The above titled revision petition has been directed against the order of learned Additional District Judge Muzaffarabad dated 29.08.2015 whereby while setting aside the judgment of the trial Court dated 04.10.2014, the stay order was confirmed.
2. Precise facts forming the background of the instant revision petition are that plaintiffs/respondents, herein, filed a suit for declaration-cum-perpetual injunction in the Court of Civil Judge Court No, II Muzaffarabad stating therein that Defendant No, 1. has got registered a sale-deed in respect of land comprising Khewat No, 69 min measuring 07 kanal 1 sarsai situated in Village Palhoter Tehsil & District Muzaffarabad on the basis of fraud. Along-with the suit an application for interim injunction was also submitted whereby it was stated that the defendants be restrained from interference or making any sort of improvements in the suit land. As per contents of application, if they succeeded to do so, then the plaintiff/applicant would suffer a greater loss.
The application was contested by the other side by filing objections whereby the averments of the application were refuted in toto and it was stated that Defendant No, 1 is the owner of impugned land as per registered sale-deed executed on 22.08.1998 and he had spent millions of rupees over the suit land and finally requested for dismissal of application. The learned Civil Judge in the light of pleadings of parties dismissed the application. Feeling aggrieved from the said order, appellants/respondents, herein, filed an appeal before the learned Additional District Judge Muzaffarabad on 09.10.2014. The learned Additional District Judge Muzaffarabad, after hearing the parties, while setting aside the order of the trial Court confirmed the stay order by restraining the Respondent No, 1 from interference/intervention or making any sort of improvements in the suit land, hence, this revision petition.
3. The learned counsel for petitioner submitted that the impugned order of learned Additional District Judge Muzaffarabad is against the law and facts. The respondents have executed the registered document in favour of defendant/petitioner in year 1998 and the suit has been filed after 16 years on 26.08.2014 after the prescribed period of limitation. The learned counsel further contended that the sale-deed was not only executed by Respondent No, 1, Mohammad Hanif and ascendant of other respondents but also one Rasheeda Bibi, neither she has been impleaded in the suit nor her legal heirs. He finally submitted that due to the 'impugned order a greater inconvenience shall be caused to the defendant/petitioner. The learned counsel stated the petitioner would not be able to utilize his land according to his own needs.
4. Conversely, the learned counsel for respondents submitted that defendant/petitioner is a very clever person, he was a Patwari and he committed misconduct in service and on the basis of his misconduct and other wrongful acts, he was expelled from service, on the other hand the respondents are simple persons and alleged vendor could not understand fraud of defendant as they are illiterate person and instead of mortgage-deed by-practicing fraud he got executed sale- deed which was not the intention of plaintiff. The learned counsel submitted that if the stay order is vacated the plaintiff would suffer an irreparable loss and their suit would become infructuous. In support of his version, Syed Shujahat Ali Gillani, Advocate referred the following authorities: 2004 SCR 318 2000 SCR 163 The non-impleading of one of the vendors Rasheeda Bibi, he submitted that as she has died and her whole share in the land she has transferred by way of gift deed in favour of plaintiff, therefore, she was not impleaded as party.
5. I have heard the learned counsel for the parties and perused the record of the case carefully.
6. Admittedly execution of the sale-deed dated 22.08.1998 is undisputed and the same is a registered document and it was executed in presence of two witnesses namely Mohammad Kabir and Mohammad Shabir as they have been shown as marginal witnesses in the document. The only version taken by the plaintiff is that in fact the plaintiff had agreed with the defendant, vendee to execute the mortgage deed and he fraudulently got it registered as a sale-deed. In my view, keeping in view the contention of the plaintiff, without going into the deep and detailed merits of the case, prima-facie, it does not appear me to a good and strong case. Why the plaintiffs had kept mum over the matter for a long period of 14 years and have not come into the Court particularly when they have admitted the execution of the deed and on the basis of sale-deed a mutation was also attested and the revenue record shows the entries as such. These facts are yet to be explained by the plaintiffs.
7. Furthermore, admittedly the possession of the suit land is of the defendant and presumption of correctness is attached to the registered document. Therefore, in my opinion, if the stay order is continued the defendant/petitioner would suffer a greater inconvenience, thus, the balance of convenience also does not lie in favour of defendants/respondents and in case of vacation of the temporary injunction there is no likelihood of any irreparable loss to the plaintiffs. These aspects of the case have not been considered by the learned Additional District Judge Muzaffarabad.
8. As far as the contention of the learned counsel that the defendant/petitioner was expelled from service due to his misconduct, has no even remotely relevancy with the civil suit, so is hereby repelled. The authorities referred by the learned counsel for respondents are not applicable in the instant case due to distinguishable facts.
Therefore, in the light of what has been stated above, by accepting the instant revision petition, the impugned order of learned Additional District Judge Muzaffarabad dated 29.08.2015 is hereby set- aside.