' This first appeal has been filed by Ghulam Farid/plaintiff under Order XLIII, Rule 1(r) of C.P.C. In order to challenge the order passed by the learned Senior Civil Judge, Sialkot, dated 17-10-1992 rejecting the application for grant of temporary injunction lodged by appellant.
2. The bare outlines of the case are; the dispute pertains to property No,B-IV-30/RH, situated at Church Road, Sialkot (hereinafter referred to a `property). This property alongwith other properties was left by one Muhammad Ali, who was predecessor-in-interest of Taj Muhammad, Muhammad Iqbal, Muhammad Younus, Muhammad Siddique, Muhammad Saeed, Muhammad Waheed, Salma Begum and Mst. Zubeda Begum. After his demise his legal heirs were not able to divide the property and filed a suit for its partition in the Court of Senior Civil Judge, Sialkot. During the pendency of the suit the appellant brought a suit for specific performance on the basis of agreement of sell dated 4-11-1989, alleging therein that after the demise of Muhammad Ali, his legal heirs had ironed out their differences in respect of property by family settlement dated 8-9- 1982 under which the property fell to the share of Muhammad Younus; that Muhammad Younus entered into agreement of sale dated 4-11-1989 by which he agreed to sell it for a sum of Rs,3,40,000 received Rs,30,000 as earnest money and covenanted to receive the balance of price at the time of registration of sale. It was further averred in the pleadings that the legal heirs of Muhammad Ali entered into a compromise on 21-6-1992 by which the property was given to one Muhammad Yousuf; that the compromise deed was put in the Court which decreed the suit in accordance with the compromise-deed. It was further averred that thereafter Muhammad Yousuf of means of registered sale-deeds dated 30-7-1992 alienated the property to Muhammad Khalid, Muhammad Babar and Muhammad Arif respondents Nos.3 to 5 herein. On these pleas it was prayed that the sale-deeds in favour of respondents Nos.3 to 5 be declared of no legal consequence upon the rights of the appellant and the suit be decreed with prayers contained in the plaint.
3. Alongwith the suit, an application under Order XXXIX, Rules 1 and 2, C.P.C. Was filed for grant of interim injunction restraining the respondents from interfering in possession of the appellant over the property and further from alienating/changing the character of property. The application as well as the suit were resisted on number of grounds. Muhammad Younus respondent No,1 completely denied the execution of agreement to sell dated 4-11-1989 and stated that the same was a fictitious document. The remaining respondents also traversed the factual contentions in the plaint. Upon consideration of the arguments of the parties, the learned Senior Civil Judge, Sialkot found that the agreement to sell dated 4-11-1989 was hit by principle of lis pendens; that the application of the appellant did not disclose the existence of prima facie case, balance of convenience and irreparable injury in favour of the appellant. On this finding the application for grant of temporary injunction was rejected.
4. The learned counsel for the appellant in support of this appeal almost reiterated the points urged before the learned original Court. It was argued that the principle of lis pendens was not hurdle to grant of requested temporary injunction. According to the learned counsel Muhammad Younus had executed agreement to sell on 4-11-1989, had received Rs,30,000 as earnest money and delivered the possession of the property to the appellant. These circumstances, according to the learned counsel demonstrated the existence of strong prima facie case in favour of the appellant. Reference was made to Sardar Wali Muhammad v. Muhammad Iqbal Mokal PLD 1975 Lah.
492. On the contrary the learned counsel for the respondents supported the impugned order. He further submitted that the property was a vacant plot which was in possession of respondents Nos.3 to 5, that respondents Nos.3 to 5 intended to raise construction on the said plot on their own risk.
5. I have heard the learned counsel for the parties at considerable length and perused the findings of the learned Senior Civil Judge, with great care. It is quite clear that the property was owned by Muhammad Ali on whose demise it devolved upon his legal heirs noted above; that the parties had filed a suit for partition in the Court of Senior Civil Judge, Sialkot; that the agreement to sell dated 4-11-1989 was said to be executed during the pendency of that litigation. This aspect of the case is fully reflected by the agreement to sell itself wherein it was stipulated that Muhammad Younus will complete the sale after the decision of the suit between the legal heirs of Muhammad Ali deceased pending adjudication before the Court of competent jurisdiction. It is also further clear that the property is a vacant plot which is in possession of respondents Nos3 to 5; that respondents Nos.3 to 5 intend to raise construction over it and had stated categorically through their learned counsel that they will do so on their own risk. On these circumstances the learned primary Court was correct in coming to the conclusion that there did not exist prima facie case in favour of the appellant. This finding of the learned original Court is based upon objective examination of pleadings of the parties and the material on record. This conclusion eminently just, correct and does not suffer from any perverseness or arbitrariness. This conclusion is, therefore, not exceptionable.
' For the reasons stated above, this FA.O. Is found to be without any merit and is accordingly dismissed. There shall be no order as to costs.