2014 PLP 1710 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

This revision petition has been filed against the order passed by the learned Additional District Judge, Hajira on 11-5-2012 and that of the Civil Judge, Hajira dated 2-4-2012 whereby an application for issuance of temporary injunction filed by the petitioners was rejected. Precise facts of the case are that Muhammad Shafique and others, petitioners, herein, moved an application under section 12(2) C.P.C. in the Court of Civil Judge, Hajira on 16-10-2009, stating therein that petitioners and pro forma respondents are co-sharers in the suit-land. Alongwith the application, an application for grant of temporary injunction was also made. The learned Civil Judge, Hajira rejected the application for interim injunction vide order dated 8-6-2010. Feeling aggrieved from the aforesaid order, Muhammad Shafique and others filed an appeal before the learned Additional District Judge, Hajira. The learned Additional District Judge accepted the appeal and granted the interim injunction for a period of 6 months or till decision of the case whichever occurs earlier. Respondents filed revision petition before this Court for setting aside the order passed by the learned Additional District Judge, which was dismissed as being infructuous vide order dated 13-1-2012 on the ground that the period of 6 months had already elapsed. Thereafter, the petitioners moved another application before the learned Civil Judge, Hajira, which was dismissed vide order dated 2-4-2012. Appeal filed against the said order also met the same fate vide order dated 11-5-2012. The petitioners felt aggrieved from the aforesaid orders filed the instant revision petition. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel appearing for the petitioners vehemently argued that the trial Court rejected the application of the petitioners while taking wrong impression of the order of the High Court dated 13-1-2012. He argued that in the first instance, the 1st Appellate Court issued interim injunction against the respondents taking into consideration the pleadings of the parties and keeping in mind the elements of the prima facie case, balance of convenience and irreparable loss for a period of 06 months. The respondents approached the High Court for cancellation of the same. The revision petition of the respondents was disposed of by this Court on the ground that the interim injunction was issued for a period of 6 months and during pendency of the petition 6 months period had expired. He further argued that there is no bar to file a fresh application for temporary injunction, hence, both the Courts below fell in error for not exercising the discretion in favour of the petitioners and have acted illegally. Conversely, Mr. Mushtaq Ahmed Janjua, the learned counsel appearing for the respondents, has defended both the orders of the Courts below and submitted that temporary injunction was not issued keeping in view the pleadings of the parties and provisions of sections 91 and 12(2) of the C.P.C. He further argued that the suit of the respondents for adverse possession was rightly decreed by the trial Court on 20-2-1997 and the petitioners have no cause of action and locus standi for challenging the impugned decree. I have heard the learned counsel for the parties and gone through the record of the case. While perusing the impugned order of the learned Additional District Judge, Hajira, it transpired that the decree for adverse possession has been passed in favour of respondents on 20-2-1997 pertaining to State/crown land and Shamilat Deh land, situated in village Kailote Tehsil Hajira District Poonch. It is pertinent to note that law of adverse possession was not on the statute on 20-2-1997 rather it was omitted in 1996 vide Ordinance LIV of 1996 and then by amending Act IV of 1997 which is reproduced hereunder for convenience sake:-- "

1. Short title and commencement:

(1) This Act may be called the Limitation (Amendment) Act, 1997. (2) It shall come into force at once.

2. Omission of section 28, Act IX of 1908:

In the Limitation Act, 1908 (Act IX of 1908), hereinafter referred to as the said Act, section 28 shall be omitted.

3. Omission of Article 144, of the First Schedule, Act IX of 1908:- In the said Act, in the First Schedule, Article 144 shall be omitted. Repeal: The Limitation (Amend-ment) Ordinance, 1996 (Ordinance LIV of 1996) is hereby repealed." It transpires from the impugned order that the learned Additional District Judge has discussed all the merits of the case and has expressed almost his final opinion, which is not permissible at this stage. It is also pertinent to note that the impugned judgment and decree dated 20-2-1997 passed in favour of the respondents pertaining to the State land and Shamilat Deh. This Court as well as the apex Court has laid down the principle regarding the declaratory decrees of crown land/Shamilat land etc. which have been reported in (2010 SCR 102), (2008 SCR 207) and many other case-law. Keeping in view, the above legal position it is felt advised not to discuss or express any opinion about the merits of the impugned judgment/decree of the trial Court or on the merit of the application of the petitioners under section 12(2) of Civil Procedure Code pending adjudication before the trial Court, as it may prejudice the case either of the parties. However, in the circumstances of the case the issuance of temporary injunction is justified. In view of what has been stated above the instant revision petition is accepted, the impugned orders of Additional District Judge, Hajira dated 11-5-2012 and that of Civil Judge, Hajira, dated 2-4-2013 are hereby set aside and temporary injunction is issued to maintain status quo for a period of 6 months as prayed for by the petitioners. The trial Court is directed to dispose of the case within 6 months positively with an intimation to the Registrar of this Court. AG/6/HC/AJ&K Petition accepted.