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Civil Revision No. 478 of 1980, decided on 10th December, 1980,

‑‑S. 115 read with O. XXXIX‑Suit for declaration in respect of '' n suit land claimed on basis of adverse possession‑Trial Court granting temporary injunction restraining defendant from disturbing possession of plaintiff pending disposal of suit‑Additional District Judge, on appeal, maintaining stay and observing that defendant. may obtain share of produce through legal means‑Held, observation of Appellate Court were bound to prejudice any legal proceedings that may be initiated by defendant and set aside.

Haji Khan F"aiat‑ur‑Rahman Khan for Petitioners.

Sher Zaman Khan for Respondent.

Date of hearing : 10th December, 1980.

This order will dispose of Civil Revisions Nos. 478, 563 and 565 of 1980 as they arise out of the similar facts and circumstances.

2. The petitioners in all these revisions filed a suit for declaration in respect of the suit land and claimed adverse possession on the basis of entries in the revenue record for more than 60 years. The case of the petitioners was that they had become owners and had never paid any share in the produce to any one. After the partition the suit land was allotted to one Msr. Ladi Begum but the possession of the suit land continued. This land is said to have been sold by Mst. Ladi Bagum to the respondents to whom also no share of the produce had been paid. Alongwtth the suit there was an application for the grant of temporary injunction restraining the respondents from disturbing the possession of the petitioners till the disposal of the suit. This application was accepted by the learned Civil Judge, Chunian vide his order was dated 7th July, 1979 holding that a prima facie case had been made out and the balance of convenience was also in favour of the Petitioners. The respondents filed appeals against the petitioners in which the stay regarding the possession of the suit land was maintained but, on the other hand, it was held that the respondents shall obtain the share of produce through legal means. The appeals were disposed of by these observations by the learned Additional District Judge, Kasur vide his order dated 5th February, 1980. The observations of the learned Additional District Judge as regards the recovery of laghan have been challenged in the present revisions.

3. These revisions had been admitted for regular hearing to consider that the case of the petitioners before the trial Court was that they had acquired adverse possession on the basis of the entries in the revenue record and, therefore, the question of issuing directions for .the realization of laghan were unjustified. The order of the learned Additional District Judge proceeds on the assumption as if the petitioners were tenants and that they had not obtained any declaration of their rights under section 22 of the Pakistan Administration of Evacuee Property Act, 1957. From this it was concluded that a tenant could not deny the title of his landlord. The observations of the learned Additional District Judge in favour of the petitioners as regards maintaining of possession may be quoted below at present this fact is established that respondents‑plaintiffs are in possession of suit land. A declaratory suit without possession is not maintainable. If respondents‑plaintiffs are deprived from possession of suit land certainly they would be in trouble and their suit will not be maintainable in the present form. On the basis of possession it can be said that respondent‑plaintiffs have prima facie got a good arguable case but the Court is not bound to grant relief whatever is prayed by a petitioner".

The Additional District Judge further observed that the respondents were entitled to receive the share of produce from the tenants in respect of the land in dispute.

4. It has been argued by the learned counsel for the petitioners that a stay order has been only prayed for in respect of possession and the Court had only to grant a temporary injunction in respect of the same and any observation that the respondents were entitled to obtain share of the produce through legal means was uncalled for as the same would have influenced any proceedings taken by the respondent it any Court of law. The submission has much force. The Civil Courts were only concerned to preserve the possession of the petitioners pending the disposal of the suit. It was for the respondents to take up any legal proceedings which were to be decided according to law and if some orders had been passed by the Revenue Authorities then the question of grant of further stay could be examined by the Civil Court. The question whether the ‑petitioners were liable to pay the laghan or not was not before the Civil Court and as such there was no occasion for the observations as given by the learned Additional District Judge.

5. These revisions are accepted and the observations of the learned Additional District Judge "they may obtain share of the produce through legal means" are hereby set aside as the same are bound to prejudice any proceedings that may be initiated by the respondents. The respondents may take up any legal proceedings which shall be decided on its own merits. However, the order of maintaining status quo granted by both the Courts below is hereby affirmed.

6. The learned counsel for the respondents requests that directions may be made to the trial Court for disposing of the question of jurisdiction before taking up the case on merits. No such direction is required in view of provisions of Order XIV, rule 2 C. P. e. and it is expected that the Court shall frame issue and decide the same keeping in view the provisions of rule 2.

S.Q. Petitions accepted.

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