2012 PLP 817 (CLC)

MUNIR AHMED CHAUDHARY, J.

One Ahmed Din filed an appeal against the order of District Judge, Bhimber, dated 8-12-2010, through which appeal filed by Ahmed Din was dismissed and order of the trial Court was upheld regarding cancellation of interim injunction. As no second appeal lies against any order passed under Order XXXIX, C.P.C. The learned counsel for the respondents objected that the instant appeal is not maintainable in the present shape but the learned counsel for the appellant requested to convert the instant appeal into a revision, After hearing the parties, the present appeal was converted into a revision petition vide order dated 22-12-2011. So, the present appeal is hereby treated as revision.

2. Brief facts giving rise to the present revision petition are that the petitioner/plaintiff filed a suit for permanent injunction against the respondents in the court of Senior Civil Judge Bhimber on 27-5-2010, stating therein that the petitioner is the owner in possession of the disputed land measuring 12 Kanals and 16 Marlas situated at village Kangra Tehsil Bhimber. The respondents/defendants have no right over the said land. The respondents want to change the nature of the disputed land through construction and encroachment. The petitioner/plaintiff prayed to pass a decree against the respondents.

3. The petitioner/plaintiff submitted a separate application for interim injunction, which was allowed. The respondents submitted objections regarding interim injunction. After hearing the parties, the learned Senior Civil Judge Bhimber cancelled the said interim injunction. The petitioner preferred an appeal before District Judge Bhimber against the order of the learned Senior Civil Judge Bhimber. After hearing the parties, the learned District Judge Bhimber dismissed the appeal and maintained the order passed by the learned Senior Civil Judge Bhimber. Hence, this revision petition.

4. The learned counsel for the parties advanced their arguments. Mr. Bostan Chaudhary Advocate, the learned counsel for the petitioner argued that the petitioner is admittedly owner of the disputed land. The respondents want to construct a road encroaching the disputed land without consent of the petitioner. The petitioner filed a suit for permanent injunction and if interim injunction is not issued, the suit will become in fructuous. The petitioner/plaintiff has got an arguable case, balance of convenience lies in his favour and if an interim injunction is not issued, the petitioner/plaintiff will suffer an irreparable loss. The learned counsel requested to accept the instant revision petition.

5. While controverting the learned counsel for the petitioner, Mr. Abdul Razzaq Chaudhary Advocate, the learned counsel for the respondents contended that a road has been constructed by the Local Government Department some years before for the benefits of the general public including the petitioner. The petitioner wants to make hurdles and has closed the said road in the garb of disputed land owned by him. All the owners of the village have left the land for the construction of the said road. The people of the area are utilizing the said road since last five (5) to six (6) years. The trial Court appointed commission to make a report. The commission inspected the land and made a report against the petitioner/plaintiff. The petitioner also left some land for the construction of the road before, but now he has closed the said road. The suit filed by the petitioner is not maintainable in the present shape. The learned counsel requested to dismiss the revision petition and referred a precedent 2002 CLC 571 in support of his arguments.

6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and the precedent referred minutely. It is an admitted fact that the petitioner/plaintiff left some land for the construction of the said road before when the road was constructed. The trial Court appointed a commission to inspect disputed land and to make a report for the same. The commission made a report to the trial Court after inspection of the said road and surroundings. No objection was raised before the trial Court by the petitioner/plaintiff. It was mentioned in the report that the said road was constructed in 2006 by the Local Government. The people of the area also left some land for the same. Rs.20,000/- were approved by the Local Government department for this purpose. The petitioner/plaintiff also participated in the construction of the road reserving his own land for the road too, Now, the petitioner/ plaintiff is debarred to raise any objection on the construction of the road. The petitioner/plaintiff did not seek declaration of his ownership in the suit regarding the disputed land, so no consequential relief of permanent or interim injunction can be granted to him. This principle has been laid down in the precedent 2002 CLC 571 referred by the learned counsel for the respondents. It was also held in the said precedent that where there was a preliminary objection regarding maintainability of the suit, the court should have been decided this point before any other questions involved in the matter. If the petitioner/ plaintiff was not willing while leaving his land for the construction of the road, he has got a right to claim for the compensation regarding his land from the concerned authorities. Having in view the circumstances discussed above, this revision petition fails, which is hereby dismissed. The learned Senior Civil Judge Bhimber is hereby directed to record his findings on the legal issues regarding maintainability of the suit first. No order as to costs. H.B.T./14/H.C.(AJ&K) Petition dismissed.