2004 PLP 340 (YLR)

Ss.12, 42 & 54

Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1, 2 & 5.115

Suit for possession, declaration and perpetual injunction

Temporary injunction, grant of

Plaintiffs, alongwith the plaint had moved application for grant of temporary injunction which was allowed but same was dismissed in appeal-- Validity

Question which required determination in the suit was whether plaintiffs had rightful claim qua the suit property as legal heirs of the deceased owner and such question was answered by the Trial Court after recording evidence-- Prima facie plaintiffs were descendants of deceased owner as pedigree-table duly prepared by Patwari Halqa placed on record supported such claim of the plaintiffs

If the suit property was alienated or its shape was changed or trees standing thereon cut down, plaintiffs would have to bear irreparable loss and they would be involved in multifarious litigation, but Appellate Court had failed to appreciate such position

Order passed by Appellate Court was set aside by High Court in revision whereas order granting temporary injunction to plaintiffs passed by Trial Court was restored. Khalid Mehmood for Petitioners. Muhammad Iqbal Khan for Respondents. Date of hearing: 17th October, 2003. The petitioners/plaintiffs filed suit for declaration, perpetual injunction and possession with regard to the property mentioned in the heading of the plaint in the Court of learned Civil Judge, Mardan. Alongwith the plaint, an application for grant of temporary injunction restraining the respondents/defendants to alienate or interfere with the same or to cut the trees standing thereon till the decision of the suit was also moved. The suit as well as application was resisted by the respondents/ defendants by filing written statement. The learned trial Court after hearing the learned counsel for the parties allowed the application for grant of temporary injunction vide its judgment/order dated. 4-2-2003. Feeling aggrieved with the said judgment/order, the respondents filed Appeal No.15/14 in the Court of learned Additional. District Judge, Mardan, which was allowed vide judgment/order dated 7-7-2003. The restraining order passed by the learned trial Court was set aside. Being not contented with the judgment/ order of the learned Appellate Court the petitioners have filed the revision petition in hand.

2. Mr. Khalid Mehmood, Advocate the learned counsel for the petitioners argued that the parties were descendants of Daraz Khan and all of them had inherited according to their Shari share in the property left by Daraz Khan. The names of the petitioners were not entered in the Revenue Record, but they were in possession of their respective share. They cannot be deprived of their property only on the ground that their names do not find mention in the Revenue Record. The learned trial Court had properly appreciated the legal position, but the learned Appellate Court failed to appreciate the same.

3. On the other hand Mr. Muhammad Iqbal Khan, Advocate the learned counsel representing respondents Nos. 1 to 3 and 11 to 27 argued that the petitioners have no case at all. They have failed to show that they were the descendants of Daraz Khan deceased. Not only the names of the predecessor of respondents appeared in the Revenue Record since 1870 but they were in possession of the same also. The presumption of truth is attached to the Record of Rights and the respondents cannot be restrained to utilize or to dispose of their own property. The judgment/order passed by the learned Appellate Court, it was argued, was proper, hence needs no interference by this Court.

4. After hearing the learned counsel for the parties and perusal of the record I admit the revision petition to regular hearing and as per request of the learned counsel for the parties I proceed to decide the same on merits.

5. The petitioners have annexed with the revision petition pedigree-table duly prepared by Patwari Halqa. The petitioners/ plaintiffs claimed to be the L.Rs. of Nasir Khan whose name appears in the pedigree -table. No doubt the names of the predecessors of the petitioners/plaintiffs were not entered in the Revenue Record, but that fact alone cannot deprive them of their ownership right, which they have inherited from their predecessors, It is by now settled that in cases which involved inheritance inter se among the legal heirs, Court should make efforts to ensure that no legal heir is denied of his legal share in the estate of the deceased concerned on a technical ground.

6. The question that requires determination in the suit filed by the petitioners/plaintiffs is as to whether the petitioners/plaintiffs have rightful claim qua the disputed property as legal heirs of Daraz Khan deceased. The said question would be answered by the learned trial Court after recording evidence. Prima facie the petitioners are the descendants of Daraz Khan. The pedigree-table duly prepared by Patwari Halqa placed on file lends support to the case of petitioners. If the property in dispute is alienated or its shape is changed or the trees standing thereon are cut down, the petitioners/plaintiffs shall have to bear irreparable loss and they shall have to be involved in multifarious litigation. The learned Appellate Court failed to appreciate the said position. I, therefore, flow the revision petition in hand, set aside the judgment and order passed by the learned Appellate Court dated 7-7-2003 and restore that of the learned trial Court dated 4-2-2003. There shall be no orders as to costs. H.B.T./971/P Revision allowed.