2010 PLP 1093 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this civil revision, petitioner seeks setting aside of orders passed by two Courts below; first order, dated 28-10-2009 passed by learned trial Court dismissed the application of the plaintiff/petitioner under Order XXXIX Rules 1 and 2, C.P.C. and second order, dated 11-1-2010 passed on appeal filed by the defendant/respondent against dismissal order on application for grant of temporary injunction.

2. Brief facts of the case are that plaintiff/petitioner filed a suit for grant of decree of permanent injunction against the defendants/ respondents in the Court of learned Senior Civil Judge, D.G. Khan to the effect that the defendants/respondents be restrained from interfering into possessed land of the petitioner in the joint Khata without partition and to restrain them from selling the land purchased by them to some other person. The petitioner/plaintiff was in possession of specific portion of land of joint khata which has been developed by him incurring heavy investment, has enhanced its value and the defendants/respondents have purchased some land of the joint Khata and threatened the plaintiff/ petitioner to occupy his possessed land. Hence, this revision.

3. Learned counsel for the petitioner contends that petitioner filed a suit for perpetual injunction by claiming to be co-sharer in the suit property described in the head note of the plaint. It was further alleged by the plaintiff that out of joint Khata respondent/defendant had purchased some land in the garb of that they want to take illegal possession of the plaintiff/petitioner's land which the plaintiff/petitioner has developed and spend huge money on the development of the said land. Along with the suit application for permanent injunction was filed on 28-1-2008. The respondents/defendants filed the reply and written statement on 1-7-2008. Learned trial Court vide order, dated 28-10-2009 dismissed the application under Order XXXIX Rule 1 and 2 C.P.C. filed by the plaintiff that record of the revenue is in the name of defendant. Mutation No.21956 and other i.e. Khasra Girdawari it is also transpired that plaintiff has no prima facie case. Petitioner/plaintiff filed an appeal against order, dated 10-2-2009 and the learned Additional District Judge, vide order, dated 11-1-2010 dismissed the appeal; further submits that both the Courts below committed material illegality by refusing the application for temporary injunction; petitioner/plaintiff contends that he is a co-sharer in the joint Khata and the respondents/ defendants purchased some land from this Khata. The respondents/ defendants want to forcible possession of the land which the petitioner has developed; learned counsel for the petitioner makes reliance on case reported as Allah Bakhsh and another v. Falak Sher (2004 SCMR 1581) and Baqar Khan v. Mst. Dil Jan and 21 others (2000 MLD 1165).

4. I have heard the learned counsel for the parties and perused the impugned judgments of the Courts below.

5. Both the Courts below have observed that respondents/ defendants are co-sharer. Possession of every co-sharer is presumed to be in possession on each inch of land in joint Khata. The appropriate forum for the petitioner/plaintiff to file a suit for partition not suit for permanent injunction. The concurrent findings of both the Courts below with regard to dismissal of stay application are based on best appraisal of evidence which are not arbitrary, fanciful, are based on cogent reasons. Petitioner/plaintiff could not establish, prima facie, case for temporary in junction. Orders passed by the learned Courts below are quite legal and in consonance with law needs no interference by this Court. Learned counsel for the petitioner has failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the Court or any jurisdictional defect in the said impugned orders of two Courts below; no illegality or material irregularity pointed to have been committed by the learned trial Court or by Lower Appellate Court. I would not like to interfere in the judgments of the Courts below, in exercising provisions under section 115 of C.P.C.

6. In the light of the above discussion, this civil revision is dismissed in limine. H.B.T./M-286/L Petition dismissed.