The facts leading to this petition are, that a gift deed was executed by the respondent on the 31st January, 1976, according to which 480/658th share of the land in dispute was gifted by the respondent to his daughter and the balance 178 shares out of 658 shares appear to have been gifted to the petitioner. On the basis of this registered document, a mutation was effected on the 7th April, 1976. The donor, (respondent) filed a suit on the 10th June, 1976, challenging -the gift ' in favour of the petitioner on the ground of fraud and non-delivery of possession. She submitted an application for temporary injunction which was dismissed by the learned trial Court on the 28th September, 1976, on the ground that delivery of possession had been mentioned in the registered deed itself. The District Judge in appeal set aside this order since he was of the view that mere recital in the gift deed about transfer of possession of the property is not enough and it was incumbent upon the present petitioner to establish the positive assertion that the respondent had directed the tenants to give the share of produce to her. He, therefore, allowed the application for temporary injunction and restrained the petitioner from proclaiming the ownership of the land in dispute and interfering in its possession of the respondent.
2. After hearing the learned counsel at length, I agree with the learned District Judge that the respondent did have a prima facie case. It was not asserted even before, me that the respondent had at any stage directed hers tenant Muhammad Hussain to give the share of the produce to the petitioner.1 There is an authority for the view that as in the circumstances of the present case the delivery of possession is not proved merely by recital of factum of delivery of possession in the deed of gift and a request to the tenant to attorn to the donee would be necessary to prove. Anju-- man Islamial v. Ashiq Hussain (PLD 1967 Lah.336).
3. In the present case, however, there is a difficulty in the way of the[ respondent. It is admitted that Muhammad Hussain is no longer in possession. The case of the petitioner is that one Umeed Ali had been inducted as tenant in the land by him and the other donee Mst. Seeman Bibi.' The case of the respondent is that Umeed Ali had forcibly ejected Muhammad Hussain with the connivance of the petitioner after Kharif 1976. The sum and substance of these submissions is that the respondent is no longer in possession of the property. The injunction cannot, therefore, stand and is liable to be set aside.
4. The learned counsel for the respondent pleaded that the order of the learned District Judge be substituted by an order of appointment of a Sapurdar about the rent of the property. The only course open to the respondent is to submit an application to that effect to the learned trial Court.
The learned trial Court will certainly consider the question in its right perspective and decide the application for appointment of a Sapurdar or Receiver after considering why Muhammad Hussain who enjoyed full protection of his tenancy not only under the Punjab Protection and Restoration Rights Act, 1950, but also Martial Law Regulation No. 115 would voluntarily give up possession of the property.
5. I, accordingly, allow the petition without. Any order of injunction passed against the petitioner.