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Regular Second Appeal No.493 of 1975 decided on 14th March.

---S.54--Civil Procedure Code (V of 1908), S.100--Perpetual injunction, grant of--Second appeal--Findings of fact recorded by Trial Court to the effect that plaintiff/appellant himself had withdrawn Zare-Peshgi in respect of property in dispute and that he was neither in possession of suit land nor had paid any instalement--Such finding based on un-rebutted evidence on record and was neither challenged in memorandum of first appeal nor before High Court--Appellant in such circumstances, held, had no locus standi to seek equitable relief in form of perpetual injunction especially when appellant failed to appear in witness-box in spite of opportunity afforded to him--Suit of plaintiff was rightly dismissed by Courts below.

Barkat Ali v. Administrator, Thai Development, Bhakkar PLD 1978 Lah. 867 ref.

Ilahi Bakhsh Vijdani for Appellant.

Sh. Abdul Majid for Respondent.

Date of hearing: 14th March, 1987.

This second appeal under section 100 C.P.C. arose out of a suit filed by the appellant against the Administrator Thal Development Authority, respondent, claiming perpetual injunction restraining the respondent from interfering with the possession and cultivation of the appellant over lot No.9 measuring 200 kanals situated in Chak No.5 Rakh Hetu, District B-hakkar, on the ground that the respondent having itself not complied with the condition of trial boring could not have resumed the lot without notice and without affording an opportunity of hearing.

2. The respondent contested the suit and controverted the allegations of the appellant,- inter alia, on the plea that the appellant had withdrawn Zare-Peshgi and as such the respondent was not bound to undertake the trial boring and that the appellant had no locus standi to challenge the resumption of the land. It was further asserted that the suit was not maintainable in its present form as the appellant was not in possession of the suit land.

3. The pleadings of the parties led to the framing of the following issues:-

(1) Whether the plaintiff is in possession of the suit land O.P.P.

(2) Whether the plaintiff has received back the Zare-Peshgi, if so with what effect O.P.D.

(3) Whether the order of resumption by the defendant is illegal and void for the reasons stated in the plaint O.P.P.

(4) Relief.

The learned trial Court after recording the evidence returned the findings on all the issues against the appellant and consequently dismissed the suit with costs vide judgment and decree, dated 13-3-1975. The appellant filed an appeal which was dismissed by the then learned District Judge, Mianwali, vide judgment, dated 11-7-1975 holding that the Civil Court had no jurisdiction to entertain and decide the case against the respondent in view of the enforcement of Amending Ordinance contained in Gazette Notification No.Legis.3(19)/75, dated 6-6-1975. This led to the filing of the present sec, appeal, assailing the decree of the first appellate Court with the prayer that the matter be remanded to the first appellate Court for decision of the appeal on merits.

4. I have heard the learned counsel for the parties. Learned counsel for the appellant argued that in view of the decision in the case of Barkat Ali v. Administrator, Thal Development, Bhakkar P L D 1978 Lah. 867 and judgment dated 17-12-1987 in H.S.A. No.121 of 1975, the impugned decree is liable to be set aside. The argument of the learned counsel for the respondent, however, was that though the first appeal could not be dismissed on the question of jurisdiction yet no useful purpose will be served by remanding the matter for decision of the first appeal on merits as firstly in the regular second appeal the findings of fact recorded by the learned trial Court ha, is not been assailed and secondly the remand at this stage, when the matter has remained pending before this Court for more than 12 years, will not serve the cause of justice as learned counsel for appellant has not been able to point out any material from record to controvert the findings returned by the learned trial Court on issues Nos.l to 3. It was argued that no other view could be taken on these issues in view of the evidence available on record. In nutshell the argument was that in the circumstances of this case remand should not be resorted as it will not serve the cause of just and would rather prolong the agony of the parties.

5. Having gone through the record I am inclined to agree with the submissions of the learned counsel for the respondent. Learned trial Court under issue No.2 held that the appellant had withdrawn Zare-Peshgi. This finding was not challenged in the memorandum of first appeal and even before me nothing was referred to even prima facie show that the Zare-Peshgi had not been withdrawn by the appellant. The evidence brought on record by the respondent on this aspect, therefore, remains unrebutted. Again under issue No. 1 it was held that the appellant was not in possession of the suit land. The appellant fled to enter the witness box. The plea that he was not afforded an opportunity to appear as his own witness taken in the memorandum; of first appeal is without any basis as the said plea remains unsubstantiated from the record. The other finding of fact recorded by the learned trial Court to the effect that the appellant having withdrawn Zare-Peshgi never entered the land for its cultivation and development and ever paid any instalment, has also remained uncontroverted. In these circumstances the appellant had no locus standi to seek equitable relief in the form of perpetual injunction. The learned trial Court was, therefore, perfectly justified in dismissing the suit. The remand of the matter at this stage to the first appellate Court would not serve any useful purpose. 'For all these reasons I find no merit in this appeal which is hereby dismissed with no order as to costs.

H.B.T./N-23/L Appeal dismissed.

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