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Civil Revision No. 406 of 1985, decided on 9th December, 1985.

---S. 115 & O. XXXIX, Rr. 1 & 2--Temporaty injunction--Vacation of--Revisional jurisdiction, exercise of--Oral will in favour of plaintiff regarding land in dispute had still to be proved by means of evidence- Plaintiff raising inconsistent contentions in respect of his physical possession over land in dispute--Petitioner having failed to make out prima facie case and to establish ground for irreparable loss to him, order of appellate Court below vacating temporary injuction granted by trial Court, being based on principles governing grant and refusal of temporar3 injunction and not found to be arbitrary or fanciful, held, could not be amenable to revisional jurisdiction of High Court.

Fazal Din v. Mst. Robeena Aurangzeb and 2 others 1983 C L C 1280; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 ref.

Mian Noor Muhammad for Petitioner.

Mian M. Zafar Yasin for Respondents.

Date of hearing: 9th December, 1985.

Relying on an oral will in his favour, petitioner Mehr Muhammad Tariq, a minor now aged 8/9 years, brought a civil suit on 10-9-1984, through his father Mehr Khurshid Ahmad acting as his next friend, for declaration that he is the owner of land in suit and that Muhammad Shafi, Habib Shah and Mst. Zainab Bibi (defendants Nos. 2 to 4) have no concern therewith and the will in their favour which is alleged to have been registered on 9-8-1984 (after the death of Mst. Gul Bibi deceased owner) is false and fictitious and also ineffective against his rights. He also prayed for a decree of prohibitory permanent injunction. to restrain them from interfering with his ownership, .possession and use of the suit land. With the suit an application was also filed under Order XXXIX, rules 1 and 2 of the C.P.C. for grant of temporary injunction to prohibit the attestation of any mutation and restrain the defendants temporarily in terms of the permanent injunction claimed in the suit which is still at initial stages. Learned Civil Judge, by his order, dated 6-3-1985 held the prayer with regard to mutation to have become infructuous on account of the meanwhile attestation of relevant mutation but, despite the fact that there is not even an averment made in the application that the plaintiff may be in possession of the land, issued the temporary injunction prayed for with regard to possession by ordering that status quo will be maintained so that whichever party is in possession will continue to remain so.

2. The defendant--respondents, who also included Mehr Sultan Ahmad Khan and Mehr Sher Ahmad Khan (the two sons of the testator Mst. Gul Bibi), went up in appeal against this interim injunction. Their appeal has been accepted by the learned District Judge with the conclusion that the alleged oral will in favour of the plaintiff had still to be proved by means of evidence and such could not be called a prima facie case in his favour. For this proposition he placed reliance on Fazal Din v. Mst. Robeena Aurangzeb and 2 others 1983 C L C 1280. In para. 8 of his judgment he concluded:--

"Adverting to the case in hand, neither the respondent is shown or even claimed to be in actual physical possession of the property nor his claim is seemingly on better footing, It is significant, and pertinent to note that the appellants claim is based on a registered document while that of the respondent is founded on an oral 'will'.' hat being so, the irresistible conclusion would be that what to speak of a prima facie case, not an arguable case exists and made out in favour of the respondent."

Plaintiff's application for grant of temporary injunction having thus been rejected in its entirety upon acceptance of the appeal of the respondents, he has now come up to this Court on revision.

3. Learned counsel has argued that learned District Judge has been in error in believing that the plaintiff is not in possession of the land in dispute and has referred to para. (iii) of the grounds of appeal taken before him by the respondents wherein they have stated that in the course of proceedings in L.P.A. No. 14 of 1986, under the order of the High Court, entire land in suit continues to remain in the Sapurdari of Mehr Khurshid Ahmad (father of plaintiff. There from he concludes that since the possession is admitted to be with the plaintiff's father who also happens to be his next friend for the purposes of this suit, therefore, it follows that he holds the possession on behalf of the plaintiff and hence the plaintiff himself is in possession of the land in suit. This contention is too preposterous to be accepted in the presence of the averment made in para. 5 of the plaint to the effect that the land is in actual possession of tenants. Not only that it is inconceivable that a child of tender age may himself be in possession of property but also father's possession, of whatever kind it may be, is not open to be protected in this suit. Moreover, the contention with regard to the father's possession being ascribable to the plaintiff had not been raised in the plaint wherein assertion to the contrary is clearly made that the plaintiff holds the possession through his tenants. Where a person has come to hold a property lawfully in one capacity, it is not open to him to describe it as being held by him in another capacity held by him and hence neither the plaintiff can get any benefit from the possession held by his father Mehr Khurshid Ahmad nor can he himself thereby perpetuate his hold over the land in dispute subsequent to the disposal of Latters Patent Appeal, on 8-7-1984. Learned counsel for petitioner has today admitted before me that Mehr Khurshid Ahmad is facing the liability to render accounts as a Receiver which has been urged in more than one application filed in the Latters Patent Appeal which still await to be determined. Be that as it may, learned counsel has not shown that the conclusion of the learned District Judge, namely, that the plaintiff had neither been shown nor alleged to be in actual physical possession of the property, can be wrong. His abovenoted contention is simply untenable and is accordingly repelled. With this also falls to the ground his only other assertion that refusal of temporary injunction may cause irreparable loss to the plaintiff.

4. Upon a due consideration of the principles governing the grant and refusal of temporary injunctions, learned District Judge has exercised his discretion to vacate the temporary injunction granted by the trial Court. His order is not arbitrary or fanciful within the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139, reaffirmed in Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 and, therefore, cannot be amenable to the revisional jurisdiction of this Court.

5. No other point has been argued.

6. This Civil Revision has no substance and is accordingly dismissed.

No costs.

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