' The dispute in this case relates to agricultural land admeasuring 64 acres in Deh 202, Taluka Digri, District Tharparkar. This case of the applicant Syed Azad Ali admittedly is that be had taken the lease of this land from the first respondent Mohammad Yaseen, who is the owner of the land, by means of the Lease agreement dated 16-2-1976 for two years for which he paid the lease money in advance amounting to Rs, 3,000. Subsequently he filed First Class Suit No, 37 of 1978 in the Court of Senior Civil Judge, Mirpurkhas against the first respondent for recovery of Rs, 8,000 out of which Rs, 3,000 were the advance payment made by him and 5,000 being the amount of the penalty for breach of contract on account of failure of the first respondent to deliver the possession of the suit land. The applicant had pleaded in that suit that in spite of repeated requests the first respondent failed to deliver possession to him and also refused to return the lease money. An ex parte decree for the sum of Rs, 8,000 was passed by the Court on 34-1978.
2. The present revision arises out of another suit viz. F. C. Suit No, 145 of 1979 filed by the applicant against the present respondents and two others on or about 21-3-1979 in which the applicant contended that in spite of the Agreement of Lease entered into by the first respondent with him dated 16-2-1976, the said respondent leased out the land to the third respondent Liaquat Ali and gave possession of the land to him. He alleged that when he went to take over the possession of the land in pursuance of the aforesaid lease, some good men of the locality and the then Mukhtiarkar, Digri intervened and the first respondent agreed that he will deliver possession of the suit land to the applicant after the lease of the third respondent expires. An agreement was drawn up and executed dated 7-4-1977. It was in these circumstances, according to the allegations of the applicant that when the first respondent came to know on the expiry of the lease period of the third respondent, that a decree for money has been passed against him, that he delivered possession of the suit land to him. However, on 17-3-1979 the second respondent came up on the land and declared to the applicant that the first respondent had leased the land to the third respondent and demanded possession. He, therefore, prayed for a permanent injunction to restrain the respondents from interfering in his possession and also prayed for declaration that the alleged lease in favour of the third respondent was illegal. Along with the plaint the applicant also prayed for a temporary injunction. The trial Court by a perfunctory order dated 28-7-1979 ordered that status quo be maintained on the sole ground that there were conflicting claims in respect of the actual physical possession and there was no convincing evidence on record in support of the claim of either party.
3. The respondents challenged the aforesaid order in a Miscellaneous appeal before the learned District Judge, Tharparkar, who accepted the appeal and set aside the order passed by the trial Court by his judgment dated 18-10-1979. The applicant now seeks to challenge the aforesaid judgment by this revision application.
4. It is contended on behalf of the applicant that the Appellate Court below has failed to appreciate the case of the applicant and the evidence produced in support thereof which established a strong prima facie case. In this connection he first referred to the agreement dated 7-4-1977 referred to in the plaint which is Annexure '1' on the record of this revision. This document purports to be an agreement between one Mohammad Saleem. Claiming to be the first lessee of the suit land and the applicant: According to this agreement the first respondent had given lease of this land to Mohammad Saleem which was due to expire after Rabi Crop of 1978-79, yet the first respondent gave lease of the land during the subsistence of the first agreement to the applicant for two years by an agreement dated' 16-2-1976. The agreement, therefore, purports to be an arrangement between the two lessees whereby Mohammad Saleem agreed that upon the expiry of his lease he would hand over possession to the applicant so that the later can enjoy his two years lease from Kharif 1979-80 to Rabi 1980-81 on the strength of the original lease agreement executed by the first respondent. This document seems to be the sheet-anchor of the applicant's case, but prima facie neither the first respondent nor the third respondent is a party to this document. It is not understood how the lessee of the first respondent could bind the latter with an agreement executed by him. The next document on which reliance was placed on behalf of the applicant is an intimation issued by the Mukhtiarkar, Digri dated 6-5-1979 wherein the Mukhtiarkar certified that the applicant is in possession of the land and has cultivated the same. The learned District Judge rejected this document out of consideration as the Mukhtiarkar was not supposed to issue such intimation and there were no proceedings pending before him. It may be pointed out that the respondents had produced a certificate from the same Mukhtiarkar dated 19-1-1980 apparently on an application made by the third respondent in which the Mukhtiarkar/certified that on inspection of the site and on the statements of the respectable persons it was found that since Rabi 1979-80 the third respondent is in possession and enjoyment of the land.
5. The case of the respondents is that the first respondent has leased out the disputed land to the third respondent and one Mohammad Siddiq jointly. They claim that the possession has been handed over to the said lessees under an agreement dated 14-3-1979 which has been placed on record. They have denied that possession was ever delivered to the applicant. On behalf of the respondents my attention was invited to the fact that after obtaining money decree the applicant filed execution application No, 9 of 1978 on 24-8-1978 in which notice was issued to the first respondent. In these execution proceedings the applicant submitted application for appointment of receiver on 14-2-1979. The diary sheet of the execution case placed on record along with the counter affidavit as Annexure '0', shows that upon being served with a notice the first respondent submitted application under Order IX, rule 13, C. P. C. For setting aside ex parte decree passed against him to which objections were filed by the applicant on 19-5-1979. It was argued that in these objections the applicant never claimed to have received possession. In fact the contention is that if the applicant had been put in possession and was enjoying the lease he could not have put the money decree in execution, as apparently he cannot obtain refund of the lease money and the payment of the penalty and at the same time enjoy the lease. It was pointed out that the execution application was pursued until 8-11-1979 when it was dismissed for non-prosecution. On behalf of the respondents it was further pointed out that on 16-10-1980 the applicant filed yet another Suit No, 439 of 1980 against the respondents for recovery of Rs, 18,000 in which he complained of illegal removal of the wheat crop by the respondents and alleged that the respondents were attempting to remove the applicant from the lands. The argument was that this evidence of the fact that the applicant does not enjoy possession of the land.
6. After bearing the arguments of the learned counsel, I agree with the learned District Judge that the applicant has failed to establish prima facie case of lease in his favour or of his being in possession of the land. The respondents, on the other hand, have produced a lease agreement and also the land revenue receipts paid in the name of third respondent. It was argued by the learned counsel for the applicant that the Court cannot at this stage determine the question of possession. The contention has no force. Injunction cannot be granted on mere allegations without making out at least prima facie case of the right claimed by the applicant as to his lease and possession. The learned District Judge was right in coming to the A conclusion that in absence of any documentary evidence it was not possible to hold even prima facie that the applicant is the lessee of the land or is in possession thereof, especially in view of the fact that he obtained a money decree on the allegation that the lease agreement had been reached by the first respondent. On behalf of the applicant reliance was placed on Noor Mohammad v. Mohammad Hussain (1) in which it was held that Police reports filed by the parties subsequent to the date of suit cannot be made the basis for determining the question of possession on the date of suit. This judgment does not support the contention of the learned counsel and if at all it goes against the case of the applicant. The counsel has produced certified copy of the letter written by Assistant Executive Engineer, Digri Sub-Division to the Executive Engineer, Northern, Jamrao Division with reference to the complaint filed by the applicant in which some observation was made on the report of the Abdar that the applicant had raised crop on Survey. No, 53 to which water had been closed by one Amir Bux Khoso, but this document was apparently not produced before the trial Court and seems to have been obtained after the institution of the suit.
7. Finally, learned counsel for the applicant contended that the civil Court had no jurisdiction to entertain a dispute between the landlord and the tenant in view of paragraph 25 of the Land Reforms Regulation, 1972 (M. L. R. 115). This contention if at all hits at the very root of the first respondent as a landlord before the civil Court, but prima facie applicant's case, who had brought a dispute between himself as a tenant and the I do not find the proposition advanced by the learned counsel tenable in law. Paragraph 25 apparently extends protection to tenants meaning thereby the haris of the land and not lessees. The applicant does not claim to be the haris of the land and, therefore, prima facie paragraph 25 is not attracted to this case.
8. No other ground has been urged and no error of jurisdiction has been pointed out.
9. For the foregoing reasons, there is no merit in this revision which is accordingly dismissed with costs. {{FOOT NOTE}}
(1) 1978 SCMR 1 {{FOOT NOTE}}