2002 PLP 777 (SCMR)

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners. Nemo for Respondents Nos. l to 3 and 5 to

7. Shahenshah Hussain, Advocate Supreme Court and A.A. Khan, Advocate‑on‑Record for Respoudent No.4: Date of hearing: 25th April, 2000. RANA BHAGWANDAS, J.‑‑‑Petitioners claiming to be the grantees of 20,000 acres of unsettled barren land by former ruler of Khaipur State in 1935 filed a suit for declaration and injunction against the respondents claiming to be in physical possession thereof on the averments that after the merger of Khairpur State into "one unit" the lands were granted under the "Instrument of Accession" and the Establishment of the West Pakistan Act, 1955. It was the case of the petitioners that in the year 1967 petitioner No.4 namely Syed Hakim Ali Shah received' a notice from the Range Forest Officer, Nara at Kot Diji, alleging that contractor Zaheer Ahmad had complained that he was not‑ allowed to remove Bajri and sand from the desert area granted to him on lease by the Forest Department. Petitioner thereupon approached Deputy Commissioner, Khairpur, explaining their position as to their right, interest and possession to the land and for necessary action against the officers of the Forest Department who, however, rejected their claim on the ground that no boundaries were mentioned in the letter of grant styled. as "Perwand" and entire unsurveyed land had been transferred by the Government to the Forest Department vide Notification dated 7‑1‑1960. Petitioners, therefore, filed a suit in 1971 in which the Forest Department took the position that the disputed property belonged .to them and they were leasing out the area for the purpose of excavation of Bajri and Stone.

2. On the pleadings of the parties trial Court settled as many as eight issues but dismissed the suit as barred by time. Petitioners impugned the judgment and decree in appeal before the District Court which was dismissed with the observations that though the suit was not time‑barred, petitioners had not remained in possession and enjoyment of the property in suit 'and that the property exclusively belonged to the Provincial Government.

3. Petitioners assailed, the judgments of both the Courts below in Civil Revision No.78 of 1998 before the High Court of Sindh, Bench at Sukkur, in which they moved an Application under Order XXXIX, rules 1 and

2. C.P.C. seeking to restrain respondents Nos. (sic) to 4 from inteferring v: all their right, title and possession over the suit land. Upon hearing, learned Judge in Chambers declined the prayer for interim relief for the reason that there were concurrent findings of the two Courts below against the petitioners which disentitled them to the relief sought for. Learned High Court tentatively observed that observation of the Appellate Court with regard to alleged claim of possession over the disputed land were against the petitioners, therefore, no prima facie case for grant of ad, interim relief was made out. It is as against this order that the petitioners seek leave to appeal.

4. Learned Advocate‑on‑Record appearing. in support of petition mainly relied upon the findings of fact recorded by the trial Court with the addition that the issue relating to the suit being barred by time had been decided in their favour by the First Appellate Court. Learned counsel attempted to persuade us to accept the view taken by the trial Court on the question of right, interest, title as well as possession in favour of the petitioners and pass an order of restraint against the respondents, but we are unable to subscribe to this view of the learned Advocate‑on‑Record. Suffice it to say, Appellate Court having found the issues relating to grant of land and actual possession thereof against the petitioners' tentatively. there can be no cavil with the view taken by the learned Judge in the High Court.

5. Learned counsel seriously assailed the claim to the lands by the Forest Department and the grant of licence for land mining and excavation by the relevant agencies but in view of the pendency of civil revision against the impugned judgment of the District Court it would neither be just nor proper to express any opinion for, or against the respondents at this stage.

6. Needless to observe, Pus Court does not ordinarily interfere with the exercise of discretion in an interlocutory matter. Grant of interim relief or otherwise rests solely in the discretion of the Court seized of the matter and unless it is shown that such discretion was exercised arbitrarily or in a perverse manner or against the settled principles of law this Court has always shown reluctance to substitute its view for the view expressed by the High Court. Even otherwise, question of possession being essentially a question of fact depending on various factors and being sub judice before the High Court, it would not be fair and proper for this Court, to make any specific observation.

7. No case for grant of leave is thus made out. Petition for leave to appeal is, therefore, dismissed without prejudice to the rights of the parties to agitate their respective cases before the High Court. S.A.K./W‑27/S Leave refused.