Through the instant petition, the petitioner/plaintiff has challenged the validity of the order dated 22.12.2022 ("the impugned order") passed by the Qazi Jhalawani-I, Khuzdar ("the trial Court"), and order dated 16.02.2023 ("the impugned order") passed by the Majlis-e-Shoora, Khuzdar ("the appellate Court"), whereby, application filed by the petitioner/plaintiff under Order XXXIX, Rule 1 & 2 CPC was dismissed by the trial Court as well as by the appellate Court.
2. Briefly stated facts for filing the instant petition are that the petitioner/plaintiff filed a suit for declaration and permanent injunction against the respondents/defendants in respect of property/land Mosoma Gangi, situated in Mouza Kanj, Tehsil and District Khuzdar with the boundaries East-Mountain, West-Jhal Reko, North-lands of the petitioner and Respondent No. 6 and South-lands of Naik Muhammad under Khewat No. 22, Khatooni No. 22, Khasra Nos. 2, 3, 4, 5, 9 and 18, measuring 18 Rods, 20 Poles ("the property/land in question"), owned by the petitioner/plaintiff and respondent/Defendant No. 6 amounting to Rs. 24000/-. The suit accompanied the application under Order XXXIX, Rule 1 & 2 CPC for grant of stay. The respondents/Defendants No. 1,3 and 5 contested the suit by filing their written statement and rejoinder to the said application on legal as well as on factual grounds. After hearing arguments from both sides, the trial Court rejected the application under Order XXXIX, Rule 1 & 2 CPC vide impugned order dated 22.12.2022.
3. Being aggrieved and dissatisfied, the petitioner/plaintiff filed an appeal before the appellate Court, the same was registered and notices were issued to respondents/defendants. The respondents/defendants appeared through their counsel and after hearing arguments from both sides, the appellate Court dismissed the appeal of petitioner/plaintiff vide impugned order dated 16.02.2023, hence this petition.
4. Learned counsel for the petitioner/plaintiff inter alia contended that both the Courts below failed to appreciate material available before them; that admittedly, the petitioner/plaintiff has been in cultivating possession of the land in question, for long; that after family partition, the property in question came in his lot, but the Courts below failed to appreciate this aspect of the case; that the petitioner/plaintiff has prima facie case and balance of inconvenience lies in his favour; that both the Courts below failed to appreciate legal aspect of the case.
5. On the other hand, learned counsel for respondents/Defendants No. 1, 3 and 5 inter alia contended that the petitioner/plaintiff relied upon documents, which are neither registered nor attested; that one of the parties did not sign the alleged partition deed; that the ingredients of Order XXXIX, Rule 1 & 2 CPC tilt in favour of respondents/defendants, rather than petitioner/plaintiff.
6. I have heard learned counsel for the parties and perused the available record minutely with their able assistance. It has been observed that the respondents/defendants denied the petitioner/plaintiff's claim and claimed that they are real owners of the property in question. The petitioner/plaintiff relied upon the partition deed, which is admittedly neither registered one nor attested one. Perusal of the partition deed reveals that one of the parties did not sign the same. As per the contention of the petitioner/plaintiff, the said partition deed was affected ten (10) years back, but the petitioner/plaintiff failed to prove that on the said partition deed Revenue record was corrected. The petitioner/plaintiff has yet to prove that the alleged partition deed has been reduced into writing by producing evidence and it is settled by now, where the same fact(s) to be established required recording of evidence, a prima facie case cannot be presumed. Especially, when third party also claims right over the land in question. Subsequently, the first ingredient of the prima facie case for the grant of interim injunction is missing in this case. Besides the petitioner/plaintiff has failed to show that balance of convenience lies in his favour and as to how he will suffer irreparable loss, if temporary injunction is not granted in his favour.
7. Learned counsel for petitioner/plaintiff has failed to satisfy even this Court in respect of the existence of necessary ingredients for grant of temporary injunction under Order XXXIX, Rule 1 & 2, i e existence of prima facie arguable case, balance of convenience and irreparable loss or injury, as such, both the lower Courts rightly dismissed the application of petitioner/plaintiff for grant of interim injunction. Reliance is placed on the cases of "Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another" PLD 1970 SC 180 and "Amtul Batool and another v. Qamar Sultana" PLD 1980 Lahore 647.
8. Apart from the above facts, it is a well-settled principle of law that findings of facts concurrently recorded by the Courts below cannot be disturbed until and unless a case of non-reading or misreading of evidence is made out or gross illegality is shown to have been committed while appreciating the evidence. In my estimation, both the Courts below have evaluated the evidence in a legal manner and recorded the concurrent findings on fact which cannot be disturbed by this Court. In the case titled as "Muhammad Muneer and another v. Naveda Khalid" (2019 SCR 394), the Hon'ble Supreme of Pakistan has held as under: "..... Despite this admission, the evidence has been recorded and the trial Court has passed the decree after due appreciation of evidence, whereas, in fact, in view of the above reproduced admission in the pleadings, even no evidence was required. In this state of affairs, the judgments passed by the Courts below are quite in accordance with law, thus, the concurrently recorded judgments on question of facts do not call for any interference".
Reliance is also placed on the cases of Nazir Ahmed and others v. Ghulam Mustafa and others (2010 MLD 89) and Moulvi Muhammad Azeem. v. Alhaj Mehmood Khan Bangish and others (2010 SCMR 817).
9. Thus, in view of the above facts and circumstances learned counsel for the petitioner/plaintiff has not been able to point out any illegality or material irregularity in the impugned orders passed by the Courts below. Resultantly, the instant petition being devoid of merits, is hereby dismissed.