2000 PLP 1147 (MLD)

Petitioners‑plaintiffs have assailed the finding of District Judge, Khushab, dated 22‑10‑1998 wherein the appeal of respondents‑defendants was accepted and the injunction granted by the Civil Judge, Noorpur District Khushab, dated 21‑7‑1996 on the application of the petitioner under Order 39, Rules 1 and 2, C.P.C. was recalled.

2. Briefly the facts of the case are that the petitioners‑plaintiffs filed a suit for declaration asserting that the house and land which formed the subject‑matter of the suit belonged to Haji Muhammad Bakhsh, who used to live with the plaintiffs‑petitioners and they served and looked after him. The deceased Haji Muhammad Bakhsh had no issue. Haji Muhammad Bakhsh in his lifetime through a will, dated 25‑5‑1995 bequeathed 1/3rd of the suit property in their favour in lieu of service rendered to him. Respondent wanted to get the whole of the property mutated in their name in which they had no right. It was 'further contended in the plaint that the plaintiffs /petitioners produced the will before the revenue authorities but were given the reply to get it authenticated by the decree of a Civil Court. Hence the suit was filed.

3. Alongwith the suit, an application under Order 39, Rules 1 and 2, C.P.C. was also filed claiming injunction on the ground that if the respondents get the suit property mutated in their name and further sell the same, it would create complications.

4. Respondents in their written statement took preliminary objection that the will is a forged document and the owner Haji Muhammad Bakhsh did not execute the same.

5. The Civil Judge, as noted above, granted ‑the injunction on the ground that if the alienation is not restrained, it might create complications if the respondents sell the property.

6. District Judge, Khushab vide judgment, dated 22‑10‑1998 accepted the appeal of the respondents and recalled the order of injunction earlier granted by the Civil Judge.

7. Learned counsel addressing arguments before me admitted that there is no doubt that the registration of a will under the law is not mandatory but to add authenticity to the same it was desirable that the same should have been got registered. On the other hand, Ahmed Bakhsh and Mst. Bakhtaan, respondents are brother and sister of Haji Muhammad Bakhsh, deceased, who admittedly died issueless. The respondents, therefore, are the only heirs of Haji Muhammad Bakhsh. On the other hand, petitioners/plaintiffs state that Haji Muhammad Bakhsh was their uncle and claimed 1/3rd share in the property on the basis of will, the execution of which has been denied by the respondents on the ground that the same is a forged document.

8. Needless to add, it is now a well‑known proposition of law, that in order to succeed for the grant of injunction three ingredients must exist viz prima facie case, likelihood of suffering irreparable loss and balance of convenience in favour of the plaintiffs‑petitioners.

9. In the present case I am afraid the petitioners has not been enable to prove a prima facie case in their favour. The will has yet to be proved. and till that is done a clog cannot be placed on the rights of the respondents, who are admittedly heirs of the deceased Haji Muhammad Bakhsh, to get the property mutated in their names as being the only heirs of the deceased. Learned counsel for the petitioners has not addressed me on the powers of the Civil Court to restrain the Revenue Officer, from attesting mutation under section 42 of the Land Revenue Act, 1967. On the other hand the fear and apprehension of the petitioners stands allayed by the doctrine of lis pendens. If subsequently it is found out that the will is genuine, the suit will be decided and any alienation made during the pendency of the litigation will be looked after by this doctrine. I, therefore, do not find any fault with the order of District Judge, Khushab, dated 22‑10‑1998.

10. Resultantly, this revision petition having no merit is accordingly dismissed. H.B.T./M‑114/L Revision dismissed.