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Civil Petition No. 110/R of 1979, decided on 29th October, 1979.

(On appeal from the judgment and order of the Lahore High Court dated 8‑5‑79 in Civil Rev. No. 561/D of 1979).

Civil Procedure Code (V of 1908)‑

‑‑‑‑ O. XXXIX, rr. 1 & 2‑Temporary injunction‑Petitioner holding land as a temporary lessee on year to year basis when such land allotted to respondent under a scheme framed by Government‑No averment made by petitioner of allotment having ever been cancelled by competent authority‑Petitioner having already failed in his challenge to such allotment, held, not entitled to temporary relief during pendency of suit on. same cause of action.‑[Injunction].

Kh. Mohammad Farooq, Advocate instructed by Ch. Akhter Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing . 29th October, 1979.

‑The petitioner claims to be the temporary allottee of an area of State land measuring 17 acres and 13 marlas; and situate in Chak No. 165/G. B. in Tehsil Samundari of District Faisalabad. He was holding it on. a yearly basis, and the lease was to expire in Rabi 1978. However, the lease was cancelled by the Collector, Faisalabad, in November, 1975, and the land was granted to respondent No. 1 Inayat Masih under the Ejected Tenants' Scheme. The petitioner filed a suit to challenge the allotment of the land to the respondent, and also prayed for a temporary injunction. The prayer for temporary relief was granted by the trial Court, but in appeal the injunction was vacated. The petitioner went up in revision to the High Court and although ad interim relief was granted to him, but his revision petition was ultimately dismissed on the ground that the period of his temporary lease had expired. His suit was also dismissed in default.

The petitioner thereupon filed a second suit on the allegation that he had been granted a further temporary lease for a period of five years, but the respondents were threatening to interfere with his possession. He again applied for a temporary injunction, but his application was dismissed by the trial Court as well as by the District Court. The petitioner then invoked the revisional jurisdiction of the High Court, but his revision petition has been dismissed by a learned Judge by his order dated the 8th of May, 1.979; observing that there was no averment that the allotment in favour of respondent Inayat Masih, dating back to 1975. had ever been cancelled, and, therefore, the learned Judge was not convinced about the authenticity or validity of the second allotment alleged to have been made in favour of the petitioner. On this view of the matter, the learned Judge concluded by saying that the petitioner's remedy was, therefore, not in the Civil Court but before the Revenue authorities. .

The petitioner now seeks leave to appeal on the ground that he had a prima facie case as his present temporary lease was to subsist until 1983, having been granted to him on the. 15th of July, 1978, under a new policy announced by the Provincial Government. Mr. Muhammad Farooq, learned counsel for the petitioner, submits that there was no material before the learned Judge to doubt the authenticity or validity of the allotment relied upon by the petitioner, and, accordingly, he should have held that the petitioner had a case for the grant of temporary injunction during the pendency of his suit.

We regret we do not see any merit in these submissions. On the petitioner's own showing it is clear that he was holding the land only as a temporary lessee on a year to year basis, when in November, 1975, it was allotted to respondent Inayat Masih under one of the schemes framed by the Provincial Government. When he filed his first suit, this allotment had come into existence, and constituted his cause of action. The learned Judge in the High Court was right in saying that there was no averment that this allotment had ever been cancelled by any competent authority, with the result that the allotment of Inayat Masih remained intact, and the land could not be allotted once again, even though temporarily, to the petitioner for a period of five years commencing on the 15th of July, 1978. The petitioner having already failed in his challenge to the allotment of the respondent, he was clearly not entitled to any temporary relief during the pendency of the second suit based on the same cause of action.

For these reasons, the petition fails and is hereby dismissed.

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