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Civil Petitions Nos. 478 and 713 of 1979, decided on 8th March, 1980.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 8th of April, 1979, by which Civil Revision No. 50 of 1979 was dismissed).
-- O. XXXIX, r. 1-Injunction-Contention that order of High Court in regard to certain Khasra numbers being based o6 sole considera tion of possession without there being any finding as to existence of a prima facie case and balance of -convenience not maintainable Held, High Court though not clearly expressing on such aspect yet order gives an impression that High Court had these considera tions in mind-Conclusion of High Court being not improper or arbitrary no reason disclosed for interference with discretionary order of High Court based on tentative opinion.
Ch. Muhammad Sadiq, Advocate and Tanvir Ahmad, Advocate on Record for Petitioner (in C. P. 478/79) and Respondent (in C. P. 713/79).
Asadullah Siddiqi, Advocate and Salahuddin, Advocate-on-Record for Petitioner (in C. P. 713/79) and Respondent (in C. P. 478/79).
Date of hearing : 8th March, 1980.
-This order will govern Civil Petitions Nos. 478 and 713 of 1979 as they arise out of 4the common judgment of the Lahore High Court; Lahore, dated 8th of April, 1979, by which Civil Revision No. 50 of 1979 was partly accepted.
The petitioner in Civil Petition No. 478 of 1979 jointly owned 40 kanals and 14 marlas of land bearing Khasra Nos. 4382, 4383, 4406 4407, 4408 and 6710, situate in village Mianki More, Tehsil Chunian. District Kasur, with his two other brothers, Hakim Ali and Noor Muhammad. Noor Muhammad died issueless and his inheritance de volved on the petitioner and Hakim Ali. inheritance mutation No. 3812 was sanctioned in 1976 in regard to it. Thereafter, by two separate sale deeds, the petitioner and Hakim Ati sold their shares in the land to the respondent herein. In this petition, the dispute relates only to the sale of his share by the petitioner. His sale was evidenced by mutation No. 434 which was duly sanctioned on 12th of February, 1978. The petitioner, however, disputed the sale transaction and filed a declaratory suit on 15th of May, 1978, to challenge it and also pray ed for permanent injunction. The trial Court by order dated 6th of July, 1978. granted interim injunction pursuant to his prayer on the assumption that be was in possession of the Khasra numbers but in appeal the District Judge, Kasur, vacated it by order dated 13th of January. 1979. The petitioner went in revision to the High Court and partially succeeded as the order of the trial Court was maintained in respect of Khasra Nos. 4382, 4406 and 6710. As regards Khasra Nos. 4383, 4407 and 4408, the High Court held that the respondent was in possession of it and, therefore, the trial Court had wrongly issued injunction qua these Khasra Numbers. The respondent who is the petitioner in Civil Petition No. 713 of 1979 has assailed the order of the High Court qua the possession of the petitioner of Khasra Nos. 4382, 4406 and 6710.
The learned counsel for the petitioner in Civil Petition No. 478 of 1979 has contended that the High Court fell into an error in holding that he was not in possession of Khasra Nos. 4383, 4407 and 4408 and in support of it he relied on the Khasra Girdawari for the period from November, 1975 to 1979, wherein the petitioner was shown to be in possession of the Khasra numbers. This contention has not appealed to us as prima facie there is evidence of sale which is not only high lighted by the sale deed but also by the sale mutation in regard to which there is also a reference in the Khasra Girdawari which as com pared to the sale mutation, has hardly any evidential value, wherein the fact of change of possession is mentioned. The petitioner should consider himself fortunate to have partially succeeded as in the ultimate analysis the onus will be on him to disprove the sale deeds and the sale mutation entered to support it. We, however, do not find any ground to interfere with the order.
The petitioner in Civ-1 Petition No. 713 of 1979 challenged the order of the Hi eh Court in regard to Khasra Nos. 4382, 4406 and 6710 on the ground that it was based on the sole consideration of possession without there being any finding as to the existence of a prima facie case and the consideration of the balance of convenience. It is true that the. High Court has not expressed clearly on this aspect but on a reading of the order it gives an impression that it had these considerations in mind. Be that as it may, the High Court had, on its reading of the Khasra Girdawari, held Bagh Ali to be in possession of only three Khasra numbers which conclusion cannot be regarded as improper or arbitrary. Therefore, we do not see any reason to interfere with the discretionary order of the High Court as it is only a tentative opinion.
Accordingly, both the petitions are dismissed.
Petitions dismissed
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