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Civil Petition for Special Leave to Appeal No. 1567 of 1980, decided on 5th December, 1981.
(On appeal from the judgment and Order dated 14‑10‑1980 of the Lahore High Court Lahore in Civil Revision No. 1670‑D of 1980).
‑‑ Ss. 42 & 54‑Declaratory suit‑Injunction‑Petitioners found entitled to piece of land in dispute and held, to be in possession of same --Special leave to appeal‑Granted to consider whether injunction could be refused to petitioner or such relief could remain unattended. [Injunction].
Maqbool Elahi, Advocate Supreme Court, Jahangir A. Jhoja, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 5th December, 1981.
.‑The petitioners who are the plaintiffs, seek leave to appeal against the judgment of the Lahore High Court dated 14‑10‑1980 'whereby their Civil Revision was dismissed.
2. The petitioners are the nephews of one Mian Khuda Bakhsh who died on 10‑10‑1965 without leaving any male issue. They claimed ownership of the land belonging to him to the extent of 584 kanals under a will dated 5‑6‑1965, another 81.1/4 kanals as gift from a sister of Mian Khuda Bakhsh and another about 674.3/4 kanals as mortgagees having redeemed the mortgage from an earlier mortgagee. They claimed to be in possession of the entire land apart from a declaration of ownership in respect of it they also sought an injunction that their possession be not disturbed except by taking proceedings for partition. A number of issues were framed. The will was found not proved. The gift from Mst. Badshahi to the extent of 81.1/4 was held established. The trial Court found that the redemption of the mortgage was not established. A declaration in respect of 81.1/4 was granted without adverting to the injunction prayer. The first appeal failed and so did the revision petition.
3. The learned counsel for the petitioners contends that the relief of injunction in terms prayed for could not be refused or remain unattended once the petitioners were found entitled to a piece of land and were held to be in possession of it notwithstanding that their possession exceeded their exact share in it.
4. This aspect of the contention of the learned counsel for the petitioners whether injunction could be refused to them or the relief for injunction could remain unattended requires further examination and the leave to appeal is granted in the matter. Security in the sum of Rs. 2,000. The respondents are temporarily restrained from interfering with the possession of the petitioners except in accordance with the law.
Leave granted.
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