This is a revision under section 115 of the Code of Civil Procedure, against an appellate order of the learned District Judge, Dera Ismail Khan dated 12-9-1987 whereby he accepted the appeal of the plaintiff-respondent and set aside the order of the learned Civil Judge dated 29-9-1984 whereby he had refused a temporary injunction in a suit filed by the plaintiff-respondent No.l.
2. The facts relevant for the purposes of the present petition are that Obaidullah Khan, respondent No.7 herein, by means of six registered sale-deeds dated 9-3-1976 sold a vacant site measuring 2 kanals and 2 marlas in toto which had been described by boundaries to defendants 1 to 6. It appears that the vendees aforesaid started construction on the vacant site forming part of old Khasra No.2571 corresponding to new Khasra No.6441. Thereupon Sahibzada Mashooq Ilahi instituted a suit against defendants 1 to 7 for a declaration that he and proforma defendants 8 to 15 have matured their title to the plot forming part of Khasra No.6441 by prescription; that defendants 1 to 7 have got nothing to do thereto and; that defendant 7 had neither alienated this plot to defendants 1 to 6 nor he could legally transfer it. To them and that, therefore, the registered sale -- deeds were void and ineffective, qua the rights of the plaintiff and defendants 8 to 15.
3. Alongwith the plaint, ;the plaintiff put in an application wherein he had pleaded that defendants 1 to 6,were interfering with the possession of the plaintiff over the disputed plot by raising construction; that he had a good prima facie case; that the balance of convenience was in his favour and if the temporary injunction was not issued, he Would suffer irreparable loss and injury.
He pleaded that till the decision of suit---'a temporary injunction may be issued to the effect that defendants 1 to 6 should not interfere in the possession of the suit plot.
4. In the two sets of written statements, one by defendant No.7 and another jointly by defendants 1 to --, the suit was strenuously contended. In his written statement, defendant No.7 inter alia averred that the plot in dispute and the land underneath the house in occupation of the plaintiff and defendants belonged to him (defendant No.7) on the foot of a registered gift deed dated 24- 3-1945 and that the land underneath the house of the plaintiff was given to the father of the plaintiff who was 'Imam', of the mosque for construction of house just as a licensee. The defendants 1 to 6 in their joint written statement also adopted almost the same defence.
5. The defendants 1 to 7 put in replication to the application for temporary injunction wherein, besides reiterating defence taken up in their written statements, it was pleaded that plaintiff has got nothing to do with the suit plot. In this way, it was averred, that the plaintiff was not possessed of a prima facie case; that there was no question of balance of convenience or of irreparable loss being in his favour.
6. The learned Civil Judge, as stated earlier, had dismissed the application for temporary injunction on 29-9-1984. An appeal taken to the District Judge was earlier dismissed on 5-12-1984 on the sole ground that the plaintiff had failed to comply with the mandatory provisions of rule 3 of the Order XLIII, C.P.C. The plaintiff felt aggrieved against the aforesaid appellate order and challenged it in this Court in revision which was accepted on 23-7-1986 and the appeal was remanded to the appellate Court for deciding it on merits.
7. On behalf of the plaintiff-respondent, it was argued before the learned appellate Court that after the institution of the suit, the ensuing scrutiny revealed that the plan submitted by defendants Nos.
1 to 6 for the construction in the disputed plot had not been correctly approved and the Chairman Municipal Committee, D.1. Khan had rightly cancelled it. In consequence, Mst.Rashda defendant No.6 institute a suit before the Tribunal constituted under section 13 of N.-W.F.P. Act V of 1975 which had "passed an order of status quo". This argument found favour with the learned District Judge who held the view that since the plot in this suit and that before the Tribunal was one and the same, therefore, he ordered the maintenance of status quo in this suit as well. Hence this revision by the defendants-petitioners Nos. 1 to 6.
8. Sardar Allah Nawaz Khan Sadozai, the learned counsel for the defendants-petitioners, has raised the following points to show that they have no prima facie case:- (a)That the plaintiff-respondent whose case is based on adverse possession has no prima facie case as held in Chand Muhammad Mondal v. Fayyazuddin and others, PLD 1958 Dacca 435 that a trespasser cannot avail of relief of injunction as against a person having some legal title; (2)that the averments in the plaint revealed that the disputed plot was not capable of physical possession or otherwise was not in possession of any one, therefore, it is the rightful owner who should be presumed in possession thereof because possession of a vacant site or building naturally goes to the title-holder and rightful owner and in case of doubt the presumption always is that possession follows the title. Reliance was placed on Mohib Ali v. Amanullah 1981 CLC 251; (c)that in the replication tiled by the defendants-petitioners they had made an offer that the construction made during the pendency of the suit shall be at their risk and cost, therefore, the respondent was not entitled to the maintenance of status quo. In support of this contention, he referred to Fazal Begum v. Ejaz Ahmed 1985 SCM R 1928; (d)that the suit before the Tribunal was with regard to only 2-1/2 marlas of path with the width of 5 feet and, therefore, the learned District Judge had fallen into an error to pass status quo order for the whole area of 2 kanals and 2 marlas and lastly; (e)that the Appellate Court has not decided the appeal on merits but had been unnecessarily influenced by the suit pending before the Tribunal u/s 13 of the N.-W.F.P. Property (Removal of Encroachment) Act, 1977 (V of 1977) with a limited jurisdiction.
9. As against this, S.Zafar Abbas Zaidi, the learned counsel for the respondents argued that the learned Civil Judge who had refused to grant temporary injunction has ignored the fact that the possession of the plaintiff --respondent over the disputed plot has been admitted by the petitioners herein in their written statement and that the doors of the house of the plaintiff- respondent were admittedly opening into the plot in dispute. The learned counsel further submitted that there is no cavil with the proposition that the registered sale-deeds have sanctity to the extent of title of the vendor but in the instant case the plot sold by means of the registered sale-deeds dated 9-3-1976 could not be identified with the property covered by the registered gift deed of the year 1945. In this context, the learned counsel invited my attention to the fact that the property alienated by way of gift to defendant No.7 was described by boundaries and comprised of three houses and bungalow and not a vacant site whereas the plot in dispute is a vacant site and is admittedly part of khasra No.6441, which is Abadi Deh. The learned counsel argued that the plot in dispute had been gifted to the defendant-vendor No.7, the correct description given by Khasra No. And the boundaries corresponding to the present boundaries of the plot in dispute and also of Mohalla Noonarianwala should have been mentioned in the gift deed. In nut-shell, the contention of the learned counsel for the plaintiff-respondent is that since the plot in dispute could not he possibly identified with the property alienated by way of gift to defendant-vendor, he could not validly transfer the same by way of sale to the answering defendants-petitioners.
10. The crucial question falling for determination is as to whether the defendant-vendor No.7 has been able to bring on record any evidence to substantiate prima facie his claim that the plots which he had sold to defendants --petitioners Nos. 1 to 6 can be possibly identified with the property which has been gifted to him by the registered gift deed of the year 1945. My answer to the proposition, for the present, is in the negative. The defendant-vendor has not been able to prove at the moment that it was the same property which has been transferred to him as a gift by the registered gift deed of the year 1945.
11. Reverting to the case law cited at the bar, it may be observed that Chand Muhammad Mundal's case is distinguishable because in the competition between a trespasser having no manner of title and the defendant who has got some basis of title, the trespasser should not be entitled to injunction. In the instant case, the defendant-vendor has yet to prove that he has got some basis of title. The case reported as 1981 CLC 251 is also not attracted to the present case because there is no cavil with the proposition that when a property is not capable of physical possession or is in possession of any one then it shall be presumed to be in the possession of the rightful owner. In the present case the plot is admittedly in possession of the plaintiffs-respondents and that defendants-petitioners have yet to prove that they are the rightful owners of the plot in dispute.
The principle enunciated in 1985 SCM R 1928 is also not relevant for resolving the controversy in this petition. In case the petitioners-defendants are allowed to proceed with the construction, the plaintiff-respondent would not only be dispossessed of his possession, of whatever nature it be, but the street in which two doors of his house open would also be reduced to barely five feet width whereby he would be put to inconvenience.
11-A. The learned Civil Judge who has refused to grant temporary injunction to the plaintiff- respondent has not adverted to the question of other considerations, which are relevant for the purposes of granting temporary injunctions. These considerations, for example, are: (i) the conduct of the parties, (ii) the balance of convenience to one party and inconvenience to other party, (iii) irreparable loss and, (v) the existence of any other adequate remedy. In the instant case, I find from the documents placed on the record that the defendants-- respondents have prima facie not been able to prove that the vendor-defendant No.7 had valid title to transfer it to them on the strength of the gift deed of the year 1945 particularly when the identification of the plot in dispute and the property described in the aforementioned gift deed in favour of defendant No.7 could not be specifically made. It would thus be seen that the plaintiff-respondent No.7 was possessed of a prima facie case. Similarly by raising a wall just m front of the two doors of the house of the plaintiff-respondent opening in the street which would be reduced to five feet width would be a source of more inconvenience to him than the convenience to the defendants-respondents. Then at least in case of refusing the relief to the plaintiff-respondent would certainly effect adversely the order of status quo passed in the suit pending before the Tribunal qua the width of the street in dispute.
12. For the above reasons, I find all the ingredients. Necessary for the maintenance of status quo present in this case. I would, therefore, uphold the findings of the learned District Judge impugned in this revision. In consequence, this petition stands dismissed with no order as to costs.