1987 PLP 3057 (MLD)

Ch. Muhammad Anwar Khan for Respondent No.

3. Date of hearing: 19th October, 1987. This Civil Revision arises out of an application made by the petitioners on 27.3.1986 in a suit for a declaration to the effect that the disputed land had wrongly been proposed to the contesting respondents and the petitioners were entitled to the same under Section 21(2) of the Thal Development Act, 1949. In the application a temporary injunction was sought for restraining the contesting respondents from interfering with the physical possession of the petitioners.

2. The application was opposed by the other party. The learned Civil Judge 1st Class, Bhakkar dismissed the same from which an appeal was filed by the petitioners which came to be decided by the learned Additional District Judge, Bhakkar. The learned Additional District Judge, Bhakkar, dismissed the appeal on 12.5.1987 by holding that the petitioners had no prima facie case. As to the position of the contesting respondents, however, he observed that they had not filed any suit for possession of the property.

3. The present revision petition questioning the validity of the judgment of the learned Additional District Judge Bhakkar was admitted wherein the learned counsel had maintained that the land was under their cultivation at the time of acquisition but the source of irrigation was barani as such was not covered by law under which such a land could be acquired. therefore, the benefit of law could not be withheld. In support of this the learned counsel for the petitioners relied upon Hakim Abdur Rahim Khan and others v. West Pakistan Government through the Secretary, Resettlement and Claims, Lahore and another (P L D 1986 SC 96).

4. Today the learned counsel for the contesting respondents has submitted that in this case the status quo was ordered to be maintained by this court on 16-6-1987 while-the physical possession was given to the contesting respondents on 24.5.1987 under an order dated 18.5.1987 passed by the EACO and the possession was delivered to the contesting respondents by the aid of the Police and in this behalf the learned counsel has referred to the report made by the Police as well as the Revenue Officer.

5. The learned counsel for the petitioners has otherwise maintained that the petitioners are yet in physical possession of the land and the proceedings as to the delivery of the possession to the contesting respondents is only a paper proceeding. The learned counsel for the petitioners has also made an application for the appointment of a Local Commissioner so as to ascertain the actual position obtaining as to the possession

6. In view of the submissions of both the learned counsel it is difficult to credit any of the parties with a positive merit, therefore, after setting aside the order of the learned Trial Court dated 22.3.1987 as well as the order of the learned Additional District Judge, Bhakka dated 12.5.1987, the learned Trial Court is directed to go into the fact as to the position of the possession and may, in that regard, appoint a Local Commissioner as agreed to by both the parties to ascertain the actual position of the possession and then to decide the application for the interim relief. If it is found out that the contesting respondents are in possession after the said order, then the application of the petitioners is to be dismissed. This Civil Revision is disposed of without any order as to costs. H . B. T . /M-432/L Order Accordingly.