1. MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court; has been filed to call in question the judgment passed by the High Court on 12-11-1997 whereby the appeal filed by the appellants, herein was dismissed.
2. 2.The facts giving rise to the present appeal, are that the appellants, plaintiff filed a suit for specific performance, with respect to the suit land, claiming to have purchased it through an affidavit executed in their favour on 15-1-1991, by defendant-respondent, in the Court of District Judge Mirpur. Alongwith the suit and application for grant of stay order was also moved. The stay order in the first instance was issued but the same was cancelled on the objections filed by the defendant- respondent. The aforesaid order was challenged through an appeal before the High Court which was dismissed vide the order impugned dated 12-11-1997, which is the subject of present controversy.
3. 3.The High Court while dealing with the question of stay order observed that plaintiffs-appellant claimed to have purchased Survey No,2186/2, situate at village Kalyal Bainsi, Tehsil Mirpur, but this fact stands falsified by a certified copy of register of petition-writer, wherein the relevant Khasra number is entered as 2186. It was further observed by the High Court that the claim of plaintiffs/appellant is negated by report of the process-server who on stay order issued by the District Judge Mirpur noted that some construction has been raised by the defendant-respondent over the suit land. In this view of the matter, the High Court while concurring with the findings arrived at by the District Judge dismissed the appeal as in its estimation the plaintiffs-appellant failed to show their prima facie case, balance of convenience in their favour and irreparable loss.
4. Thus, the order of District Judge, cancelling the stay order, was affirmed by the High Court.
5. 4.Arguing the case on behalf of appellants, it was contended with vehemence by Mr. Abdul Ghafoor Qureshi, the learned counsel, that the document Annexure 'PA', in the shape of an affidavit on the basis of which the plaintiffs-appellant claim to have derived their title from the defendant, specifically enters Khasra No,2186/2 which is in the ownership of respondent, whereas Khasra No,2186 refers to Shamilat-Deh land wherein the respondent is not shown in the possession of land.
6. This aspect of the matter, according to the learned counsel for the appellants, positively suggests that the transaction took place with regard to Khasra No,2186/2, and not with regard to Khasra No,2186 as observed by the High Court. The learned counsel also pressed into service the submission that the plaintiffs-appellant purchased the above Khasra number measuring 10 Marlas for a consideration of Rs,1,95,000, which was received by the defendant/respondent and this fact is not being denied by the respondent. However, the claim to be put-forth by the respondent is that in fact the land was sold out of Khasra No,2186 and not from 2186/2. The learned counsel for the appellants also submitted that the High Court has expressed its opinion on the merits of the case and by making observations has prejudged the final case itself thereby seriously prejudicing the claims of the parties. The learned counsel also submitted that the suit land was purchased by the appellant not only on the basis of Khasra number but also on the basis of locations duly specified in the affidavit. The locations, according to the learned counsel, mentioned in the affidavit and plaint clearly locate the actual piece of land transferred by the defendant in favour of plaintiffs- appellant. Thus, the learned counsel has maintained that the High Court has committed an illegality by dismissing the appeal filed by the appellants.
7. 5.Controverting the arguments raised by the learned counsel for the appellants, Raja Muhammad Siddique Khan, the learned counsel for respondent, submitted that Survey No,2186 is a Shamlat- Deh land which was purchased by the respondent from one Mazhar Iqbal, out of which 10 Marlas of land was transferred to the plaintiffs-appellant through an affidavit executed in their favour which was later on tampered as Survey No,2186/2. This fact, according to the learned counsel for the respondent, is sufficiently supported by the register of petition-writer and the affidavit by which defendant-respondent transferred the relevant piece of land. Thus, there being no prima facie case in favour of plaintiffs-appellant, they were not entitled for the grant of any stay order in their favour. It was further contended by the learned counsel for respondent that land measuring 10 Marlas, comprising Survey No,2186, transferred in favour of plaintiffs/appellant, was a Shamlat-Deh land whereas the land comprising Survey No,2186, was in the ownership of defendant-respondent, therefore the tampering subsequently made in the affidavit is clear from the document itself which pertains to Shamlat-Deh land.
8. 6.We have heard the learned counsel for the parties and perused the record. It may be stated that during the course of arguments the learned counsel for the appellants requested the Court that the piece of land purchased by his clients from the defendant-respondent was not only on the basis of Khasra number entered in the affidavit but also on the basis of locations specified in the affidavit. The learned counsel requested that a Commission be sent on the spot so as to verify the locations mentioned in the affidavit and to locate the exact survey number which was transferred to the appellants by the defendant-respondent. So, on 27-3-1998, we directed the Local Tehsildar to visit the spot and submit his report to the Court which was duly submitted by him on 27-4-1998.
9. The Tehsildar concerned has reported that on the basis of his inspection on the spot and the verifications of the locations mentioned in the affidavit and after inspecting the adjoining Khasra numbers, latha and AxMassavi, he reached the conclusion that the land transferred in favour of appellants was out of Khasra No,2186/2 and it was presently numbered as Khasra No,3052.
10. According to Tehsildar the said Khasra number is in the ownership of Muhammad Siddique, respondent, who except the said survey number is not the owner of any other survey number in the village. It has been also reported by the Tehsildar that there was no construction raised in Khasra No,2186/2, however, both the sides had collected some bricks for the purpose of raising the construction. But in Khasra Girdawari of Rabbi 1997 there is an entry of Muhammad Siddique respondent in column of possession on the basis of Farad-bardar.
11. 7.On the basis of aforesaid report submitted by Local Tehsildar, prima facie the Khasra number sold by respondent to the appellants appears to be Khasra No,2186/2. Therefore, in our view at the stage of grant of interim relief the plaintiff need not establish his title to the suit property as it is not necessary for the plaintiff to show that he must succeed in his suit. The plaintiff is only to show that he has a good arguable case. In other words it would be sufficient for the plaintiff to show that he has a fair question to raise as to existence of his right and that till the question is ripe for trial, a case is made out for preservation of property in status quo. The Court is not expected to examine the merits of the case closely. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising the jurisdiction the Court does not profess to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and needs the aid of the Court for the protection of the legal right until the legal right is finally ascertained. Thus, the Court has only to look on the nature and difficulty of points which may arise in the case and not on the merits of the case. It is not c necessary that the Court should find a case which entitles the plaintiff to succeed at all events.
12. 8.The meaning of balance' of convenience in favour of plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that inconvenience to be caused to them would be greater than that which may be caused to the defendant. In the instant case on the basis of report of Tehsildar who verified the same after the spot inspection and in accordance with the locations specified in the affidavit, we are of the view that the plaintiffs have a prima facie arguable case and if the injunction is not granted and ultimately the suit of the plaintiffs is decreed the inconvenience caused to the plaintiffs would be greater than that as caused to the defendant.
13. Conversely if injunction is granted and ultimately the suit of the plaintiffs is not decreed, the comparative mischief caused to the defendant will not be greater than that caused to the plaintiffs.
14. 9.The High Court in our view embarked upon the detailed inquiry on the merits of the case and virtually observed that the land purchased by the plaintiffs-appellant from the defendant- respondent was Khasra No,2186 and it was later on tampered as 2186/2. This question was to be resolved by the trial Court after the conclusion of the trial and a premature finding on it prejudiced the case of the parties which is not at all the requirement of law while deciding a question of interim injunction. Similarly the evidentiary worth of the attested copy of the register of petition- writer and the report of Tehsildar are the questions to be resolved by the trial Court at the conclusion of the trial. Thus it is left open to the trial Court to determine on the basis of evidence led by the parties as to which piece of land was in fact purchased by the plaintiffs-appellant from the defendant-respondent.
15. 10.In the circumstances indicated above, we accept the appeal and set aside the impugned judgment passed by the High Court as well as of the trial Court and order that till the decision of the case by the trial Court the status quo of the suit land shall be maintained. The trial Court shall proceed with the suit in accordance with law. It shall not be influenced by any of our observations in this judgment or that of the High Court in the impugned judgment as the same were made