1990 PLP 949 (SCMR)

Raja Azizuddin Ahmed, Advocate Supreme Court and Manzoor Ilahi, Advocate‑on‑Record for Petitioners. Sh. Zamir Hussain, Advocate Supreme Court and Imtiaz M. Khan, Advocate‑on‑Record for Respondent.. Date of hearing: 8th January, 1990. S. USMAN ALI SHAH, J.‑‑‑This is a petition for seeking leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 11‑4‑1989 of the petitioners against the order of the Additional District Judge, Rawalpindi dated 10‑1‑1989, was dismissed. Mushtaq Ilahi respondent, an owner of 1 kanal of land out of Khasra No.395, Khewat No. 55 and Khatoni No. 78 situate at village Sagra Brahmanan, Tehsil and District Attock, filed an application under Order 39 Rules 1 and 2 of the C.P.C. against the petitioners for permanent injunction, restraining the petitioners from tampering with the land in dispute. It was stated in the said application that the defendants/ petitioners had obtained some land on Patta from some owners and without partition of the land with the respondent started digging the land for the purposes of Brick Kiln. The petitioners contested the said application and on the pleadings of the parties and recording the evidence thereof, the learned Civil Judge Rawalpindi dismissed .the said application, vide his order dated 15-9‑1988. Appeal of the respondent before the Additional District Judge, Rawalpindi was allowed, the order of the Civil Judge, dated 15‑9‑1988 was set aside and issued status quo order in favour of the respondent, till the decision of the suit, vide order dated 10‑1‑1989. The petitioners went in civil revision before the Lahore High Court against the said order which was dismissed by the impugned judgment. We have heard the learned counsel for the parties and have gone through the record of the case. We have observed that the land in dispute measuring 26 kanals 7 marlas out of Khasra No. 395 is entered as "Ghair Mumkin Bhatta" in Register "Haqdaran" for the year 1985‑86 Annexure `I'. According to the said Register, Willayat Shah a co‑owner sold 3/5 share of land to Muhammad Shah son of Misri Shah which is also shown as "chair Mumkin Bhatta" and in Khana‑e‑Malkiyat Allah Dad son of Nawab is shown as owner while in Register Haqdaran for the year 1985‑86 Annexure `J' the name of Ghulam Hussain Shah son of Muhammad Shah is shown as owner in "Khana‑i‑Kasht". Willayat Shah is shown the vendee while Nluhammad Shah is shown as Vendor of 26 kanals 7 marlas of land as "chair Mumkin". Fared Khan petitioner is a lessee of this area of 26 kanals 7 marlas "chair Mumkin Bhatta" while Mushtaq llahi respondent is an owner of 1 kanal out of this Khasra. ` The record further shows that the kind of land as "chair Mumkin Bhatta" had already existed at the time of the sale in favour of Willayat Shah, the lessor of the plaintiff; respondent. Hence, under the special circumstances, we convert this petition into appeal and the allow the same with the terms that the impugned order of the High Court is set aside, the order of the trial Court dated 15‑9‑1988 is restored and due to the urgency of the matter, the lower Court is directed to decide the case according to the law within a period of six months. AA./F‑165/S Order accordingly.