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Civil Petition for Special Leave to Appeal No. 322 of 1981, decided on 30th May, 1981.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 13‑12‑1981 in Civil Revision No. 2041 of 1980).

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.XXXIX, r.1‑‑interim injunction‑‑Refusal of‑‑On basis of material on record, prima facie case of petitioner not established‑‑Evidence of his dispossession being available, discretion, held, properly exercised‑‑Leave to appeal refused by Supreme Court during pendency of suit.

Allah Wasaya Malik, Advocate and Rana M.A. Qadri, Advocate‑on Record for Petitioner

Sh. Hamid Mukhtar, Advocate Supreme Court and Abdul Karim, Advocate‑on‑Record for Respondents.

Date of hearing: 30th May, 1981.

‑‑ The petitioner filed a suit for a declaration that he was in possession of the land and had perfected his title by adverse possession and for setting aside Mutation No.942, dated 10th of August, 1977, wherein his name was not shown as being possession of the suit land.

In this petition the petitioner assails the interlocutory order dated 6th of October, 1980, by which the Civil Judge, First Class, Bhakkar, refused to grant interim injunction so as to maintain his possession. It was pleaded in the suit that his father, Samundar Khan, had taken forcible possession of the suit land about 55 years ago and on his demise he has remained in its cultivating possession as its owner. He relied on the Jamabandi for the year 1928‑29 wherein his father was entered as Ghair Dakhil Kar of the suit land. The respondents relied on the entry in the Khasra Girdawari for the year 1979 which showed that ejectment proceedings were taken against him on 29th of March, 1979, as per Report No. 311 and that pursuant to such proceedings, he was ejected from the suit land as per Roznamcha Waqiati. The respondents also produced the orders of the revenue authorities dismissing his petitions against his ejectment from the suit land. On the basis of this material the trial Court held that it was not prima facie established that he was in possession of the suit land.

In an appeal against this order the appellate Court held that it was manifest from the revenue record that possession of the suit land was handed over to the respondents by the Naib‑Tehsildar, Darya Khan, "as a result of the consolidation proceedings" pursuant to his, order, dated 22nd of February, 1978, and the appeal and revision against this order were dismissed. The appellate Court also relied on report No.311, dated 29th of March, 1979, recorded in the Roznamcha Waqiati which further established his actual dispossession from the suit' land. In revision before the High Court, he did not succeed as the High Court held that there was evidence to show that he was dispossessed.

The learned counsel for the petitioner contends that it was only a notional dispossession though in point of fact he is in cultivating possession of the land and, therefore, the Courts below have wrongly exercised their discretion against him. This contention has no substance as the Courts below have prima facie held so after examining the revenue record. In the circumstances it cannot be said that the discretion was improperly exercised. Further, as the suit is still pending, it is needless to examine, in detail, the propriety of the plea as that will be a matter for the trial Court to consider and decide.

The petition, therefore, has no merit and is dismissed.

M. I. Petition dismissed.

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