' This Civil Revision is directed against order dated 20-5-1984 of learned Additional District Judge, Okara II, vacating on appeal, order dated 27-3-1984 of learned Civil Judge, Rana Shabbir Ahmad, issuing/ confirming temporary injunction prayed for on the lines in application moved by the plaintiff under provisions of Order XXXIX, rules 1 and 2 of the Code of Civil Procedure.
2. Facts necessary for the disposal of this civil revision, briefly stated, are that Ghulam Muhammad, plaintiff, filed a civil suit for declaration against Khushi Muhammad, and Town Committee, Hujra Shah Maqeem, through its Chairman, claiming that he was owner-in-possession of the land measuring 2 Kanals, part of land measuring 8 Kanals comprised in field No.7214 and that the two defendants be restrained from causing any interference with his possession over the land alleged to have been purchased by him from Khushi Muhammad defendant No.1. It was averred in the plaint that Ghulam Muhammad purchased land in dispute from Khushi Muhammad and constructed Kothas for his residence. Construction raised caved, in due to rains, in later years. With intent to re-build, a building plan was got approved from Town Committee, Hujra Shah Maqeem.
Plaintiff's attempt to raise construction in accordance with the approved site plan when resisted, brought him to civil Court. He then instituted a civil suit claiming the relief of declaration and injunction. Alongwith the plaint, an application under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure was also moved seeking interim relief to protect possession against threatened interference/ disturbance by the defendants. The defendants appeared and contested the suit through their separate written statements. It was stated by defendant No.1 that land measuring 1 Kanal and 12 Marlas only was sold by him to the plaintiff and the latter through fraud has come to occupy excess land i.e. 2 Kanals. Plaintiff's possession was admitted but was described in written statement as unauthorised. Town Committee, in its written statement stated that it had no objection whatsoever to the plaintiff's raising construction in accordance with the plan approved by it if the area of Gali thoroughfare was left out. Committee feared that the plaintiff wanted to encroach an area covered by Gali also. A separate written reply resisting application seeking interim relief was also filed by it. Learned Civil Judge vide order, dated 27-3-1984 issued a restraining order protecting possession of the plaintiff till the decision of the suit after holding his possession prima facie established. Defendant jointly filed an appeal in the Court of learned District Judge, Okara, wherein they challenged the order of learned Civil Judge whereby temporary injunction was issued. This appeal was entrusted for decision to the Court of learned Additional District Judge of the same District. Vide order, dated 20-5-1984, appeal was accepted, order passed by the trial Court was set aside and injunction order vacated. It was observed by learned Additional District Judge in his appellate order that in the absence of a proper sale-deed, showing title of the plaintiff to the land-in-dispute, and in presence of conflicting entries appearing in Khasra Girdawari, the plaintiff had no prima facie case to present. Balance of convenience, it was observed, did not lie on the plaintiff's side, and so was the case with regard to irreparable loss.
Order passed in appeal has been assailed by the plaintiff in revisional juris diction of this Court.
3. I have heard learned counsel for the parties and examined the record. It has been stated by learned counsel for the petitioner that plaintiff's possession over the land measuring 2 Kanals has been clearly admitted by Khushi Muhammad in his written statement. This admission on a question of fact is further supported by entry recorded in column 4 of the Register Haqdaran Zameen for the year 1982/83. It has also been admitted in the written statement that the plaintiff purchased only 1 Kanal 12 Marlas of land though he has occupied a piece of land measuring 2 Kanals. Whether or not the plaintiff will ultimately succeed to prove his title to the land on the basis of its alleged purchase from Khushi Muhammad can more appropriate be decided after issues and the evidence of the parties. At this stage in this state of pleadings, the plaintiff had a strong prima facie case. His possession was admitted even by defendant No.l. Learned counsel submitted that the plaintiff was entitled to hold on to his possession against any threatened forcible eviction/disturbance and was entitled to protection of his possession. Building plan was approved on the basis of possession and title to the land. Learned Additional District Judge, therefore, acted contrary to law and pleadings when he set aside the restraining order passed by the trial Court.
4. Learned counsel for the respondent Khushi Muhammad submitted that the plaintiff is not possessed of any document of title conferring rights of ownership upon him. Mere agreements to sell, said to have been executed in his favour, did not confer any title upon him in the absence of a decree passed in a suit for specific performance brought to enforce the said agreements. It has been stated that the plaintiff claims to be in possession of unspecified portion of land part of a larger field measuring 8 Kanals. Unless the exact extent of possession over a specified piece of land is not determined by the Court, temporary injunction protecting possession could not have been issued. The Court, therefore, should have first determined the actual possession as a site through a local Commissioner. Learned counsel also asserted that assuming possession to exist it was clearly unauthorised and a person illegally occupying land in the capacity of a trespasser was not entitled to ask for equitable relief of injunction. Plaintiff under cover of an approved plan had encroached upon a public street. The effects of this encroach ment upon public street were removed by Chairman of Town Committee acting under provisions of M. L.
0. 821.
5. It is true, that the petitioner is not entitled to raise and proceed with consturction to the land under cover of an injunction order issued or to be issued by the Court for that would be granting him the whole relief in the suit before it is heard and tried on merits. Possession, as stated, is admitted by defendant No.1 on land measuring 2 Kanals. Plaintiff, therefore, is entitled to protection of his possession till the whole controversy is decided by the civil Court. He, therefore, had a clear prima facie case. Disturbance/interference or his dispossession will not only render the suit infructuous but will also cause irreparable damage to the petitioner. General purpose of the law is that regardless of actual condition of the title to or right of possession of the property, the party actually in peaceful and quiet possession shall not be turned out by strong violence or terror. There is no provision of law which empowers by force or show of force to evict a person in actual possession of the immovable property. Therefore, when the plaintiff came to Court to seek protection of his possession against illegal interference by the defendants he was simply asking the Court to protect him against the use of any force at the instance of defendants to disturb his possession except in due process of law. This relief he was clearly entitled to under the law.
However, the plaintiff had no right to encroach upon any part of the area falling under public street vesting in the Town Committee. While going through the record, I feel that the Courts below have not determined the exact extent of possession. The area claimed to be in possession by the plaintiff forms part of a larger area comprised in field No.7214. Exact plan of the area in possession of the plaintiff was not produced before the Court. In this view of the matter, it would have been proper exercise of jurisdiction if the extent of possession on site was first determined with the help of a local Commis sioner. That would have removed all doubts. Civil Revision is accepted, orders passed by both the learned Courts below, are set aside, case is remanded for fresh disposal of application .moved under Order XXXIX of the Code of Civil Procedure. Learned Civil J-udge is directed to appoint a local Commissioner to find out the actual position on site and then to decide the prayer for grant of temporary injunction. Till then, the two defendants i.e. Khushi Muhammad and Town Committee, Hujra Shah Maqeem are restrained from interfering with the possession of the plaintiff.
However, this order will not apply to an area falling under street. Copy of this order be immediately sent to Civil Judge for taking further proceedings in the matter. No order as to costs.