2018 PLP 8 (YLRN)

SYED MUHAMMAD ATTIQUE SHAH, J.

The instant revision petition under section 115 of Civil Procedure Code, 1908 is directed against the judgment and order dated 06.04.2017 of learned Additional District Judge-I, Mansehra, whereby, appeal filed by the petitioner/ plaintiff against the judgment and order dated 19.01.2017 of Civil Judge-V, Mansehra, was dismissed.

2. The brief and essential facts leading to institution of the instant revision petition are that the petitioner/plaintiff instituted a suit for permanent cum mandatory injunction against the respondents/defendants to the effect that they be restrained from taking forcible possession of the property, fully described in the heading of the plaint, situated in Mauza Lachi Mang, Tehsil and District Mansehra, making construction thereon, alienating it to any person in any manner whatsoever, changing its nature, cutting standing trees therein, interfering in the share of the petitioner/plaintiff or any act affecting his rights, with prayer for possession of the property by demolition of construction and removal of debris therefrom, in case respondents/defendants could succeed in making construction during pendency of the suit or possession thereof went out of the hands of plaintiff/petitioner. The petitioner/ plaintiff has also moved application for temporary injunction along with the suit praying for maintenance of status-quo.

3. The suit as well as the application for temporary injunction was contested by the defendants/respondents Nos.1 to 3, 5,8, 10 to 17, 19 to 22, 25 to 28 and 18/1 by filing their written statement and reply to the application for temporary injunction. In their written statement, the respondents have categorically taken the stance that the petitioner/plaintiff from time to time has disposed of/alienated property from his shares. They have further stated that the proceedings of partition are pending before competent forum in which the present petitioner/plaintiff is regularly participating.

4. The learned trial Court/Civil Judge-V, Mansehra, after hearing the learned counsel for the parties, dismissed the application of the plaintiff/petitioner for temporary injunction vide judgment and order dated 19.01.2017.

5. Aggrieved thereof, the present petitioner filed Civil Misc. Appeal No.2/14 of 2017 on 23.01.2017 before the learned Appellate Court/Additional District Judge-I, Mansehra, which was also dismissed vide the impugned judgment and order dated 06.04.2017. Hence, this revision petition.

6. Valuable arguments of the learned counsel for the petitioner heard and the available record of the case thoroughly gone through.

7. Admittedly, the parties are co-sharers in the joint Khata regarding which partition proceedings are pending before the competent revenue forum. It is also visible from the record that the petitioner/ plaintiff has sold his shares in khasra Nos. 684, 682 and

886. Moreover, during the arguments, learned counsel for the petitioner/plaintiff candidly admitted this fact of the pendency of partition proceedings as well as alienation of certain portion of property from his share in the disputed property from time to time. However, all these facts have not been mentioned by the plaintiff in his plaint rather the same has been concealed by him from the Court. Thus, the petitioner/plaintiff has not approached the trial Court with clean hands as he has deliberately concealed the factum of his alienation of property as well as pendency of partition proceedings before competent forum in which he is regularly participating. The petitioner/plaintiff in such eventuality and circumstances cannot ask for restrainment of the respondents/ defendants from alienating their share in the suit property. In peculiar facts and circumstances of the present case, the petitioner has no prima facie case, balance of convenience is also not in his favour and he is not likely to suffer any irreparable loss, as in the partition proceedings each co-sharer in the joint property will get his due share in accordance with his entitlement. From the available facts and circumstances of the present case, this Court reached to the conclusion that both the Courts below have correctly appreciated the material available before them in the light of settled principles for grant of temporary injunction in the matter of joint property. Learned counsel for the petitioner could not point out any illegality or material irregularity in the concurrent findings of the two Courts below warranting interference by this Court in exercise of its revisional jurisdiction.

8. Accordingly, the instant revision petition being bereft of legal merit is dismissed in limine. ZC/183/P Revision dismissed.