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Suit No. 630 and Civil Miscellaneous Applications Nos. 2905 of 1985 and 434 of 1986, decided on 4th October, 1986.

‑‑‑0. XXXIX, Rr. 1 & 2‑‑Interim injunction, grant of‑‑Plaintiffs claiming to be beneficiaries of trust property‑‑Where documents on record showed semblance of trust as to character and status of property, such plaintiffs, held, would have a prima facie case and would be entitled to rant of interim injunction during pendency of suit whereby defendants could be restrained from further disposal of land which they had purchased.

‑‑0. XXXIX, Rr. 1 & 2‑‑Interim injunction‑‑An equitable and discretionary relief.

Qamar Ali Shah v. Waryam and 3 others 1976 S C M R 393; antva Memo Co‑operative Housing Society Ltd. and others v. Anwar 1i Khan and others 1979 S C M R 77 and Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others P L D 1983 S C 385 ref.

G.H. Abbasi for Plaintiffs.

Shafaat Hussain for Defendants Nos. 1 and 2.

Andlib Alvi for Defendants Nos. 3 and 4.

Raja Haq Nawaz for Defendants Nos. 6 to 21.

H . A . Rahmani for Defendant Nos. 22 to 29, 31, 34, 36, 37 and to 40.

Ibrahim Peshori far Defendants Nos. 38(a) to 38(b).

These are two applications, Civil Miscellaneous Application 9.2905 of 1985 and 434 of 1986. Through Civil Miscellaneous Application .2905 of 1985 the plaintiffs seek maintenance of the status quo and/or restraint the defendants from further disposal, construction, interference, repairs, changes or dealing with it in any other way adverse to the interest of the trial pending the disposal of the above suit, whereas through the other application Civil Miscellaneous Application No.434 of 1986, direction has been sought by defendants Nos.3 and 4 to restrain the plaintifs to direct the maintenance of status quo and/or restrain the plaintiffs from selling, constructing, repairing, changing or deal in any way adverse to the interest of defendants Nos.3 and 4 on the plot of land in question.

2. At the outset I may state that no argument was advanced by the learned counsel for defendants 3 and 4 in support of Civil Miscellaneous Application No.434 of 1986. I, therefore, take it to have abandoned by the counsel and as such it is dismissed.

3. As regards Civil Miscellaneous Application 2905 of 1985 the dispute relates to a plot of land bearing No.LR 3/1, Lawrence Road (Nishtar Road), Karachi comprising of 39,763 sq. yds. It is claimed that the said property is a trust property and the plaintiffs are its beneficiaries. On the other hand, it is alleged that defendant No.l, in whom the said property vested, approved the sale of 26.000 sq.yds. to defendants Nos.3 and 4 through its Bishop (defendant No.2) as attorney of defendant No.l, who had been managing and dealing with the said property on its behalf. The said attorney entered into an agreement of sale on 1‑6‑1962 with defendant No.3 and on 9‑4‑1963 a resolution was passed by defendant No.l approving the proposed sale. Accordingly on 14‑1‑1965 a sale‑deed was executed and registered by defendant No.2 in favour of defendants Nos.3 and 4.

4. The case has a chequered history. A suit bearing No.154 of 1962 was filed in the Court of District Judge by plaintiffs Nos.l and 2, which was, however, dismissed on 1‑7‑1963. An appeal was filed against the said judgment and decree, which was also dismissed on 16‑10‑1968 by the High Court of West Pakistan, Karachi Bench, mainly on the ground that no sanction for filing the suit was obtained by the said plaintiffs as required under section 92 of the C.P.C. Another Suit No.129 of 1965 was filed by the said plaintiffs for injunction to restrain the defendants Nos. 3 and 4 from getting the land mutated in their favour but it too brought no fruit to the said plaintiff. On 26‑3‑1969 the said plaintiffs instituted another Suit bearing No.169 of 1969 against defendants Nos.1 to 4 in the District Court which was also dismissed on 22‑5‑1970. The First Appeal bearing No.82 of 1971 filed by the said plaintiffs against the said judgment /decree was also dismissed by 'me on 24‑3‑1985, mainly on the ground that the learned District Court had no pecuniary jurisdiction to entertain the suit. A petition for leave to Appeal against the said judgment was filed in the Supreme Court, which was refused. Now the said plaintiffs Nos. l and 2 alongwith plaintiff No.3 have filed the above suit for declaration and injunction and cancellation of the sale deeds executed by defendant No.2 in favour of defendants Nos. 3 and 4 and the subsequent sales‑deeds having transferred the said land by defendants Nos.3 and 4 in favour of defendants Nos.5 to 40 on various dates.

5. Mr. G.H.Abbasi, learned counsel for the plaintiff submits that the property being trust property was not open to sale and the actions of defendants Nos.l and 2 in transferring the land to defendants Nos.3 and 4 and all subsequent transfers by defendants Nos.3 and 4 to defendants Nos.5 to 40 are void and he is entitled to an injuction as prayer. Reliance is placed by him on several documents filed by the parties which, prima facie give support to the submission of the learned counsel to the extent that the property was, perhaps, originally, religious trust property.

6. On the other hand, it is submitted on behalf of the defendants that even if it is admitted for the sake of arguments that the property in question was originally a trust property, it was validly conveyed to defendants Nos.3 and 4 who subsequently transferred the same to defendants Nos.5 to 40. It is also submitted that the plaintiffs are not the beneficiaries and have no locus standi to file the suit. It is also alleged that the suit is time‑barred, as the sale‑deed in favour of defendants Nos. 3 and 4 was executed as long back as 1965, and defendants Nos. 5 to 40 claim to be the bona fide purchasers with consideration, of the property without notice since about 1970 onward.

7. On the basis of the documents placed on record, I feel that there is at least a semblance of trust as to the character and status of the property in question. The plaintiffs have, therefore, a prima facie case in their favour as to the alleged status of the property.

8. Regarding the questions of irreparable injury and the balance of convenience for granting interim injunction during pendency of the suit, I feel it should be granted to the extent of restraining defendants 5 to 40 from further disposal of the land which they have purchased from defendants Nos.3 and 4. The defendants Nos.5 to 40 thus, will not transfer or alienate the property in question to anyone else during the pendency of the suit. It is necessary so as to avoid multiplicity of suits and creating further complication in the matter.

9. As regards interim injunction restraining the said defendants from raising further construction and/or carrying out repairs, reliance has been placed on Qamar Ali Shah v. Waryam and 3 others 1976 SCMR 393 by Mr. Abbasi. On the other hand, defendants 5 to 40 have placed their reliance on the case of Bantva Memo Co‑operative Housing Society Ltd. and others v. Anwar All Khan and others 1979 S C M R 77, which reads as under:‑

"We have heard the learned counsel for the petitioners as well as the contesting respondent No.l in this petition. Before us the learned counsel for the petitioners has laid stress to contend that the petitioners as the bona fide purchasers of the land for valuable consideration from its auction‑purchasers are in lawful possession thereof since 1972‑73. They have already carved out about 500 residential plots in accordance with a development scheme and have allotted them to the members of the Society who are in continuous possession thereof. Many of them have already completed the construction of their houses and the construction by several others is in land. The petitioner‑Society has also constructed a multi‑storeyed building having 98 flats and several shops by incurring an expenditure of more than Rs.40 lakh and the building was almost 70 per cent complete before the lst of October, 1978 when the impugned order was passed by the High Court. The contesting respondent No.l was not in possession of the land in dispute. According to the learned counsel the respondent has no prima facie case in the appeal. At any rate the balance of convenience does not lie in favour of the issuance of the impugned order and the petitioners are liable to suffer irreparable loss and injury by virtue of the impugned order. Even otherwise the conduct of respondent disentitles him to any such equitable relief."

10. The defendants Nos.5 to 40 are alleged to have purchased bona fide the property in question with consideration and without notice and being in their possession for over a decade or so. Plea of limitation, as raised by the defendants, is also not without substance. Reference has been made to Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others P L D 1983 S C 385. An interim injunction is an equitable and discretionary relief. Each case stands on its own footing. If the rights of defendants Nos.5 to 40 to use and enjoy the property are disturbed, at this stage it will cause more inconvenience to these defendants than to the plaintiffs. In view of the facts and circumstances of the case and particularly the conduct of the plaintiff, I do not think it equitable to grant injunction to the plaintiff restraining them from carrying out repairs or further construction. Mr. Shafaat Hussain has stated that defendants Nos.l and 2 have not subsisting interest whereas Mr. Andlib stated that defendants Nos.3 and 4 have already sold their interest to defendants Nos.5 to 40. Therefore, the question of passing any order against defendants Nos.1 to 4 does not arise as they are not shown to' be in possession of the land sold. However, it may be stated that this order should not be interpreted as a licence to defendants Nos.5 to 40 for construction, which is always subject to the observance of rules and regulations as in force for construction. If either of the defendants chooses to carry on any construction it will be at their own risk to be' decided at the time of ultimate decision of the suit.

11. These are the reasons for my short order, dated 1‑10‑1986 passed by me just after conclusion of the arguments granting injunction against defendants Nos. 5 to 40 for not transferring or alienating the land in question during the pendency of the suit.

A . A . Order accordingly.

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