This revision is directed against the judgment dated 5-6-1978 delivered by the learned Additional District Judge. Lahore.
2. The facts necessary for the purposes of this revision, briefly stated, are that the petitioners- plaintiffs instituted a suit for declaration and permanent injunction in the Court of a learned Civil Judge, Lahore against the respondents. In this suit, plaintiff No. 1 and plaintiffs Nos. 2 to 7 prayed for a declaration to the effect that petitioner-plaintiff No. 1 was the owner of the land in dispute to the extent of 12 kanals, 11 marlas and 175 Sq. Ft., whilst petitioners-plaintiffs Nos. 2 to 7 were the owners to the extent of 7 kanals 1 marla and 149 Sq. Ft. With the consequential relief by way of a permanent injunction to restrain the defendants from interfering with possession and rights of the petitioners in the said land in any manner whatsoever.
Along with the plaint the petitioners-plaintiffs also made an application under Order XXXIX, rules 1 and 2, C. P. C. For temporary injunction.
3. The suit as well as the application for temporary injunction were resisted by the respondents.
4. On the pleadings of the parties, 11 issues, including that of relief, were framed by the learned trial Court.
5. Initially, the learned trial Court granted an ad interim injunction as well.
6. By order dated 12-1-1978, the learned trial Court while deciding the application for temporary injunction not only rejected the same but also dismissed the suit of the plaintiffs-petitioners.
7. Feeling aggrieved the petitioners preferred an appeal to the learned Additional District Judge, Lahore, who by his judgment dated 5-6-1973 accepted the appeal against the order of the learned trial Court to the extent of dismissal of the suit but maintained the order so far as it refused the issue of temporary injunction in favour of the petitioners.
8. Feeling dissatisfied the petitioners have come up in this revision against the later part of the judgment of the learned Additional District Judge by which he refused to issue the temporary injunction.
9. The learned counsel for the petitioners contended :- "Firstly, that the learned lower Appellate Court has erred in law in holding that the petitioners did not have a prima facie case. He contended that not only the (Mutation No. 865 dated 274 1-1925 by which petitioner No. 1 had gifted the land in dispute in favour of Malik Muhammad Hasan from whom the respondents derived title) contained the recital that it was intended for the purposes of Lambardari of Malik Muhammad Hasan the donee but also there wa3 an acknowledgment of this fact by later writing of the said Malik Muhammad Hasan such as arrangement dated 5-10-1970 showing petitioner No. 1 as owner of 1/5th share out of the inheritance of their father late Shah Muhammad which 1/5th could only be constituted after including the land gifted away to Malik Muhammad Hasan by petitioner No. 1 vide the mutation aforementioned, which arrangement in writing was duly signed not only by Malik Muhammad Hasan but also by respondent No. 2. He also referred to an acknowledgment signed by Malik Muhammad Hasan showing that he passed on the share of compensation to petitioner No. 1 regarding the land in dispute on 14-10-1953. The learned counsel in the context of the above position contended that the learned lower Appellate Court did not refer to these later written acknowledgments which were sufficient when read conjunctively with the mutation to show that the petitioners have at least an arguable case ; Secondly, that the jamabandi shows the petitioners as owners in possession and that although khasra girdawaris in the face of record-of-right such as jamabandi have no value even those show the petitioners in possession along with Malik Muhammad Hasan and that a contrary observation in the impugned judgment that the petitioners were not shown in possession in the khasra girdawari of Rabi 1976 was incorrect. Elaborating his contention the learned counsel contended that it is the admitted position that the land inherited by the petitioners and respondent No. 2 etc. From their late father Malik Shah Muhammad was never partitioned and as such all the petitioners as well as other heirs of Malik Shah Muhammad had been in joint possession of the whole of the agricultural land which position is reflected in the khasra girdawari of 1976 as well by showing that they were in possession of the land in dispute under the term ", I Thirdly, that the learned lower Appellate Court by holding in paragraph 6 of the impugned judgment that the hiba of the property in dispute was conclusive and that the condition if any attached thereto would be ineffective had gone beyond the scope within which the matter should have been retained while deciding the application for temporary injunction as such an observation effects the merits of the case and is likely to cause prejudice to the case of the petitioners ; and Lastly, relying on Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan and 7 others reported as PLD 1975 Lah. 492 the learned counsel contended that in somewhat similar circumstances it was held that in order to avoid multiplicity of proceedings in cases where the property in suit is prima fancie jointly owned by parties temporary injunction should be issued to avoid impleading of strangers to the proceedings of the suit."
10. On the other hand, the learned counsel for the respondents argued that since both the Courts below have come to the conclusion that the petitioners do not have any prima facie case and have also given a finding adverse to the petitioners as to their possession over the land in dispute this Court in revisional jurisdiction should not interfere with the orders of the court below as the orders impugned are neither without jurisdiction nor do they/ suffer from any illegality or material irregularity. He relied on Abdul Majid v. Khalil Ahmad (1), to contend that concurrent findings by the courts below were not even interfered with in second appeal what to say in revisional jurisdiction.
Reliance was also placed by the learned counsel on S. Zafar Ahmad v. Abdul Khaliq (2), to support the above contention.
11. Having given consideration to the controversy involved I find that there is force in the contentions raised on behalf of the petitioners. It is a well-settled principle that in order to succeed in an application for temporary injunction the petitioners do not have to establish their case conclusively but what is required of them is to show that they have an arguable case: Out of the pleadings of the parties as many as eleven issue were flamed which revolve around the controversy of the fact regarding ownership of the land in dispute. It is also the admitted position that the land in dispute is an un-partitioned parcel consisting of a large number of khasra numbers and that excepting respondent No. 1 the parties derived title by inheritance from their common ancestor late Malik Shah Muhammad. In such a situation it would obviously be conducive to the interest of justice and to avoid multiplicity of proceedings that a temporary injunction be issued as prayed for by the petitioners on the basis of the principle laid down in PLD 1975 Lah.492.
12. Needless to mention here that by reference to documents such as the jamabandis, the khasra girdawaris showing Malik Muhammad Hasan etc. As persons in possession even up to 1976, the written arrangement dated 5-10-1970, and acknowledgment of payment dated 14-1 -3-1953 by late Malik Muhammad Hasan the petitioners have been able to show the existence of an arguable case.
13. As regards the balance-of-convenience, suffice it to say that it will be in the interest of all the concerned parties that injunction should be issued as prayed for by the petitioners to avoid induction of strangers to the litigation and to avoid multiplicity of proceedings that may result thereby. I would suffice by the above observations in holding that the impugned judgment of the learned Additional District Judge dated 5-6-1978 to the extent it refused issue of injunction in favour of the petitioners cannot be maintained as further discussion on the matter may bring in its wake any observation which may effect the merits of the case and present is not the stage to do so as any observation by this Court of whatever tentative nature it may be, may not prejudice the case of either party. It is always desirable to avoid detailed discussion on merits of the case while disposing of applications for temporary injunction or passing any interlocutory orders.
14. In view of the foregoing discussion, accepting this revision an setting aside the orders of the Courts below I would allow the application ofthe petitioners for temporary injunction.
There will, however, be no order as to costs.
(I) PLD 1955 FC 38 .(2) P L V 1964 KAr. 149
15. The learned counsel for the parties have informed me that the Presiding Officer of the trial Court seized of the matter after disposal of the appeal by the learned lower Appellate Court has since been transferred. The case is therefore, entrusted to the Court of Mr. Saleem Qureshi, Civil Judge, Lahore for disposal in accordance with law with the direction to finally dispose of this case within four months from the date of receipt of the file. He shall report progress in this case to the learned District Judge, Lahore every month. The parties shall appear before the learned trial Court on 12-5- 1982.
16. Office shall ensure that the record of the lower Court is transmitted to the Court of Mr. Saleem Qureshi, Civil Judge, Lahore at once.