' MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal with the leave of the Court arises out of the order of the High Court dated 27th September, 2008, whereby Revision Petition No,284, of 2006 has been accepted.
2. Facts necessary for the disposal of instant appeal are that the appellant herein filed a suit for perpetual injunction against Razia Begum, respondent herein, in the Court of Civil Judge Bhimber in respect of land comprising Khewat No,106, Khata No,3742/3131, Survey No,4836, measuring 9 kanals, 4 marlas, new Survey No,2133, measuring 1 kanal, No,2133-min, measuring 11 marlas and No,2135, measuring 7 kanals, 7 marlas, situate in village Jand-Pir, Tehsil Barnala, District Mirpur. It was prayed by the plaintiff-appellant that the land in dispute is under his possession and ownership and the respondent has no concern with the same. Along with the suit an application for status quo was also moved, which was allowed, but on the application from the other side, the status quo order was vacated vide order dated 29-3-2006. The appeal filed by the appellant before the District Judge Bhimber was partly accepted. A revision petition was filed by the respondents herein before the High Court against the order of District Judge, Bhimber, which was accepted vide impugned judgment.
3. Ch. Muhammad Mehfooz the learned counsel for the appellant, argued that the judgment of the High Court is against the law and not maintainable. The appellant is a co-sharer and in possession of the land. It is settled principle of law that without partition of shamilat-deh land, no one can dispossess any co-sharer from his exclusive possession and the learned High Court has not taken into consideration this important fact while deciding the revision petition. He referred to a case reported as Fojdar Khan and another v. Azad Government and others 2001 CLC 920.
4. While controverting' the arguments, Ch. Muhammad Suleman, the learned counsel for respondent No,1 argued that the judgment of the High Court is perfectly legal. The trial Court recorded detailed reasons for vacating the stay order. The District Judge illegally interfered with the order of trial Court and the High. Court correctly accepted the appeal and cancelled the stay order issued by the District Judge. While relying upon section 9 of the AJ&K Grant of Khalsa Waste Land as Shamilat Deli Act, 1966 (hereinafter to be referred as the Act), he argued that the stay order cannot be issued by the civil Court in respect of shamilat-deh land. He requested for dismissal of appeal.
5. We have heard the learned counsel for the parties and perused the record. The record reveals that the appellant filed a suit for perpetual injunction against the respondents regarding shamilat- deh land bearing Survey Nos.4836 '(old), 2133, 2133-min and 2135 (new), situate in village Jand-Pir, on the ground that they shall refrain from interfering with his possession. It was also prayed that the official respondents, Tehsildar Barnala, Naib Tehsildar Barnala, Girdawar Circle and Patwari Halqa Jand-Pir, Tehsil Barnala, shall refrain from ejecting the plaintiff from shamilat-deh land. The plaintiff filed application for stay order and got status-quo Order subject to objections. Respondent No,1 filed application for vacation of stay order on the ground that previously a suit in respect of same land was filed in the trial Court by the plaintiff, which was dismissed on 24th 2004 and appeal before the District Judge was dismissed on 5th January, 2005 for non-prosecution. It was further alleged that Barnala on 20th March., 2001 had ordered for ejectment of plaintiff. The learned civil Judge vacated the stay order on the grounds that the previous suit was rejected by the trial Court, appeal from the said order was dismissed for non-prosecution, the plaintiff is estopped from challenging the eviction proceedings and that the Survey No,2133-min is reserved for common purposes. The High Court restored the judgment of trial Court on the ground that the competent Court had already determined the rights of the parties in the previous litigation. It may be observed that for issuance or vacation of a stay order three necessary ingredients have to be considered by the Court; i,e, prima facie case, balance of convenience and irreparable loss. It is not necessary that the plaintiff shall prove that he will succeed in the case in all circumstances. He has to establish only a prima facie case. If a prima facie case is established, then the other two ingredients are looked into. This Court in a case titled Muhammad Rasab and another v.
Muhammad Siddique Chaudhry 1998 M LD 2045 observed as under:-- "7. On the basis of aforesaid report submitted by Local Tehsildar, prima facie the khasra number sold by, respondent to the appellants appears to' be Khasra No,2186/2. Therefore in our view at the stage of grant of interim relief the plaintiff need not establish his title to the suit property as it is not necessary for the plaintiff to show that he must succeed in ihis suit. The plaintiff is only to show that he has a good arguable case. In other words it would be sufficient for the plaintiff to show that he has a fair question to raise as to existence of his right and that till the' question is ripe for trial, a case is, made out or preservation of property in status quo. The Court is not expected to examine the merits of the case closely. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising .The jurisdiction the Court does not profess to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and needs the aid of the Court for the protection of the legal right until the legal right is finally ascertained. Thus the Court has only to look on the nature and difficulty of points which may arise in the case and not on the merits of the case. It is not necessary that the Court should find a ease which entitles the plaintiff to succeed at all events."
6. In the present case the plaintiff alleged that he is member of proprietary body in the village and a sharer in the shamilat-deh land. He alleged that he is in possession of Survey No,2133, 2133-min and 2135-min, old Survey No,4836, total measuring 9 kanals, 4 marlas, and constructed a boundary wall in the land. In the application for vacation of stay order, the defendants-respondents claimed that the previous suit with regard to the suit land titled Muhammad Hashim and others v.
Muhammad Shafi has already been dismissed. The plaintiff is estopped from filing a fresh suit. It was nowhere the case of the defendants-respondents that the land falling in disputed survey numbers is shamilatdeh, reserved for common purpose. The trial Court vacated the stay order on the ground that the previous suit was dismissed and the shamilat land is reserved for common purpose. The High Court restored the said judgment. It appears that the learned Single Judge in the High Court has not considered- the necessary ingredients for issuance of stay order. From the record, the plaintiff-appellant appears to be in possession of aforesaid survey numbers. It has yet to be established whether the said survey numbers fall in shamilatdeh reserved for common purpose or not. Till that time a good prima facie arguable case appears in favour of the appellant.
It also appears strange that while recording judgment, the trial Court has held that D.R.C. Has ordered for eviction of plaintiff-appellant. The D.R.C. Has nothing to do with the shamilat-deh land.
When the appellant has got a good prima facie arguable case, then the other two necessary ingredients have to be seen. When a good prima facie case is established by the plaintiff and in .Such eventuality he is C evicted from the land irreparable loss will occur to him. Since the plaintiff- appellant is in possession of land, the balance of convenience also appears in his-favour. He is entitled to remain in possession.
7. We have also considered the argument .Of Ch. Muhammad Suleman, the learned counsel for respondent No,1, that the civil Court has no jurisdiction to issue a temporary injunction under section 9(2) of the Act. We have gone through the said provision of law. Subsection (1) of section 9 of the Act postulates that no civil Court shall have jurisdiction on any such matter which the Government or any Revenue Officer is competent to dispose of under this Act. The section further lays down that the civil Court shall not take cognizance of any matter in which the Government or any Revenue Officer exercises powers vested in it or in him under this Act or under Government Order No,282/57. Subsection (2) of section 9 of the Act postulates that the Civil Court shall not be competent to issue a temporary injunction in respect of any matter referred to in subsection (1) restraining the Government or any Revenue Officer from taking any ejectment proceeding. A perusal of section 9 of the Act leaves no doubt that the jurisdiction of the Civil Court is barred in certain matters and the temporary injunction cannot be issued against Government or any Revenue Officer restraining from ejectment proceedings conducted under the aforesaid Act. Under subsection (9) of section 5 of the Act a landowner in possession of any portion of Nautor in excess of his share shall be liable to summary ejectment by any of the officers mentioned therein, but the question in the instant case is whether the plaintiff is in possession of any portion of Nautor in excess of his share or not which can only be resolved through regular trial of the suit. If ultimately it is determined that the land in possession of plaintiff-appellant herein is not a shamilat-deh land reserved for public purpose and it is not a part of Nautor in excess of share of plaintiff in shamilatdeh and he is evicted from the land, then he will suffer irreparable loss. In a case reported as Fojdar Khan and another v. Azad Government and others 2001 CLC 920 it was observed as under:-- ".... Thus, there is no dispute between the parties that the land which is in possession of the appellants is 'shamilat deh' land. There is hardly any quarrel with the proposition that all the owners in the estate are co-sharers in the 'shamilat deh' land. Thus, a co-sharer in `shamilat deh' land who is in possession of the same in excess of his fractional 'share cannot be ejected therefrom without the partition of the same by metes and bounds. A reference may be made to the cases reported as Ahmed Miaji v. Eakub All Munshi [PLD 1961 Dacca 259], Muhammad Muzaffar Khan v.
Muhammad. Yusuf Khan [PLD 1959 SC (Pak.) 9], Feroze v. Sher [PLD 1985 SC 254] and Muhammad Zubair v. Syed Zakir Hussain Shah [1996 CLC 275] in support of aforesaid view. Mr. Imdad Ali Malik, the learned counsel for respondent No,5, has lost sight of the fact that it has never been the case of the respondent that the land in dispute which was in possession of the appellants was reserved for common purpose of the village as stipulated under section 5(3) of the ShamilatDeh Act, 1966 which postulates that when rights of 'shamilat deh' land are granted, 20% area is to be reserved for common purpose of the villagers, which will be managed by the Union Council. Obviously, this is a new stand which the learned counsel has taken to justify the ejectment order passed against the appellants. It is well-settled principle of law that a party cannot be permitted to take a different stand from one which such party has originally taken; there is no evidence either to the effect that 'shamilat deh' land which is in possession of the appellants was reserved for common purpose of villagers as stipulated under subsection (3) of section 5 of the said Act. Thus, the contention of the learned counsel for the respondent that the appellants were liable to be ejected under subsection
(9) of section 5 is an afterthought which does not help the respondent, especially so when the ejectment order was not made under the aforesaid provisions."
The possession of plaintiff-appellant is proved from the record. The order for ejectment has not been passed under section 5(9) of the Act. A good prima facie arguable case appears in his favour and if he is evicted from the land, he will suffer irreparable loss. Balance of convenience is also in his favour.
8. The result of above discussion is that this appeal is accepted. The judgment of the High. Court is set aside and that of the District Judge is restored with further direction that the plaintiff-appellant shall not raise any construction in the land. The parties shall maintain status quo till the disposal of suit.
9. Before parting with the case we show serious concern to the fact that the suit was filed in the year 2006 and a period of about six years has elapsed, but the same is still at preliminary stage.
The trial Court is directed to decide the original suit within six months from the receipt of record by this Court.