2017 PLP 1468 (MLD)

MUHAMMAD ALAM, J.

Through this civil revision petition, petitioners/plaintiffs have challenged order dated 05-07-2014, passed by the learned trial court and order dated 29-11-2014 of the learned first appellate court.

2. Petitioners filed suit (Civil Suit No.65/2014) in the trial court and also filed a petition under Order XXXIX Rules 1 and 2, C.P.C., whereby, petitioners sought a temporary injunction till disposal of the suit. Learned trial court passed the following order on the petition for temporary injunction:-- "I am of the opinion that no party can claim an injunction as a matter of right and the power of the court to grant an injunction is totally discretionary in nature. The purpose of granting injunction is to maintain status quo of the matter in dispute and plaintiff must have to bring all the three ingredients of Order XXXIX Rules 1 and 2 into motion at once. In this instant matter plaintiff has failed to make out a prima facie case for injunction. Even if a prima facie case exists, no irreparable loss and balance of inconvenience is in favour of defendants Nos.2 and

3. Hence application under Order XXXIX, Rules 1 and 2, C.P.C. stands dismissed. The above observations are based on tentative assessment and will not affect the decision of suit on merit." Feeling aggrieved from the same, petitioners/plaintiffs filed appeal (C.F.A. No.72/2014), in the District Court, who, through his order dated 29-11-2014, dismissed the appeal. Learned District Court passed the following order:-- "In view of above appeal along with application under Order XXXIX, Rules 1 and 2, C.P.C. filed with the appeal by the appellant both being devoid of merit are hereby dismissed. Ad-interim injunction issued in this appeal resultantly stands vacated. Record of learned trial court be returned to them for their further proceedings and this file after due completion be consigned to record."

3. I have heard learned counsel for parties and have gone through the material available on file with the assistance of the counsel for parties. Learned counsel for petitioners argued that the case of petitioners is based on their right to the suit property on the basis of inheritance. In the opinion of the counsel for petitioners, suit property devolved on the petitioners/plaintiffs from their forefathers. Learned counsel for petitioners relied on documentary evidence that petitioners have filed with the plaint. On the other hand, learned counsel for respondents argued that the documents filed by the petitioners/plaintiffs are now obsolete as various changes have come in the settlement system. Learned counsel for respondents was of the opinion that change in the revenue record is a process and in the said process we see a different record from the record that petitioners have submitted in the case file. From the dates of the revenue papers filed by the petitioners/plaintiffs, long time has been passed, and presently, there is quite different settlement record wherein names of the petitioners/plaintiffs did not appear.

4. I have considered arguments of the learned counsel for parties. At this stage of the case, court is just to assess the prima facie value of available evidence of parties. Parties have filed pleadings and from joint perusal of averments of plaint and the parawise written statement, it is evident that the suit is based on a right of inheritance of the petitioners/plaintiffs to the suit property. On the other hand, parawise written statement of paras Nos.1 to 3 of the written statement, it is evident that the respondents Nos.1 and 2 are drawing their title from respondent No.3. So, the main question for determination is title of respondent No.3 to the suit land. In this connection, we will have to compare the two rival claims of petitioners/plaintiffs and the respondent No.3. It is very important to note that sale of suit land to respondents Nos.1 and 2 by respondent No.3 is not disputed. Record available on file prima facie shows that the suit land is khudkasht and it is not clear that how respondent No.3 became owner of the suit land. On the other hand, there is prima facie documentary evidence showing better title of petitioners/plaintiffs to the suit land. As the record shows that suit land is Khudkasht, thereofre, the claim of respondent No.4 who is Provincial Government of G.B., also attains very importance. In the above circumstances, there are three claimants to the suit land, first, petitioners/plaintiffs, second, respondent No.3 and third, the respondent No.4. Trial court is yet to determine title of the above three persons to the suit land. Yet another very important aspect of the case is that while granting temporary injunctions, courts are supposed to maintain the status quo of suit property to avoid multiplicity of litigation.

5. In the above circumstances, I feel that both the learned two courts below have failed to appreciate the correct import of evidence available on record and have come to an incorrect and erroneous conclusion, which is a material irregularity in the orders of the said two courts. In the case in hand, petitioners/plaintiffs have sought maintaining of status-quo of suit property till final disposal of the suit. Learned trial court is yet to determine whether suit land is ownership of contesting parties to the suit land or the same is ownership of respondent No.4, the Provincial Government of G.B. The aim of temporary injunction is to maintain the status quo of suit property. At this stage of the case, on the basis of tentative assessment of evidence of parties, I hold that petitioners/plaintiffs have a good prima facie case and aim of temporary injunction is to maintain the status quo of suit property, which also goes in favour of grant of temporary injunction prayed for.

6. I, therefore, allow this petition, set aside order dated 19-11-2014 of the District Court and order dated 05-07-2014 of the Civil Court. Respondents Nos. 1 to 4 are directed to maintain status-quo of suit property till final disposal of the suit. Petition is allowed. This file be consigned to record. ZC/79/GB Revision allowed.