IFTIKHAR HUSSAIN CHAUDHRY, C.J. Petitioners' case is as follows:- One Ch. Nawab Din, predecessor-in-interest of petitioners, was in possession of land measuring 1345- Kanals situated within the revenue estate of Khiddar Tehsil and District Sialkot, ever-since partition of the Sub-continent. The land was proposed for allotment in his favour on 12.3.1963 in satisfaction of his verified claim. The allotment was duly confirmed in his name on 27.6.1968. In the year 1969, after the death of Ch. Nawab Din, the land was mutated in the names of his legal heirs.
2. SUb-Divisional Forest Officer, Sialkot filed an application before the Chief Settlement and Rehabilitation Commissioner on 13.7.1970 under Sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958, on the ground that, in view of the order of the Custodian dated 11th February, 1948, read with Directive dated 27.2.1965 of the Chief Settlement Commissioner; the land could not have been allotted in satisfaction of the verified claim of the said allottee under the Rehabilitation and Settlement Scheme.
The Additional Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner (Lands), Sialkot, by his order dated 27.7.1976 dismissed the application and allotment in favour of late Ch. Nawab Din, in satisfaction of his verified claim, was held to be lawful. Order dated 27.7.1976 mentioned above, was not challenged further.
3. The Executive District Officer (Revenue), Sialkot on 20th December, 2005 passed an omnibus order and allotment; inter alia, in favour of late Ch. Nawab Din, by the Additional Settlement and Rehabilitation Commissioner made in March, 1963, was cancelled and mutations No. 396 and 397 were sanctioned on the same day, i.e. 20th of December, 2005.
4. The petitioners-plaintiffs filed on 30th December. 2005 a slit for declaration and perpetual injunction claiming that the aforesaid order passed by the Executive District Officer (Revenue) whereby allotment/confirmation of suit land was ordered, was illegal, unlawful, unwarranted unfair, void ab initio and inoperative qua the rights of the plaintiffs and further that Mutations Nos. 396 and 397, dated 20th December, 2005, in favour of defendants were also ineffective qua the rights of the plaintiffs and nullity in the eyes of law and also contrary to the principles of natural justice. The plaintiffs also sought a mandatory injunction that defendants be directed to cancel the afore-mentioned mutations by restoring the status-quo ante. An interim injunction was also sought for, on the ground that since plaintiff were in possession of the suit land, status quo with regard to their possession be maintained.
5. A Civil Judge, 1st Class, Sialkot by order dated 23.9.2006 rejected the application for grant of temporary injunction, moved under Order XXXIX, rules 1 and 2, C.P.C.
6. The plaintiffs went in appeal, which was also rejected by order dated 11.12:2006 by an Additional District Judge, Sialkot,
7. Aggrieved of aforesaid orders, present petition was submitted, which was admitted to hearing on 10.4.2007. Learned counsel for the petitioners and learned Additional Advocate-General, Punjab, for respondents, have been heard today.
8. Learned counsel for the petitioners contended that land was allotted to predecessor-in-interest of petitioners on 12th March, 1963 and later Additional Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner (Lands), Sialkot had upheld the allotment by order dated 27.7.1976 and that order had ,attained finality and Executive District Officer (Revenue), Sialkot, was hot vested with any power to have reviewed that order or to set at naught that order. It was submitted that under Sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958, the order dated 27.7.1976 had attained finality and ' could not have interfered with by Executive District Officer (Revenue), Slalkot and consequently Mutations Nos. 396 and 397, which were sanctioned on the same day were void and those were passed/sanctioned pursuant to an illegal order, which order was also passed in the exercise of jurisdiction, which did not vest in the Executive District Officer (Revenue). It was also submitted that Forest Department respondent had accepted order dated 27.7.1976 and Executive District Officer (Revenue), Sialkot was not vested with any suo motu power to have cancelled their allotment or to have ordered transfer of the land to the Forest Department. It was further argue. That petitioners, admittedly, were in possession of the lan and that their predecessor-in-interest was in possession of the land 'since 1947 and their possession could not have been disturbed during pendency of the suit but this aspect of the matter was not adverted to by the lower Courts and jurisdiction was exercised by them in an improper manner. It was submitted that, admittedly, no notice, whatsoever, was issued to plaintiffs-petitioners, who were in possession of the land and in whose favour a valid allotment order held the field and they had a good prima facie case on that score alone but the lower Courts, despite admitting the factual position, also overlooked this fact that petitioners were not afforded opportunity of being heard in, the matter by the Executive District Officer (Revenue). It was further submitted that Directive dated 27.2.1965 of the Chief Settlement Commissioner was riot applicable to the case of the petitioners, as it clearly indicated, that evacuee land in possession of the Forest Department should not be allotted . Against claims under the provisions of the West Pakistan Rehabilitation Settlement Scheme but .In this case Forest Department, was not in possession of the land and this Directive was not applicable to the case of the plaintiffs-petitioners. It was further Submitted that the judgment of the Hon'ble Supreme Court of Pakistan relied upon by the lowers Courts reported as 1991 SCM R 1426, was based on the Directive of the Chief Settlement Commissioner and since that Directive was not applicable to petitioners' case, it would have been a moot point. Whether the judgment applied to the case of the petitioners or not? It was submitted that lower Courts did not appreciate the factual or legal controversy involved in the case and passed orders, which were patently illegal and improper and were based on misreading of the Director or instructions or Notification.
9. Learned Additional Advocate-General, on the other hand, opposed the prayer made by the petitioners for grant of temporary injunction during pendency of the suit, on the ground that both the lower Courts justifiably concluded that Notification dated 27.2.1965 issued by the Chief Settlement Commissioner was applicable to the case and land could not have been allotted to the predecessor-ininterest of the petitioners and this view was also supported by a judgment of the Hon'ble Supreme Court and impugned order, as such, were lawful orders and needed no interference.
10. I have heard the learned counsel at length and record annexed to petition has also been seen.
11. Both the lower Courts have passed detailed orders but adjudication of the application for grant of temporary injunction, moved under Order XXXIX, Rules 1 and 2, C.P.C., has been done in a manner as suit practically stood disposed of. Merits of the main case were dilated upon, commented upon and then views expressed in a manner, which ought to have been done at the time of final adjudication of the suit. The jurisdiction by the lower Courts vesting in them was exercised in an improper manner.
12. Predecessor-in-interest of the petitioners Ch. Nawab Din was in possession of the suit land since after partition of the Sub-Continent and petitioners,- admittedly, were in possession of the suit land, when the Executive District Officer (Revenue), Sialkot passed. a suo motu order on 20th December, 2005. Petitioners were not issued any notice nor they were called upon to say anything in defence. This alone, prima facie, was a ground, which in ultimate analysis, might have persuaded the Courts to interfere in the impugned order. The petitioners, therefore, had a prima facie case on that score alone.
13. A perusal of Directive dated 27th February, 1965 issued by the Chief Settlement Commissioner shows that lands, which were in possession of the Forest Department were excluded for being allotted to different claimants but in this case petitioners or the allottee were in possession of the suit land, prior to issuance of this Notification, therefore, it would be a moot point during the final adjudication of the suit, whether this Notification of the Chief Settlement Commissioner was applicable to case in hand or not? The judgment of the Supreme Court of Pakistan relied upon by the lower Courts was based on this Notification and the operative part of the order of the Hon'ble Court shows that appeal of the Forest Department, Government of Punjab, which was not in possession of the Forest Department, was rejected. Therefore, that aspect of the matter involved determination of a question of law and also a fact by the first Court, and plaintiffs in this regard had a good prima facie case, as well.
14. The petitioners Were in possession of the land. They had been cultivating the cultivable part of the land for two generations. Their possession was an admitted fact and Balance of convenience/or inconvenience was definitely in favour of the petitioners. They had a prima facie claim to retain the possession during pendency of the suit.
15. All the ingredients required for grant of injunction existed in the case of the petitioners. They had a lawful right to the grant of injunction. Therefore, the impugned orders area set aside, application moved by petitioners under Order XXXIX, rules 1 and 2, C.P.C. Is allowed. Possession of the petitioners during pendency of the suit shall not be disturbed and status-quo with regard to possession shall be maintained. .