ALI HUSSAIN QAZILBASH, J.--Amanullah Khan and others seek leave to appeal from the order of a learned Single Judge of the Peshawar High Court, D.I. Khan Bench, dated 19-3-1986, whereby the temporary injunction granted to them by the Senior Civil Judge, Bannu, on 21-6-1983, and upheld by the learned District Judge, Bannu, vide his order, dated 13-12-1983, was vacated.
2. The brief facts are that land bearing Khasra No. 1238 measuring 20 Kanals 9 Marlas situate in village Mira Khel Bannu is owned and in possession of the petitioners and respondents 4 to 19. In the year 1964-65, they made a Katcha path in the portion of the said Khasra for their own private use and for the use of their other houses situate adjacent to the said Khasra and in occupation of their tenants. Sometimes later on, however, they demolished the Katcha path which measured 1 Kanal 10 Marlas and included it in the rest of their land for agricultural purposes. Respondents 1 and 2, who had strained relations with the petitioners, resented this conversion and made a report to the local police who proceeded against the petitioners under section 133/142, Cr.P.C. And obtained a direction from the local Magistrate, on 2-6-1983 that the alleged unlawful obstruction be removed from the public path. A revision was filed by the petitioners before the learned Sessions Judge who, vide his order, dated 8-6-1983, though hinted that the path seemed to be a private ownership and could not come within the ambit of public path, yet he declined .To interfere with the order of the Magistrate. This order left no choice with the petitioners but to seek their remedy from the civil Court, where a suit seeking a declaration that the petitioners are the owners of the demolished path measuring 1 Kanal 10 Marlas in Khasra No. 1238 and that respondents 1 and 2 have no right whatsoever to interfere with their possession and that the entire proceedings under section 133, Cr.P.C. And orders made thereon were mala fide and without jurisdiction was instituted and a perpetual injunction was also sought for. Along with the suit, the petitioners also submitted an application for grant of a temporary injunction restraining respondents 1 and 2 from interfering with the suit property. This application was contested before the Senior Civil Judge by the respondents where their stand was that the disputed path was obtained by them from the petitioners in exchange and that it was in their possession. The learned trial Court, however, after going through the available record granted temporary injunction vide its order, dated 21-6-1983.
This order was challenged by the respondents by way of an appeal before the learned District Judge, Bannu, who vide his order, dated 13-12-1983 dismissed the same, but the respondents were successful in getting both the above orders reversed through a revision petition.
3. We have heard the learned counsel for the petitioners and gone through the judgments of the Courts below. The learned counsel for the petitioners has vehemently contended that both the learned trial and appellate Courts while considering the material on record concurrently held that the petitioners have made out a prima facie case for the grant of a temporary injunction and the balance of convenience also lay in their favour, therefore, in view of the concurrent findings of fact by both the Courts, the learned Judge of the High Court exceeded his revisional jurisdiction in reversing the above findings. We think that the above contentions have some force. We, therefore, grant leave in the matter. Security Rs.500. The appeal shall be heard on the present record with permission to the parties to file additional documents, if any. Ad interim stay is granted till the hearing of the appeal which should be fixed for hearing within three months.