1999 PLP 964 (CLC)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ A suit was filed by the appellants, herein, seeking declaration that the sale‑deed executed in favour of respondent No.2 be declared null and void as the land transferred was attached with the Jamia Masjid, Rara; there was also a prayer for granting perpetual injunction against the respondents and in alternative, a decree of possession with possession of right of prior purchase was also sought. An application for stay order for maintaining status quo was made which was granted by the trial Court in the first instance but subsequently, the stay order was vacated. An appeal was preferred to the District Judge who accepted the same and issued a stay order against the defendants restraining them from raising any construction over the disputed land. The respondents went up in revision before the High Court against the order of the first appellate Court. The revision petition was accepted observing that as the balance of convenience was in favour of the defendants, they could not be restrained from raising construction over the land in dispute. However, it was observed by the High Court that any construction made by the respondents would be at their own risk. This appeal, by leave, has' been preferred against the order of the High Court whereby the interim relief was refused to the appellants.

2. We have heard the arguments and gone through the file. It has been argued by Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellants, that the High Court has committed an error in vacating the stay order, inter alia, on the ground that the same was not sustainable because the suit was not violative of the provisions contained in Rule 8 of Order 1, C.P.C. The learned counsel has argued that even if it is assumed that there was any violation of the aforesaid provision of law the same could be rectified at any stage and relief could not be refused to the appellants. The learned counsel has also cited some. authorities in support of his contention. The learned counsel has further argued that in fact the land over which the construction was being raised by the respondents was the part of the land of one Kanal which was donated for the construction of mosque. He has argued that the plaintiffs have no grouse against the respondents with regard to the land which was purchased by them but they made enroachment over the land which was donated for the construction of the mosque.

3. In reply, Mr. Muhammad Yaqoob Mughal, Advocate, the learned counsel for the respondents, has argued that it was not the case of the appellants that the respondents trespassed into the land of one Kanal which was donated for the construction of the mosque. He has argued that the total area of the relevant survey number, as has been held by the High Court, was 2 Kanals and 12 Marlas, out of which land measuring one Kanal was donated for the construction of the mosque and out of remaining piece of land one Kanal and 12 Marlas, a sale‑deed of land measuring one Kanal, was, executed in favour of the respondents. Thus, according to the learned counsel for the respondents, the plaintiffs have no case for depriving the respondents from raising construction over the land which they had purchased.

4. We have given our due consideration to the matter. So far as the violation of Order 1, Rule 8, C.P.C. is concerned, it may be stated here that we leave that matter open for resolution by the trial Court, if any such occasion arises. The finding of the High Court on the said point would be deemed non?existent. However, it may be stated that it is not denied that the total area of the relevant survey number, in which the mosque is situated, is 2 Kanals and 12 Marlas out of which only one Kanal has been purchased by the respondents. The perusal of the plaint does not reveal that the grievance of the plaintiffs‑appellants is that the respondents made encroachment over the land measuring 1 Kanal, which was donated for the construction of the mosque. If they make any such case at the trial, it is to be resolved one way or the other by the trial Court after framing the issues. However, taking into consideration the principles, i.e. (i) prima facie case, (ii) balance of convenience, and (iii) injury likely to be caused to the defendants if the stay order is issued, we are of the view that the order of the High Court does not suffer from any infirmity, especially so when it has been specifically laid down by the High Court that the respondents would raise construction over the disputed land at their own risk, which implies that if the suit is decided against them, they would not be entitled to any compensation. In view of what has been stated above, finding no force in this appeal. it is hereby dismissed with no order as to the costs. Q.M.H./M.A.K./312/SC(AJ&K)???????? Appeal dismissed. 1999 C L C 967