1. ' MUHAMMAD YOUNAS TAHIR, J.--- This appeal has been filed against the order of learned District Judge, Mirpur dated 4-8-2008, whereby the said Court vacated the status-quo already issued by him.
2. ' The necessary facts precisely stated are that Waheed Ahmed and other appellant herein filed a declaratory suit cum perpetual injunction pertaining to Plot No.62 measuring 2 Kanals situated in Sector B/2 Mirpur, in the Court of District Judge Mirpur on 24-6-2008. The appellants/plaintiffs claimed in their suit that plot in dispute was allocated in the name of their father on 30-9-1964 and who deposited the price of the plot. According to the appellants/plaintiffs, that their father, after getting permission from relevant authority raised construction over the disputed plot in shape of Basement and after completing the same, applied for proprietary rights, which was not granted.
3. The appellants/ plaintiffs further alleged that predecessor-in-interest of the appellants and pro forma- respondents felt that plot in dispute was insufficient for the residential purposes, made an effort to purchase a plot of 4 Kanals in sector F/2 Mirpur. Due to this reason, he had sold the same through an agreement to sell to Muhammad Siddique respondent No.1 on 21-7-1971. According to the appellants, this sale was conditional which was ultimately revoked by the predecessor-in- interest of the appellants and pro forma-respondents. Therefore, the appellants and pro forma- respondents, are bona fide allottees and owners of the disputed plot. The appellants/plaintiffs maintained that their father died on 12-11-1985, their mother was Pardanasheen lady, whereas, appellants and pro forma respondents were minors and they were ignorant about the allotment made in the name of their father. The respondent/defendant No.1, on the 'basis of revoked agreement deed applied for transfer of plot and same was transferred in his name by the Municipal Corporation Mirpur through transfer order dated 6-4-2004. They further alleged that respondent No.1 secretly and fraudulently got transferred the plot in dispute in his name, therefore, this transfer order dated 6-4-2004 was in operative against their rights and might be declared null and void against their interest. They further claimed that all the subsequent transfers made on the basis of above said transfer order were illegal, against the facts and also liable to be cancelled.
4. Lastly, they prayed for declaratory decree.
5. 'Along with the suit, the appellants/plaintiffs moved an application for ad-interim relief, which was granted by the trial Court, but the same was vacated on the application of respondents/defendants vide judgment dated 4-8-2008. Feeling aggrieved by the aforesaid judgment and order of the learned District Judge, the appellants/plaintiffs filed an appeal before this Court.
6. ' Mr. Reaz Alam, the learned counsel appearing on behalf of the appellants vehemently contended that impugned order is patently illegal, arbitrary and against facts of the case. He maintained that agreement to sell creates no rights to the respondent/defendant No.
1. According to the learned counsel, when the initial transfer order was illegal and against the recognized mode of transfer, then subsequent transfers or transactions did not bestow any title to the transferees. He maintained that the Municipal Corporation was not lawfully justified to transfer the plot in dispute in favour of respondent/defendant No.1 on the basis of agreement to sell. The procedure or mode of transfer of plot is only governed by the relevant law dealing with the affairs of Municipal Corporation. The learned counsel further contended that when the legal heirs of the allottee were alive and present, then allotment or other rights attached with the plot in dispute could only be transferred to the respondents or any other person through making a statement before the authority. He maintained that none of the legal heirs of allottee has appeared before the relevant authority nor they made any statement regarding transfer of the rights or allotment in favour of Muhammad Siddique respondent No.1, therefore, all the steps taken by the Municipal Corporation were in violation of procedure as laid down in the Local Government Act and Rules thereunder. He argued that learned District Judge has wrongly vacated the status-quo order subject to furnishing of undertaking. According to him, when the respondents are not bona fide owners of the plot in dispute, then how, they could be permitted to raise constructions over the plot owned by the appellants/plaintiffs. The learned counsel has placed reliance on 2001 CLC 1502, PLD 2006 SC (AJ&K) 19 = 2006 CLC 1872 and 2005 SCR 368.
7. ' On the other hand, Mr. Muhammad Younis Arvi, the learned counsel for the respondents strenuously controverted the contention raised by the learned counsel for the appellants/plaintiffs and argued that appellants have miserably failed to make out an arguable case. According to the learned counsel, the plot in dispute was purchased by Muhammad Siddique respondent No.1 from Raja Muhammad. Aslam Khan predecessor-in-interest of the appellants and pro forma respondents for a consideration of Rs.9,000 and its possession was also handed over to the purchaser, who constructed the Basement and thereafter same was transferred to Muhammad Suleman, Sabir Hussain, Naseem Akhtar and lastly in the name of Tahir Mehmood respondent No.7 herein. Who after getting the site-plan from relevant authority completed the building over the plot in dispute but the appellants remained silent over it. Even otherwise, acceding to the learned counsel allottee was died about 15 years after selling of plot in dispute and he has never challenged the agreement to sell during his life time despite having the knowledge. The learned counsel further argued that Municipal Corporation has lawfully transferred the rights of allotment, whereas the proprietary rights have not yet been transferred in favour of last transferee. According to him, rights of allotment can be transferred on the basis of agreement to sell. Alternately, he maintained that learned District Judge was not legally justified to make an order to the respondent to furnish undertaking because there was no such legal requirement. But, even then, the respondent has submitted undertaking in compliance of order of the learned District Judge. Lastly, the learned counsel made a vehemence that appellants have failed to establish a case of interference by this Court. In support of his contention, the learned counsel has cited PLD 1987 SC (AJ&K) 93 and an unreported judgment of Honourable Supreme Court titled Ch. Shaukat Ali v.
8. Muhammad Javaid and others.
9. ' I have heard the respective arguments advanced by the learned counsel for the parties and perused the record very minutely and also gone through the reports cited by the learned counsel for the parties.
10. ' It is pertinent to mention here, that it is an admitted fact between the parties that agreement to sell dated 21-7-1971 was executed by Raja Muhammad Aslam Khan allottee in favour of Muhammad Siddique through his representative Ch. Muhammad Bashir Advocate, regarding plot in dispute. It is also admitted position that same plot was transferred by the relevant authority in favour of purchaser/respondent No.1 herein on the basis of above mentioned agreement to sell vide transfer order dated 6-4-2004. All the subsequent transfers were made by virtue of transfer order dated 6-4-2004. The appellants/plaintiffs have called in question all the transfer orders in their declaratory suit.
11. 'From the record available, it is also established that plot in dispute was in possession of last transferee i.e. Tahir Mehmood respondent No.7 herein, who after getting the permission from the relevant authority constructed 3 storeyed building over the above mentioned plot. According to the learned District Judge, external work of the building has been completed only internal work/ finishing is left.
12. ' No doubt, it is settled proposition of law, that agreement to sell does not bestow the ownership or declaratory decree cannot be granted on the basis of agreement to sell. But in the case in hand, factual position is altogether different. Only right of allotment was transferred on the basis of agreement to sell in favour of purchaser. Prima facie I am of the opinion, that relevant authority has the power to transfer the right of allotment on the basis of agreement to sell or through affidavit, because when the property allotted by the authority, its ownership also vests with that authority. In the instant case, proprietary rights have never been given to the allottee or transferees. My this view finds support from case titled "Ch. Shaukat Ali v. Muhammad Javaid and others" Civil Appeal No.61 of 2002 decided by the Honourable Supreme Court on 21-5-2003.
13. 'As far the plea of the appellants that agreement to sell had been revoked by the allottee (predecessor-in-interest) of the appellants and pro forma respondents is concerned, this is a question of fact, which can only be resolved after recording the evidence. This of course, would be decided by the trial Court in the suit at proper stage. Since, the plot in dispute is in the possession of the answering respondent Tahir Mehmood then, how, his peaceful possession could be disturbed such an early stage. Even otherwise, the learned District Judge has rightly observed that temporary injunction stands vacated, if the undertaking is furnished by the respondent/Tahir Mehmood that he would not claim any compensation in case the suit of the appellants succeeds.
14. The aforesaid view is fortified by the Apex Court in case titled Kh. Taufique Qadir v. Qazi Khalil-ur- Rehman and others 2001' YLR 3263.
15. ' Thus, in the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.