' Mahmoodul Hassan petitioner-plaintiff claiming to be in possession of a plot of 6 Marlas comprised in Killas Nos.18/1 and 18/2 of Square No,183 situate within the municipal limits of Town Committee, Shorkot, over which he had constructed two shops shown in the site plan and marked ABCD, filed a suit for a declaration with respect thereto with an injuction restraining the Town Committee and Muhammad Yousaf respondent-defendant from interfering with the same.
Alongwith the suit an application under Order XXXIX, Rules 1 and 2, C.P.C. Was moved which was dismissed by the learned Civil Judge, Shorkot vide order dated 22-7-1986 and his appeal met the same fate in the Court of learned Additional District Judge, Jhang vide order dated 20-10-1986. So, the present revision petition.
2. According to the averments in the plaint and the application the disputed plot was in possession of one Eisu who had constructed shops thereon, it had been purchased by the petitioner, some of it had been transferred to him by the Settlement Department and the rest of it had been purchased from various persons vide deeds dated 26-4-1976 and 29-5-1976. As Muhammad Yousaf was laying claim to the same to which he had no right, so the necessity of the suit. The pleas were controverted by Yousaf respondent on the assertion that Eisu had no concern with the suit land and so there was no question of its being sold to the petitioner. He claimed title thereto on the basis of allotment from the Settlement Department.
3. None has appeared for respondent No,2, namely, Muhammad Yousuf in spite of service while Rehmat All produced authority letter from Town Committee, Shorkot. As no counsel appears for the respondents and the matter is about two decades old, hence the same is being disposed of with the help of the learned counsel for the petitioner after going through the record.
4. Learned counsel for the petitioners has contended that even on pleadings his possession over the disputed plot was admitted, plot in Khasra No,18/2 had been cancelled from the name of Yousaf respondent by the Settlement Department and his writ petition against the same (W.P.
No,215- R/67) had also been dismissed and in any case, he had constructed shops with permission from the local Town Committee and thus he had a prima facie case.
5. His arguments have force except with respect to the portion of the plot in Khasra No,18/1. The petitioner is transferee of a plot of 4 Marlas in Khasra No,18/2 of Square No,183. Thus to the extent of this Khasra number he has a very good case. He has also constructed shops thereon and he is in possession as well. The balance of convenience would also be in his favour and if the stay order is not granted more would be the loss to him than to the other side, rather Yousaf respondent in this plot has no title at present.
6. So far as the plot in Khasra No,18/1 is concerned, the petitioner is not in a position to indicate any document whereunder he is owner thereof but nonetheless he is in possession and according to the report of the Local Commissioner this fact was ascertained by the learned lower Court. So, to that extent as well he has a prima facie case and the title thereto could only be determined' after having recorded the evidence.
7. For all the reasons discussed above the revision petition is accepted and the orders of the two Courts below are hereby set aside and it is ordered that the petitioner's possession over the disputed plot shall not be disturbed or interfered with till the disposal of the main case. In the circumstances, the parties are left to bear their own costs.