Through this constitutional petition, Muhammad Rafique, the petitioner has called in question the orders dated 28.09.2022 and 02.11.2022 passed by both the courts below, whereby in a suit for specific performance of agreement to sell dated 23.07.2020, stay application filed by the petitioner has concurrently been dismissed.
2. It is contended by learned counsel for the petitioner that the petitioner had got strong prima- facie case in his favour; that the petitioner vide agreement to sell dated 23.07.2020 purchased the suit property from respondent No. 4/Muhammad Sharif, who is his real brother and paid an amount of Rs. 58,50,000/- out of total sale consideration of Rs. 60,00,000/- and obtained possession of the same; that respondent No.3/Mst. Safia Bibi, who is wife of respondent No.4 deceitfully got transferred the suit property from respondent No.4 to her name, which aspect of the matter has not been given due consideration by the courts below while dismissing the application filed by the petitioner for interim relief.
3. Heard. Record perused.
4. It is noticed that the petitioner has filed his suit on the basis of agreement to sell dated 23.07.2020 by claiming his possession over the suit property in terms thereof. Admittedly, both the defendants/respondents No.3 and 4 are husband and wife, whereas the petitioner and respondent No.4 are real brothers inter se. The claim of the petitioner is that vide agreement to sell dated 23.07.2020, he purchased the suit property from the respondent No.4 in consideration of Rs.60,00,000/-, out of which, Rs.58,50,000/- were paid by the petitioner and possession of the suit property was obtained in terms thereof. The stance taken by respondent No.3 is that through gift mutation No.1983 dated 10.09.2021, respondent No.4 got the suit property transferred in her name and possession of the suit property was handed over to her. It is noticed that the petitioner has placed on the record photocopy of the agreement to sell in his favour, which is not written on a stamp paper rather on plain paper. Although, respondent No.4 conceded petitioner's claim and recorded statement in his favour yet both the courts below have concluded that the factum of recording of conceding statement by respondent No.4 in favour of the petitioner prima facie seems to be result of collusiveness which cannot be treated as conclusive proof in terms of Article 113 of the Qanun-e-Shahadat Order, 1984 and may only be treated as estopple against respondent No.4 in terms of Articles 45 thereof and the same could not be used against respondent No.3 who claims to hold property under valid mutation recorded in her favour; besides, the evidentiary value of the agreement to sell dated 23.07.2020 and conceding statement recorded by respondent No.4 are yet to be determined after fair trial of the case keeping the same in juxta position with gift mutation No.1983 dated 10.09.2021 in favour of respondent No.3 especially when claim of both, the petitioner and respondent No.3, is that the other party is trying to deprive them from the suit property in connivance with respondent No.4. The claim of the petitioner is based on an agreement to sell whereas respondent No.3 has a mutation recorded in revenue record in her favour. In view thereof, as the petitioner has yet to establish the afore-referred agreement to sell by recording of evidence, therefore, prima-facie case cannot be assumed in his favour. Besides merely being in possession of the suit property could not be made a basis to equip the petitioner with injunction for an indefinite period, unless the right to continue to hold the said possession under some legal right is established on the record. Reliance is placed on 2004 SCMR 1111 (Muhammad Ali vs. Mahnga Khan) and 2018 MLD 958 (Muhammad Ahmad Farooq and another vs. Province of Punjab through Member Judicial-VII, BOR, Punjab Lahore through DCO/Collector District Sahiwal and 12 others).
5. Furthermore, the part payment of sale consideration is also yet to be established by leading evidence and the petitioner has to prove how such huge amount of money was transferred in the name of the respondent No.4 without any corresponding supporting document except agreement to sell written on a plain paper in his favour. Moreover, the petitioner has yet to establish that how he would suffer an irreparable loss if interim relief is not granted especially in view of the circumstances that his rights are already protected under the principle of lis pendens.
In view of the above, this Court has reached the conclusion that ingredients for grant of temporary injunction that are prima-facie case, balance of convenience, suffering of irreparable loss are not available in the case for allowing application for interim relief, which was rightly dismissed by the courts below, which findings being based on proper appreciation of record and in accordance with law are well founded and do not warrant any inference by this Court.
6. For what has been discussed above, this constitutional petition being devoid of any merit stands dismissed in limine. However, the learned trial court shall decide the main case without being influenced by any of the afore-referred observation.