' The petitioner herein has impugned the order of the District Judge, Abbottabad dated 19-3-1995 whereby her appeal against the order of the Civil Judge dated 6-2-1995 rejecting her application for temporary injunction, was dismissed.
2 The petitioner has filed a suit for declaration that she is owner in possession of land measuring 1 Kanal 4 Marlas bearing Khasra No,4854 (old No,3751) situated in the revenue estate of Mirpur, Tehsil and District Abbottabed on the basis of Mutation No,6419 attested on 14-7-1968, and assailed the validity of mutation No,4602 sanctioned on 23-9-1991. Alongwith the plaint, the plaintiff has filed an application for temporary injunction whereupon the trial Court issued ad interim injunction but later dismissed the application vide his order dated 6-2-1995.
3. Learned counsel for the petitioner contended that the plaintiff-petitioner had purchased 1/2 share in Khasra No,4854 (old No,3751) from one Abdul Rehman out of total area of 2 Kanals 8 Marlas. The other co-sharer transferred the remaining portion to his sons who in turn sold it to respondent Not as such he became owner of 1 Kanal 4 Marlas but he sold an area of 1 Kanal 3 Marlas to one Mst. Salma and surrendered 9 Marlas of land for road, totalling 1 Kanal 12 Marlas, thereby he exceeded his entitlement. Yet he further transacted 9 Marlas in favour of respondents 2 and 3 without having any title in the disputed land. Learned counsel for the petitioner further contended that despite the fact that the trial Court had issued ad interim injunction and ordered the maintenance of status quo, the. Respondents in flagrant violation of the Court order carried on the construction. The trial Court deputed the bailiff of the Court to ascertain the factual position who vide his report dated 3-8-1993 reported that respondents were constructing shops in the disputed land which have been raised up to the DPC level. Since the respondents kept on flouting the Court order, hence on the applications of the petitioner other local commissioner was sent to see the construction work and report about it. The local commissioner vide his report dated 20-9- 1993 reported that the structure of the shops have been completed which appeared to be 20/25 days old and partition walls were being constructed in order to separate the shops. He also observed that the labourers working at the site were non-cooperative as they had been instructed by their employers not to cooperate with any body who comes from the 'Court. He further contended that due to the highandedness of the respondents and in utter violation of the Court order the illegal constructed structure be ordered to be demolished/removed.
4. On the other hand learned counsel for the respondents submitted that the plaintiff-petitioner is not owner to the extent of 1 Kanal 4 Marlas as Abdur Rehman from whom she purchased the land was not owner to that extent and he could not sell more than his entitlement. He submitted that respondents Nos.2 and 3 are bona fide purchasers of the land where they have constructed the market and since the construction work has been completed therefore, this revision petition has become infructuous and be dismissed as such. He further contended that the petitioner had sold 19 Marlas from the land in dispute which fact has not been disclosed in the plaint therefore the petitioner has not come with clean hands hence she was not entitled to any relief.
5. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
6. Respondents Nos.2 and 3 in their written statements have conceded that the plaintiff-petitioner had purchased land measuring 1 Kanal 4 Marlas from Khana Kasht' vide Mutation No, 6419, on which the petitioners has based her claim, hence the plea now raised in arguments that she is not owner to the extent of 1 Kanal 4 Marlas in the disputed Khasra number, has no substance. Even if, the contention of the learned counsel for the respondents regarding sale of some portion of the suit land by the plaintiff-petitioner is taken to be correct though not raised in the written statement, even then the plaintiff remains owner and concerned in the disputed land as she has an interest in every inch of the disputed land irrespective of the quantity of her interest. One of the co-sharer cannot deal with the joint property to the detriment of the others as held by Supreme Court of Pakistan in 1989 SCM R 130. Respondent No,1 who had already disposed of more than his share in the property, could not further alienate/transfer any part thereof. As the nonexistent right in the land which too, did not exist on site was mutated by respondent No,1 in favour of respondents 2 and 3 hence they encroached upon the holding of the plaintiff-petitioner for which the present suit was filed alongwith the application for temporary injunction praying to restrain the respondents from interfering or encroaching upon the petitioner's land. The trial Court ordered the maintenance of status quo which was served upon respondents Nos.2 and 3 but they refused to accept the same, consequently on application of the plaintiff-petitioner, bailiff of the Court was directed to submit his report with regard to construction work etc., who in his report dated 3-8-1993, reported that respondents 2 and 3 were constructing a market comprising of 7 shops, which has been raised up to DPC level and RCC filing of nine cloumns has been done while the steel inforcement for the other was in the process. Since the status quo order was continuously flouted by the respondents, the plaintiff filed application one after the other for taking notice of the violation of the Court order. The trial Court appointed another local commissioner, namely, Mr. Muhammad Sajjad Ashraf, Advocate, to visit the ''site and report about the nature of construction and its age. Mr. Muhammad Sajjad Ashraf, Advocate, local commissioner reported that seven shops were under construction, whose structure has been completed, which apparently looked to be 20/25 days old while the lantern was 10/20 days old to which wooden beams' supports have been given and partition walls were being constructed to separate the shops. The ad interim order on its issuance becomes effective and operative and it does not require to be executed in a formal manner. The party against whom the temporary injunction is issued, on gaining knowledge of the same, if disobeys it, they can be committed to the Civil Prison and their property can be attached and sold under clause (c) of A section 94 read with Order 39, Rule 2(3), C.P.C. Learned counsel for the respondents could not controvert the charge of violation of the order of status quo by the respondents 2 and 3, thus they could/can be proceeded against under the aforesaid provision of law cannot be allowed to perpetuate and to take benefit from their illegal action.
' A similar proposition came up for consideration before the august Supreme Court of Pakistan in case of Bakhtawar etc. v. Amin etc. (1980 SCM R 89) wherein it was held as under:-- "It is well-settled that when by contravening an injunction order the party against whom, the order is passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court."
The status quo order though was discharged later on by the Civil Judge but for the period during which status quo order remained operative and was B breached, the violator of such an order can be proceeded against, as laid down in the same ruling. It was further laid down in the same authority that "securing compliance and execution of an order of injunction to restore or reconstruct the Khal by directing arrest and detention, etc. Of (as this term is usually used) a judgment-debtor is an independent subject by itself whereas punishing a judgment-debtor for violation of the injunction of status quo is quite a different matter altogether though in certain respects apparently they may look to be overlapping but that is only incidental. The object of first is to seek compliance by a Court of its orders as otherwise these orders would be a mere farce. The aim of the second machinery is the punishment of the C defaulter. The former is regulated by section 58 whereas the later by Order XXXIX, rule 2(3), C.P.C. The former is applicable when stage for execution has not passed out or in other words the order is still capable of execution whereas the later is attracted at all stages".
7. In view of above, the petitioner having a good prima facie case with balance of convenience in her favour was/is entitled to temporary injunction firstly for having an interest and concern in the property and secondly for the disobedience and violation of the Court order by the respondents which disentitled them to any relief. In the circumstances the trial Court erred in not confirming the ad interim status quo which amounted to endorsing the unlawful act of the respondents and the Appellate Court also failed to appreciate the case in its proper prospective.
8. Since the entire construction has been made by outrageously disgracing the order of status quo by respondents 2 and 3 deliberately therefore, they have to remove the unlawful construction and have to restore the original position as existed on the day when the order of status quo was issued.
In case they fail to remove the superstructure within two months, they shall be sent to civil prison for one month and the property shall stand attached for securing compliance and execution of this order.
' Accordingly, while setting aside the impugned orders of the lower Courts, this revision petition is accepted with costs.