accepted the application of the plaintiff-respondent seeking temporary injunction filed in a suit for permanent injunction.

2. Facts in brief leading to the filing of the present civil revision are that respondents Muhammad Shafi etc., filed a civil suit for permanent injunction to the effect that the plaintiffs-respondents are owners in possession of three shops on land measuring 10-Marlas, situated in Khasra No.65/17/3 through mutations Nos.2289 and 2234, in Mauza Dakhhli Jhalaren, Tehsil Jatoi, District Muzaffargarh, as described in the head-note of the plaint and that the defendants-petitioners are intending to get the possession of the said property illegally and forcibly without partition. Along with the suit an application under Order XXXIX Rules 1 and 2, C.P.C. was also filed praying that the defendants-petitioners be restrained from interfering in the possession of the plaintiffs-respondents. The defendants-petitioners filed their written statement, wherein preliminary objections were taken that the shops are in ownership of defendants-petitioners, the meter at the spot was installed in their name; the shops which are two in number were in the ownership of respondent No.1 Allah Ditta who sold out these two shops through mutation No.6691 dated 29-10-2007 to defendants Nos.4 and 5 for valuable consideration of Rs.2 lacs. The defendants-petitioners also filed reply to the application for temporary injunction.

3. It is pertinent to note that to know the veracity of the facts a local commission was also appointed by the trial Court for site-inspection and to submit a report. The local commission on 20-4-2009 filed its report before the trial Court. The learned trial Court vide order dated 1-6-2009 allowed the temporary injunction accepting the application under Order XXXIX Rules 1 and 2, C.P.C. and ordered the parties to maintain status quo till the decision of the suit. However, the learned trial Court observed that the instant injunctive order would not affect any proceedings of partition conducted by the competent forum. The present petitioners filed an appeal assailing the order dated 1-6-2009 passed by the learned trial Court before the learned Additional District Judge, who vide judgment dated 15-12-2009 dismissed the said appeal.

4. The learned counsel for the petitioners submitted that the petitioners are in possession of two shops on the site, which fact is also supported by the report of the local commission appointed by the learned trial Court. Further contended that the shops were owned by the defendant No.1 who sold out through mutation No.6691 to defendants Nos. 4 and 5 for consideration of Rs. 2 lacs and defendant No.1 had handed over the possession of the shops to the defendants Nos.5 and 6 but later on the plaintiffs got possession upon the shops.

5. I have heard the learned counsel for the petitioners at length. The learned trial Court as well as the lower appellate Court both have observed in their respective orders that the plaintiffs-respondents and the petitioners are admittedly co-sharers and owners in the impugned Khata No.57 of Mauza Jhalaren. The fact of possession of the suit property by the plaintiffs-respondents is admitted by the defendants-petitioners irrespective of the fact whether the same was legal or illegal or the plaintiffs-respondents have obtained the possession of the suit-land forcibly. Report of the local commission to the extent of possession upon the suit property/shops also supported the version of the plaintiff-petitioners as it is observed in the said report of the local commission that:-

6. The learned trial Court rightly allowed the application for temporary injunction and the learned Additional District Judge in appeal vide order dated 15-12-2009 upheld the order of the trial Court giving cogent reasons. Possession of the plaintiffs is admitted on the suit property. Whether the plaintiffs are in possession of the suit property by illegal means or on the basis of the ownership it would be decided after recording of the evidence. The learned Additional District Judge observed that during the pendency of the suit the learned trial Court appointed a local commission who submitted report that the plaintiffs are in possession of the suit property at the spot. The fact of possession was admitted by the petitioners-defendants. Both the orders passed by the courts below are based on convincing, rational and cogent reasons. Learned counsel for the petitioners failed to point out any illegality or irregularity. In the impugned orders basic ingredient for grant of temporary injunction, i.e. possession of the plaintiffs is admitted on the site. Even they are owners in joint Khata which is yet to be partitioned, which fact establishes their prima facie case. If the application was dismissed and if the temporary injunction was refused and order for maintaining the status quo was not passed by the trial Court the apprehension was very much there that the defendants could create inconvenience by selling joint property in the hands of others.

7. In the light of above discussion, I do not like to interfere in the orders impugned in this petition, which is dismissed in limine. M.H./A-52/L?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.