1971 PLP 2 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from an order of a learned Single Judge of the High Court of East Pakistan in an application under section 115 of the Code of Civil Procedure for revising an order of temporary injunction passed by the Munsif, First Court, Kishorganj, in a suit for a permanent injunction. This suit was filed by the respondents herein on the basis of an auction purchase of the suit lands in a rent execution case on 19‑4‑

60. They claimed that the sale certificate was issued in their favour on 21‑12‑60 and they took delivery of possession through Court on 23‑12‑60, on 15 acres of land in the area of Saldha Beel which originally belonged to the Gangatiya Zamindars as superior proprietors. The petitioners, it was alleged in that suit, had threatened to dispossess the respondents. Hence the suit. Along with the plaint in this suit an application was also made for a temporary injunction restraining the petitioners from entering upon the suit land. This application for temporary injunction was opposed by the petitioners who alleged that they had all along been in posses sion of the suit lands as tenants of the original recorded landlords and had subsequently obtained a settlement of the land in their favour from the Custodian of Enemy Property in the middle of January 1969. The foundation of the case of the petitioners, it appears, was a notice dated the 18th November 1968, issued by the Sub Divisional Officer, Kishoreganj, in his capacity as Assistant Custodian of Enemy Property, asking the petitioners to surrender possession of the lands. It was after this notice that they applied for settlement of the land on 31‑12‑

68. This was accepted in the middle of January 1969, but rents were paid in some cases before the acceptance of the proposal and in some cases on 25‑2‑69, after the issuance of the temporary injunction on 11‑2‑

69. Proceedings under section 144 of the Cr. P. C., it appears were also drawn up against the petitioners on the day following the day of the filing of the suit, out of which this petition arises and an ex parte order was obtained restraining the petitioners, from the Magistrate. This order was subsequently set aside by the District and Sessions Judge who also stayed the operation of the injunction issued by the learned Munsif on 12‑3‑

69. The learned Munsif, however, took the view that in the circumstances of this case the respondents had made out their prima facie possession and, therefore, they were entitled to the temporary injunction. This order was upheld in appeal by the Additional District Judge, Second Court, Mymensingh, and the High Court refused to interfere in revision. The petitioners now seek special leave to appeal but we are not satisfied that any case has been made out for interference by this Court. The discretion of the Courts below in granting the temporary injunction appears to have been exercised on sound judicial principles. If the respondents actually obtained possession through Court in pursuance of the auction purchase on 23‑12‑60 and the respondents are still citizens of Pakistan, then it is difficult to appreciate how these properties could be taken possession of by the Custodian of Enemy Property. It is also not without significance that the petitioners themselves applied to the Custodian for settlement of these lands. If they were in fact in possession of the land as tenants, then they would have continued as such tenants under the Custodian. Their tenancy rights could not have been terminated by the Custodian unless he considered them to be in unauthorised possession. This is a fit case which should be tried upon evidence which will no doubt be produced at the trial in the Courts below. This petition is, however, rejected. Petition rejected.