The two petitioners, claiming themselves to be the joint-beneficiaries of grant of state-land ostensibly made in the name of their third brother Faqir Muhammad, the respondent herein; brought a suit for permanent injunction to restrain their eviction there from and, in the alternate, for possession through specific performance of agreement stated to have been made by him in recognition of their title in the land in continuation of a number of admissions made by him with regard to their investment and outlay in the suit-land. Therein they also moved an application for grant of a temporary injunction to the same effect. Although a written-statement did not seem to have been filed by the respondent, yet, he filed a written-reply to the application and controverted the averments made therein side by side with raising a few technical objections and described the prayer of the applicants to have been motivated by the desire of thwarting a warrant issued for their eviction from the land. By his order dated 2--2-1984, the trial Judge proceeded to reject the prayer on the premises that their possession .Of the land is unauthorised and they do not have any prima facie case to urge inasmuch as they will not be entitled to be granted the relief of specific performance of agreement and even section 19 of the Colonization of Government Lands (Punjab)
Act, 1912 would stand in their way. He also went on to uphold the objection that their prayer is aimed at frustrating the warrant for their eviction issued by the Collector and still termed their application as being infructuous, quite inconsistently to his own observation about their being in possession of the land.
2. An appeal there against taken by the applicant-plaintiffs came to be dealt with by an Additional District Judge (Sh. Azhar Hafeez) who dismissed it by his judgment dated 12-11-1984 with the observation:- "The disputed land is not yet been allotted to the respondent and any agreement between him and the appellants' alienating or otherwise transferring the same without prior approval of the Collector was hit by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912.
The 'Ikrarnama' dated 8-12-1973 was, therefore, of no avail to them."
Therefrom he concluded that the agreement was void and they could not be held to have a prima facie case for obtaining injunction merely on the ground that they were in possession and had spent money on the land.
3. The plaintiff-applicants have now come up to this Court on revision. It is urged that the Additional District Judge has not brought under consideration all the facts of the dispute and his assumptions made in that behalf are not even correct. There seems quite a substance in this assertion because if the agreement between the parties had in fact preceded the allotment then the application of section 19 (ibid) would stand excluded. Reference may advantageously have been made to Muhammad Aslam and 3 others v. Muhammad Shaft PLD 1976 Lahore 923; Hakim Ali and another v. Atta Muhammad and others 1981 SCM R 993 and Muhammad Iqbal and others v.
Mirza Muhammad Hussain and others PLD 1986 SC 70. It is not ascertainable as to whence did the appellate Judge get the impression that the disputed land had not yet been allotted to the defendant. Such was not the stand of either party and it rather seems that the various documents accompanying the plaint were not adverted to by the Courts below. There certainly exist a large number of admissions and other features of vital importance in the case set up by the applicants which deserve to be tried for being determined on the basis of evidence which has still to be gone into and the Courts below have made assumptions of their own, in absence even of a formal reply submitted with regard to the averments made in the plaint, to arbitrarily conclude the absence of a prima facie case. Possession admittedly vests in the plaintiffs who will undoubtedly suffer irreparable loss in having to lose it and the consideration relating to balance of convenience also lies in their favour. The two Courts below have not attended to these well-established principles which are the determining factors for regulating the grant or refusal of temporary injunctions. The exercise of discretionary jurisdiction in the manner that it has been done by the Courts below is, in the minimum, fanciful and arbitrary inasmuch as there is no secret made by the applicants of their anxiety to protect their possession of the land until the determination of their case set up in the plaint and this, in itself, is the factor which necessitated the plea for issuance of temporary injunction and it surpasses comprehension as to how may such a plea be capable of being termed as `frivolous' merely on account of the very same consequence being threatened to be brought about by means of a warrant of eviction? In this situation, the admitted vesting of the possession of the land in the petitioners coupled with their claim about monetary investment in the land becomes a fit case for protection. And orders to the contrary passed by the two Courts below are not sustainable in; law. .
4. In result of the foregoing, the impugned orders passed by the two Courts below to decline the issuance of temporary injunction are set aside and this revision petition is accepted by granting the prayer for temporary injunction to restrain eviction of the plaintiffs from the land in dispute and its alienation in any manner during the pending of the suit. There, however, is no order as to costs hereof.