' On 21st May, 1978 the petitioner filed a suit for declaration in respect of House No, BII-25-61 situate at Deganwala Bazar, Gujranwala, on the around that he was the real owner of the said house though transferred in the name of respondent No, 2 (his mother) was in-fact his property and the entire transfer price had been paid out of the funds provided by him. On the contrary the case of the respondent was that the house in question had been given in dowry to respondent No. 1. The sister of the petitioner and a regular gift deed was also executed in her favour in 1973. Respondent No, 2 executed a rent note in favour of her daughter respondent No. 1 on 19th December, 1973.
Respondent No. 1 subsequently filed an eviction petition against respondent No 2 which was accepted on 27th May, 1978 and the eviction order was not challenged by respondent No, 2.
However, the petitioner filed an appeal against the said order of eviction which was dismissed by the Additional District Judge, on 21st January, 1979. The petitioner during the pendency of the appeal had already filed the suit as stated above. The petitioner had also claimed perpetual injunction by way of consequential relief restraining the respondent from causing eviction of the petitioner in pursuance of the order of eviction or in any way disturb his possession as he had also claimed that the entire proceedings initiated by respondent No. 1 against respondent No, 2 were collusive and mala fide. Alongwith the suit an application was filed for the grant of temporary injunction pending the disposal of the suit. The trial Court vide its order dated 13th February, 1979 accepted the application and status quo was ordered to be maintained in respect of the possession of A the disputed house. The respondent filed an appeal against the said order and the learned District Judge, Gujranwala vide his order dated 4th July, 1979 vacated the stay order by accepting the appeal which has been challenged in the present revision.
2. Learned counsel for the petitioner has submitted that the petitioner had made out a prima fade case and the i:'alance of convenience for maintaining his possession during the pendency of the suit was also in his favour. It was pointed out that respondent No, 2 bad colluded with respondent No. 1 to deprive the petitioner of the said property, the transfer price of which had been paid out of the funds provided by the petitioner and he had made improvements in the property at a cost of about Rs, 50,000. Learned counsel for the petitioner has further submitted that even if the transfer made by the respondent No, 2 be not for the present treated as 'benamr, the petitioner was entitled to protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and he could not be evicted unless there was a petition for eviction filed against him as provided under the law after due service of a notice under section 30 of the said Act. Learned counsel has drawn my attention to the entry made in the Nikahnama of respondent No. 1 in which there is a mention of the house having been given in gift to respondent No, I and also the subsequent gift deed made in 1973. It is specifically denied that respondent No, 2 had ever occupied the property at the time of the alleged gift or even at present. The precise submission is that the alleged gift is illegal and void on account of the fact that it was not accompanied by the delivery of possession.
3. The learned District Judge, Gujranwala while accepting the appeal has relied on fact which were disputed but had been treated to be as admitted. It was observed by the learned District Judge, that Mst. Sardar ,Bibi was admittedly transferee of the disputed house since 1960 and that she had been in possession as its owner. There was a specific assertion on the side of the appellant that respondent No, 2 was not residing in the house in question and the learned counsel for respondent could not contradict this fact. It was further observed by the learned District Judge, that if there could be a collusion between the mother and the daughter to oust the petitioner, she too was not the stranger but the nearest relation of the respondents. The question of grant of stay could not be decided on the basis of the close relationship but according to the averments contained in the pleadings and other circumstances. From the examination of the facts as contained in the plaint the petitioner had made out a prima facie case for the grant of stay order. He was admittedly in possession of the property since partition and in any case he was entitled to protection under section 30 of the Act XXVIII of 1958. The validity of the gift made was yet to be gone into and should not have been weighed in terms of the relationship of the parties. There were serious questions such as the maintainability of the suit, benami nature of the transaction and the validity of the gift.
The question whether an order of eviction could not be challenged in a civil suit has not been finally decided and was left open in view of the dictum laid down in Muhammad Amin v. Jamshed Ali (1).
The observations of the learned District Judge therefore, that the suit was not maintainable in view of the section 15 of the Rent Restriction Ordinance without examining the question in detail was wholly unjustfied. In case the petitioner was dispossessed he would have suffered irreprable loss and as such all the three ingredients necessary for the grant of temporary injunction had been made out.
4. Learned counsel for the respondent could not rebut the contention of the petitioner that he was entitled to grant of temporary injunction pending the disposal of the suit. All the considerations on which the learned District Judge, had refused to grant temporary injunction were {{FOOT NOTE}}
(1) PLD 1967 Lah. 856 {{FOOT NOTE}} imaginary and he had not examined the case by applying the essential ingredients necessary for the grant of temporary injunction.
5. In view of the above discussion, this revision petition is accepted. The order of the learned District Judge dated 4th July, 1979 is set aside and that of the trial Court dated 13th February, 1979 is restored. It is further directed that the learned trial Court shall in the first instance frame the preliminary issues regarding the maintainablity of the suit and other legal objections and dispose of the same in accordance with law. The parties shall appear before the trial Court on 13th November, 1980. However, in the circumstances of the case there will be no order as to costs.