Suit for mandatory injunction

2016 CLCN 23 PESHAWAR-HIGH-COURT Judicial Precedent

O. VII, R. 4Suit for mandatory injunctionSale mutationLimitation to challenge document

Plaintiffs filed suit to the effect that they purchased suit property from the defendants but whole property was not entered in the jamabandi

Defendants claimed set off of the mutation on the ground that one of the defendants was minor

Suit was dismissed concurrently

Validity

Impugned mutation had not been challenged by the defendants

Defendant in question had not been shown as minor in the said mutation, however from his appearance he seemed to be minor

Set off allegedly claimed would not amount to a separate suit as it was confined specifically with suit for recoveries

No evidence was available on file to suggest that plea of set off had been proved by the defendants through positive evidence

Minor defendant had made omnibus statement that mutation was bogus but no details of fraud were given by him

Written statement was silent about the particulars of fraud

Long-standing entries in the jamabandi had presumption of truth and correctness would attach to such entries

Convincing and corroborative evidence was required to annul such entries which was lacking in the present case

Beneficiary of mutation had to prove the contents of the same by producing the marginal witnesses and attesting officer including Patwari halqa

Once entries of the mutation were incorporated in the jamabandi then those would become part and parcel of the same and burden to prove mutation would shift on the defendant to rebut the said entries

Limitation had been provided to challenge document including mutation and logic behind the same was to eliminate fraud

Entries made in the jamabandi of year 1971 had not been challenged by the defendants and claim of set off had been made in the suit of plaintiffs filed in the year 1997

Defendant was bound to challenge the entries made in the jamabandi after the institution of suit by plaintiff

Defendants had sold property in question in favour of plaintiffs by concealing facts

Plaintiffs approached the revenue authorities for incorporation of mutation only to the extent of half of the property available and they were entitled to be compensated through other property owned by the defendants

Sufficient evidence was available on file for grant of decree in favour of the plaintiffs

Share of minor should be deducted from the mutation as well as revenue record to meet the ends of justice and rest of mutation should remain intact

Plaintiffs were entitled for the decree to the extent of their share excluding the share of minor and suit to such effect was decreed

Revision petition was partly accepted.

2015 MLD 1327 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.48Specific Relief Act (I of 1877), S. 55Civil Procedure Code (V of 1908), S.11 & O. XVII, R. 3Land acquisitionSuit for mandatory injunctionRes judicata, principle ofApplicabilityScope

Contentions of plaintiffs were that land acquired for the purpose was not utilized for said purpose which was liable to be restored to them and their earlier suit was dismissed for non-prosecution and for want of evidence which could not operate as res judicata

Suit was dismissed concurrently

Validity

Government (defendants) had become absolute owner of suit land on acquisition of the same and could utilize such land according to its requirements

Government could either put the land in question to auction or as a matter of grace restore the same to its previous owner

Government could not be compelled to restore the land in question to its previous owner

Earlier suit filed by the plaintiffs was dismissed for non-prosecution and for want of evidence

Decision under O. XVII, R. 3, C.P.C. would operate as res judicata

Lis between the parties stood decided in the previous suit and plaintiffs were left with no cause of action to maintain a subsequent suit

No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed in circumstances.

2015 MLD 411 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 55Suit for mandatory injunctionSettlement of accountsPreliminary decreeDelivery of possession by Nazir to a party against the order of courtEffect

Contention of defendant was that Nazir had handed over the possession of suit property to the plaintiff beyond the mandate given by the court

Validity

Plaintiff was not holding the possession of suit property at the time of filing of present suit

No order for putting the plaintiff in the disputed shop was passed by the court

Plaintiff stood placed in possession of the shop in question due to misunderstanding or wrong assumption on the part of Nazir who was solely authorized for taking accounts by breaking open the lock of said shop

Court had every power, jurisdiction and authority not only to enforce its legal order but also to bring things back within legal frame if any excess was noticed/found

No one should suffer or prejudice for act or omission of the court

Agent was legally authorized to do what the principal had permitted him/her to do and had no authority which the principal never vested him/her

Wrong assumption or interpretation would never vest a right

Plea of plaintiff with regard to bonafide had no legal value to claim continuity of such possession

No one could claim any protection or legalization even on the plea of bonafide as illegality would continue to be illegality

Nazir of the court was directed to take the possession of shop in dispute under an inventory showing what he had delivered and received and maintain the accounts in presence of representative of each party.