Dr. Khurshid lqbal. J.-
1. The petitioner has assailed the judgment of learned Additional District Judge of Tehsil Takht-e- Nasrati, District Karak, rendered on 26.05.2023, whereby the appeal of the respondent was accepted and the order dated 17.02.2023 of the Civil Judge by which temporary injunction was granted in favour of the petitioner, was set-aside.
2. On the basis of a document, dated 12.04.2004, titled as "Tasdeeq Nama", the petitioner has brought a suit for declaration, specific performance and possession of the land measuring 05- Kanals and 17-Marlas, situated in Khasra numbers mentioned in the head-note of the plaint. He contends that he and the respondent belong to the same family being cousins inter-se; that in the year 2004, he has purchased the disputed land from the respondent on the basis of the afore- mentioned document. He further contends that he has paid the alleged sale consideration of Rs.235,000/- to the respondents in the presence of as many as five witnesses whose names have been mentioned in the document. He has asserted that in connection with his service in a Government Department, he would seldom visit his home town after the execution of the document. When about 02 months before institution of the suit, he approached the Patwari Halqa, he found that the respondent has not attested mutation in his favour.
3. Along with his plaint, he submitted an application for temporary injunction for restraining the respondent from alienation of the disputed land. His application was accepted by the trial court, which the appellate court dismissed by the impugned judgment.
4. The respondent was put on pre admission notice. Arguments of Haji Umer Daraz Khan, learned counsel for petitioner, and Mr. Muhammad Naeem Khan, learned counsel for respondent, were heard and record perused.
5. The case of the petitioner hinges on above referred "Tasdeeq Nama" dated, 12.09.2004, drawn on a plain paper. The document shows that the respondent has received from the petitioner Rs.235,000/- in the presence of the witnesses mentioned therein, in lieu of the land @ Rs. 40,000/- per marla, situated in Ponr in Takht-e Nasrati, District Karak, and that mutation will be attested at an appropriate time.
6. Learned counsel for the petitioner stated that firstly, both the parties are close relatives.
Secondly, the respondent, as per the revenue record, (copies available on the record) is shown in possession of a lesser area of the land than his due share, which, as per his assertion, suggests that he has delivered possession to the petitioner. Be that as it may, the "Tasdeeq Nama" does not show Khata and Khasra numbers, the area of the land in question and the delivery of its possession to the petitioner. Hence, there exists neither a prima-facie case, nor does the balance of convenience tilt in his favour. The petitioner has yet to prove his case on the basis of the "Tasdeeq Nama". The question of irreparable loss in the absence of an injunctive order does not arise. Indeed, the document, in whatever form it may be, has never been presented before the authority concerned for transfer of the land in favour of the petitioner.
7. A similar question was considered by the Lahore High Court in Mst. Rasheed Bibi V. Muhammad Arshad and others, 2020 MLD 1875[Lahore(Multan Bench)]. In this case, the petitioner, the third wife of the respondent, brought a declaratory suit that she is owner in possession of certain land on the strength of a gift deed executed by the respondent No.1 in her favour. Later on, it came to light that the respondent No.1 had transferred the land in favour of his second wife by means of a gift mutation. While dismissing the plea of passing an injunctive order, the learned court observed:- The petitioner in order to succeed in her application for grant of interim relief was required to show some prima fade case in her favour. Her claim is based on a gift deed allegedly executed between the parties which has never been produced before any competent authority for the purpose of transferring the property in favour of the petitioner and the genuineness of the said deed is required to be established by recording evidence, whereas respondent No.2 has been transferred the suit land through mutation No.1536 in the revenue record on 17.03.2018. It is established by now that where a document, on the basis of which a party claims relief is required to be established by recording of evidence, prima facie case cannot be presumed. Thus the petitioner has not been able to establish any prima facie case in her favour. Besides balance of convenience is also not in favour of the petitioner as her claim is based on unregistered document against the claim of respondent No. I who was previous owner and respondent No.2 who claims to be the owner through aforesaid transfer mutation. Moreover, the petitioner has not been able to establish how she would suffer irreparable loss in case stay is not granted.
8. It is worth observing that in the above cited case, the claim was based on a formal document in which a specific area of land was mentioned. The case in hand is at a lower pedestal.
9. A similar view was expressed in Mubarak Mai and others V. Additional District Judge, Khanewal and others, 2020 YLR 1875 gahore(Multan Bench)], the relevant portion is as under:- Where evidence is to be recorded to substantiate the claim, prima facie case cannot be presumed. Besides the petitioners have failed to prove that balance of convenience lies in their favour and as to how they would suffer irreparable loss if stay is not granted in their favour, especially when the suit property is owned jointly by the parties as legal heirs of Allah Ditta and not exclusively owned by them in the record In these circumstances, when ingredients for grant of temporary injunction were missing, the concurrent decisions of learned Courts below do not suffer from any illegality or jurisdictional defect. Consequently both the Courts below were justified in declining the application of the petitioner for interim relief and order and judgment passed by them are well founded which warrants no interference by this Court, hence the instant writ petition is dismissed.
10. In the wake of above discussion and legal principle, the instant revision petition is found as devoid of merits. It is, therefore, dismissed. However, this judgment shall have no bearing on the merits of the case.