1979 PLP 570 (CLC)

O. XXXIX, rr. 1 & 2-Injunction, temporary-Property in dispute in possession of respondents for a long time and previously in possession of their father-Considerable amount paid to opposite party-Respondents, held, likely to suffer irreparable loss and injury in case of injunction being not granted and balance of convenience lay in favour of grant of temporary injunction.-[Injunction]. S. M. Tayyab for Appellants. Ch. Fazal-i-Hussain for Respondents. Date of hearing: 26th February, 1979. An application of the plaintiff-respondents for temporary injunction restraining the appellants from interfering with the possession of the plaintiffs and their tenants on the land in suit was allowed on 20-3-1978 by the learned Additional Administrative Civil Judge, Faisalabad. This appeal has been filed to challenge that order.

2. The facts of the case as given to me by the learned counsel for the appellants and as borne out by the record are that the land in dispute measuring 194 acres 5 kanals 10 marlas was granted under Tube-well Sinking Scheme on 20 years lease to Ghulam Muhammad predecessor-in-interest of the appellants on 29-12-1953. Since the grantee had a right to claim transfer of that property in his favour, he entered into an agreement on 9-10-1969 to sell his rights in favour of Rana Ghulam Sabir father of the respondents and delivered possession of the property to him. He also executed a document on the said date in favour of Rana Ghulam Sabir authorising him to apply for permission to sell the area in dispute and also to deposit its price in the name of Ghulam Muhammad. He agreed that after obtaining the ownership rights he would get a mutation of transfer attested within a month in his favour. On 18-1-1972 an application to sell was, therefore, submitted to the Commissioner but the same was rejected on 20-5-1972.

3. During this period Ghulam Sabir died on 9-9-1971. Another agreement was then executed by the father of the appellants in favour of the plaintiff respondents on the 30th November 1972 repeating the same condi tions. He also executed a general power of attorney on 30-11-1972 in the name of the plaintiff -respondents' nominee namely Ch. Zahirud Din Advocate authorising him not only to manage the property but also to execute the sale deed and get the mutation attested. Ghulam Muhammad died on 14-1-1974. Ist instalment of the sale value was deposited in the name of Ghulam Muhammad on 12-2-1974. The second instalment was deposited through Zahir Din on 18-1-1975, again in the name of Ghulam Muhammad,

4. On the intervention of the Chief Minister Punjab who was approached by the respondents, the Member Board of Revenue cancelled the allotment of the area in dispute from the name of Ghulam Muhammad and transferred it to the respondents on 8-3-1975. They paid the outstanding instalment on 11-3-1975 after which the mutation in the name of Ghulam Muhammad was deleted by Mutation No. 47 attested on 20-4-1975. Another Mutation No. 48 was attested in the name of the respondents on the same date.

5. Feeling aggrieved by this, Writ Petition No. 1197 of 1975 was filed by the appellants in the High Court, which was allowed on 24-9-1975. Civil Petition for Special Leave to Appeal No. 142-R/1975 was dismissed on 23-12-1975 by the Supreme Court. But the respondents right to challenge the order of Commis sioner refusing to grant permission to sell before the Board of Revenue was kept alive. In these circumstances the respondent filed a revision petition, which was dismissed by the Board of Revenue on 12-2-1977. Thereafter the present suit for specific performance of the contract was filed by the respon dents on 10-6-1977. They applied for temporary injunction as stated above and the same was allowed on 20-3-1978 on the ground that the respondent had a prima facie case and being in possession they would suffer irreparable loss and injury if the injunction was not issued,

6. It was not denied during arguments that the respondents are in possession of the property. The learned counsel for the appellants argued that this possession was unauthorised since the agreement itself was void under section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He further submitted that crucial point is whether the respondents have a prima facie case which according to him they do not have in view of the bar of section

19. He relied upon Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg (P L D 1978 Lab. 421), Abdul Shakoor etc v. A. S. Tasneem etc. (1974 S C M R 463), and Ghulam Rasool and others v. Muhammad Anwar (1969SCMR254). But all these are cases were the land in dispute had not been transferred by the Government.

7. The learned counsel for the respondents on the other hand argued that in the present case the entire value of the property had been deposited and as such Ghulam Muhammad became owner of the property. There is no bar to the filing of a suit for specific performance of the contract after the removal of the bar of section 19 of Act of 1912. He relied upon Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD1966SC612), Haji Abaullah Khan v. Nisar Muhammad Khan and others (P L D 1965 S C 690), Fateh Muhammad v. Muhammad Shafi and another (P L D 1953 Lab. 251.), Prem Sukh Gulgulia and another v. Habib Ullah a others (A I R 1945 Cal. 355), Ghulam Muhammad v. Lakha Singh (A I R 1935 Lab. 181), Inder Singh v. Dyal Singh (A I R 1924 Lab. 337), Nathu v. Allah Ditta (A I 'R 1922 Lab. 287) and Dalip Singh and others v. Balwant Singh and others (A I R 1920 Lah. 233).

8. Faced with this situation the learned counsel for the appellants argued that in this case instalments had not been paid either by Ghulam Muhammad or his legal representatives but had been paid by the respon dents in their own names and consequently the property still vested in the Government.

9. From the authorities referred to by the learned counsel it is clear) that so long as the property granted by the Government remains vested in it any agreement to sell or any sale would be void and ineffective under sec tion 19 of the Colonization of Government Lands (Punjab) Act, 1912. But one the land is vested in the grantee after he complies with the conditions of grant even though a sale deed is not executed by the Government in favoure of the grantee, the bar of section 19 is removed and an agreement to sell executed during the period when property vested in the Government would become effective after it has vested in the grantee.

10. The moot point therefore is whether the property in this case had vested in the grantee. It is not disputed that the entire value of the property has been deposited though the deposit is partly in the name of Ghulam Muhammad and partly in the name of the respondents. The deposit in the name of the respondent was on account of an order dated 8-3-1975 passed by the Board of Revenue but the plaintiffs' case is based upon the ground that this deposit may be treated to be the deposit in the name of Ghulam Muhammad or his legal representatives. The dispute between the parties is, therefore, narrowed down only to this short point.

11. It is established that in order to prove a prima facie case it is not! necessary for the plaintiff' to prove that there is no possibility of the dismissal of the suit. He has only to make out a good and strong arguable case. Similarly it is not the function of the Court while deciding the application for temporary injunction to decide the whole suit. It cannot be said in the circumstances of this case that the plaintiffs have failed to prove such a case. If the Board of Revenue had not passed the order dated 8-3-1975, even then it was open to the respondents to make the deposit in the names of the appellants though it might not have been open to Zaheerud Din to make such a deposit. The plaintiff's were, therefore, rightly held to have a prima facie case. The property in dispute has been in possession of the respondents) for a long time and previous to them it was in possession of their father, They have also paid a considerable amount to Ghulam Muhammad. The would, therefore, suffer an irreparable loss and injury if the injunction is granted to them: The balance of convenience was therefore, in the grant or the temporary injunction. The order of the learned trial Court is correct.

12. This appeal is, therefore, dismissed with costs as being without merit. Appeal dismissed.