2010 PLP 2790 (YLR)

HAFIZ ABDUL REHMAN ANSARI, J.

Petitioners Zia-ur-Rehman and Najeeb-ur-Rehman, both sons of Mansabdar Khan assail the orders, dated 31-10-2009 and 15-1-2010. Through the former order the learned Civil Judge, Burewala, dismissed the application of the petitioners filed under Order XXXIX, rules 1 and 2, C.P.C. in a suit for declaration, whereas through the latter order the appeal filed by the petitioners against the order of the learned Civil Judge was dismissed by the learned Additional District Judge, Burewala.

2. The petitioners brought a suit against the respondents for declaration to the effect that they (petitioners) are owners of the land measuring 29 Kanal and 13 Marlas in Khewat No.21/22, situate in Chak No.243/EB Burewala, and the defendants-respondents have no connection whatsoever with the said land and that the gift mutation No.717 dated 31-3-2009 is against law and facts; that they were residing in England therefore they appointed respondent-defendant No.1 as their general attorney through general power of attorney No.210/04 and asked him to sell out the suit-land but he illegally gifted the said property to his brother respondent No.2 through the above said gift mutation. Along with the suit the petitioner filed an application under Order XXXIX, rules 1 and 2, C.P.C. for grant of temporary injunction to the effect that till the final decision of the suit the suit-land be not alienated. The said application was contested by the respondents by filing a reply thereto.

3. Learned counsel for the petitioners contends that both the courts below committed material illegality in dismissing the application of the petitioners under Order XXXIX, rules 1 and 2, C.P.C. Further contended that the orders passed by the two Courts below are based on conjectures, misreading and non-reading of the record. Further contended that the plaintiffs-petitioners are in possession of the disputed property.

4. Conversely, the learned counsel for the respondents-defendants contended that the claim of the petitioners that they are in possession of the disputed land is incorrect, rather the respondents are in possession of the land in dispute. Both the courts below have given definite finding that the petitioners-plaintiffs are not in possession of the suit-land and on this ground the application of the petitioners for temporary injunction was dismissed by the trial Court as well as by the first appellate court dismissed the appeal of the petitioners.

5. I have heard the learned counsel for the parties and perused the file. The learned trial Court vide order dated 31-10-2009 dismissed the application of the petitioners for temporary injunction by holding that the petitioners-plaintiffs have no good arguable case against the respondents and that they would not face any inconvenience and irreparable loss as they themselves had given the general power of attorney to respondent No.1 to deal with the suit-land. The appeal of the petitioners filed against the order was also dismissed by the learned Additional District Judge vide order dated 15-1-2010 by observing that: "Since admittedly the appellants/ plaintiffs are residing in England consequently they have no physical possession over suit-land. Moreover, respondent No.2 has also produced copies of Khasra girdawri showing the fact that the suit-land is being cultivated by a person namely Muhammad Mansha who is tenant under alleged ownership of respondent No.2 Thus under the given circumstances when appellants/ plaintiffs have failed to establish their possession over the suit-property even prima facie or through any specific PATADAR, it is evident like anything that the learned trial Court has rightly dismissed the petition for grant of temporary injunction."

6. Application of the petitioners for temporary injunction has rightly been dismissed by the learned trial Court with cogent reasons. Their appeal against the said order of the learned Civil Judge has also rightly been dismissed. No misreading or non-reading of the record has been committed by both the courts below. When there are concurrent findings with regard to facts and law, unless there is jurisdictional defect in the orders passed by the two courts below, the High Court cannot interfere in the said concurrent findings in exercise of power under section 115, C.P.C. There is no jurisdictional defect also in the orders of both the Courts below.

7. For the reasons discussed above, I find no force in the civil revision, which is dismissed with no order as to costs. A.R.K./Z-30/L Revision dismissed.