' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above-titled appeals arise out of the same judgment of the High Court, we propose to dispose of the same through the single judgment.
2. The brief facts giving rise to the present appeals are that Qazi Khalil-urRehman, appellant, challenged sale-deed, dated 20-7-1998 which was executed regarding land measuring 6 Marlas comprising Survey No,219 on the ground that out of the aforesaid piece of land, 5 Marlas of land was allotted to him but Rehmatullah, respondent, with the connivance of the Rehabilitation Authorities, got the same piece of land included in his Proprietary Rights' Transfer Order along with other evacuee land and when he protested to Rehmatullali about the aforesaid misdeed, he executed a gift-deed of land measuring 5 Marlas in his favour on 18-10-1984 wherein he admitted that the said piece of land was allotted to. Qazi Khalil-urRehman, appellant herein, but the same was included in the Proprietary Rights' Transfer Order by mistake. However, subsequently he got an ex parte decree for cancellation of the gift-deed on 4-6-1992. Consequently, Qazi Khalil-ur- Rehman, appellant, challenged the aforesaid ex parte decree for cancellation of the gift-deed, dated 18-10-1984 by filing a suit, which is still subjudice in the trial Court. During the pendency of the suit Rehmatullah, respondent herein, executed a sale-deed of land measuring 6 Marlas comprising aforesaid survey number in favour of Khawaja Taufique Qadir appellant herein, on 20-7-1998 and Qazi Khalil-ur-Rehman, appellant herein, was obliged to challenge the aforesaid sale-deed on the ground that in presence of .Gift-deed in his favour the sale deed of the suit land was a nullity against his interests. He also filed an application for interim injunction restraining Khawaja Taufique Qadir, defendant-appellant, from interfering in his possession and from raising construction over the suit land. The Sub-Judge issued interim injunction on 25-11-1998 in favour of Qazi Khalil- urRehman and after hearing the objections from Khawaja Taufique Qadir, confirmed the same vide his order, dated 14-1-1999. The aforesaid stay order was challenged by way of appeal before the District Judge by Khawaja Taufique- Qadir, appellant herein, who accepted the same and set aside the order passed by the trial Court. Qazi Khalil-urRehman, appellant herein, filed a revision petition in the High Court which was also dismissed with certain directions to Taufique Qadir. It is against the, aforesaid order of the High Court that the above entitled cross appeals have been preferred.
3. It may be observed that the High Court while confirming the order of the District Judge has also directed that Khawaja Tautique Qadir, appellant herein, shall execute an undertaking that he would not demand compensation for the construction made overthe disputed land if the case filed by Qazi Khalil-ur-Rehman, appellant herein, is decided against him (Khawaja Taufique Qadir).
Consequently, Khawaja Taufique Qadir, appellant herein, has also filed appeal challenging the aforesaid condition imposed by the High Court.
4. We have heard the arguments. Mr. Ashfque Hussain Kiani, the learned counsel for Khawaja Taufique Qadir, appellant, has argued that the District Judge and the High Court have accepted the contention of the appellant that gift-deed executed in favour of Qazi Khalil-ur-Rehman was cancelled vide the judgment and decree, dated 4-6-1992; the land which is in the possession of Qazi Khalil-ur-Rehman is different and is situated at some distance from the suit land which was purchased by Khawaja Taufique Qadir, appellant, vide sale-deed, dated 20-7-1998. He has also submitted that in view of the report of Revenue Authorities, Qazi Khalilur-Rehman, appellant, is not the owner of any piece of land in the aforesaid survey number after the cancellation of the gift- deed and that the land which is allegedly in his possession is situated at a distance from the land upon which Khawaja Taufique Qadir, appellant-defendant, had constructed the shops. Therefore, according to the learned counsel, the High Court; after dismissing the revision petition, was not legally justified to place condition of not claiming the compensation. The learned counsel has further argued that the High Court did not commit any error in refusing the stay order to Qazi Khalil-urRehman stopping Taufique Qadir from making construction over the suit land. He has referred to paragraph 2 of the suit filed by Qazi Khalil-ur-Rehman for the cancellation of the sale- deed executed in favour of Taufique Qadir, wherein it has been alleged by Qazi Khalil-ur-Rehman that he had purchased the said portion of land through a sale-deed for a consideration of Rs,500'but no sale-deed has been produced by him. Thus, he has argued that the Appellate Courts have rightly refused interim relief to Qazi Khalil-ur-Rehman, appellant herein, because he has no prima facie case in his favour entitling him to get the interim relief. He has further contended that on the one hand the case of Qazi Khalilur-Rehman, appellant, is that he got the suit land through a gift-deed but on the other he has alleged in his suit that he got the same through a sale-deed. The learned counsel has submitted that according to the suit filed by Qazi Khalil-ur-Rehman, the possession of the suit land is with him but it is fully established that Taufique Qadir, appellant, has raised the construction over the suit land in form of shops. He has argued that the shops could not be constructed within few days and, thus, the settled possession of Taufique Qadir on the suit land is proved. He has further contended that in fact the land purchased by Taufique Qadir is a different piece of land which has nothing to do with the land which was gifted by Rehmatullah to Qazi Khalil- ur-Rehman. The learned counsel has further contended that the High Court legally could not impose restrictions on Taufique Qadir, appellant, that he would not claim any compensation for the construction in case the suit filed by Qazi Khalil-ur-Rehman succeeded. He has argued that even otherwise, the said condition cannot be imposed by the High Court while deciding the matter pertaining to temporary injunction. He has referred to a case reported as Messrs Qureshi Vegetable Ghee Mills Ltd., Mangla v. Habib Bank Limited,1Mirpur (1994 M LD 912), wherein it has been held that in appropriate cases the Court may issue temporary injunction but provisions contained in rules 1 and 2 of Order XXXIX, C.P.C., exclude the scope of demanding security bond from a party to meet the liability which is ultimately settled in the shape of decree.
5. Mr. Ghulam Mustafa Mughal, the learned counsel for Qazi Khalil-ur-Rehman, appellant herein, has argued that the decree for the cancellation of gift-deed, dated 4-6-2001 is an ex parte decree which was challenged by filing a civil suit on 27-2-1995, which is still subjudice. He has argued that.
Even otherwise, in the gift-deed, dated. 18-10-1984, Rehmatullah, respondent, has admitted that in fact the land measuring 5 Marlas was allotted to Qazi Khalil-urRelunan, appellant herein, and the same was included in the Proprietary Rights' Transfer. Order issued in his favour by mistake. The learned counsel has further argued that this admission clearly supports the case of Qazi Khalil-ur- Rehman that the gift-deed was executed to avoid further litigation between the parties and to rectify the wrong committed by Rehmatullah. He has submitted that there is no proof on the record that the said land which is in possession of Khawaja Taufique Qadir, appellant herein, is different from the one which is the subject of dispute between the parties. He has argued that 'the suit land was forcibly occupied by Khawaja Taufique Qadir despite the stay order and the same was in the possession of Qazi Khalil-urRehman, appellant. The learned counsel has argued that Khawaja Taufique Qadir has made construction over the suit land in violation of the stay order which was issued by the trial Court in the suit filed by Qazi Khalil-urRehman, appellant, on 27-2-1995 for the cancellation of ex parte decree whereby the gift-deed was cancelled. Thus, he has argued that the District Judge and the High Court were not legally justified to vacate the stay order issued by the trial Court in favour of Qazi Khalil -ur-Rehman , appellant. The learned counsel has, in alternative, contended that the condition imposed by the High Court for executing an agreement that Taufique Qadir would not claim any compensation for the construction made over the dispute land is just and does not call for any interference. The learned counsel has relied upon the following authorities in support of his contentions:--- ' In a case reported as Jamia Masjid Sharif Rara v. Mufti Khalil-ur-Rehman (1999 CLC 964), the findings of the High Court that the respondent would raise construction over the suit land at his own risk meaning thereby that he would not be entitled to any compensation of the same were upheld by this Court.
' In a case reported as Haji Shahjahan Khan v. Aurang Zeb Khan (PLD 1995 SC 462), on the application by a co-sharer' for stay order restraining other co-sharer from raising construction over the portion of land which was purchased by him was rejected by the trial Court but on appeal, the order of the trial Court was vacated by the District Judge. However, on revision petition filed to the High Court, the order passed by the District Judge was set aside and a direction was given to the party concerned to give security to the effect that he would remove the construction in case the plant if respondent succeeded.
' In a case reported as Kh. Abdus Subhan v. Khurshid (2000 YLR 2898), on the offer of furnishing bank security by the respondent, it was observed by this Court that the offer made was just in circumstances of the case and if the same is furnished, the stay order issued by the Court below would stand vacated.
' In an unreported case titled KhalilurRehman v. Gohar Rehman (Civil Appeal No,4 of 1987, decided on 14-4-1987), the facts were that respondents-plaintiff, filed a suit seeking possession of a certain piece of land. They also sought temporary injunction restraining the defendants-appellants from raising construction over the suit land. Initially, the trial Court issued the injunction in terms that status quo should be maintained. However, subsequently after hearing the opposite-party, the trial Court amended its earlier order and allowed the defendants to raise construction over the suit land; the order of trial Court was upheld by District Judge. A revision petition was preferred to the High Court which was accepted and the defendants were restrained from raising construction over the suit land. Consequently, an appeal was preferred to this Court which was accepted observing that the High Court was not justified to set aside the order passed by the trial Court and affirmed by the District Judge in the circumstances of the case and, thus, the defendants were allowed to make construction over the suit land.
6. We have given due consideration to the matter. It may be observed that both the trial Court and the First Appellate Court have come to the conclusion that, prima facie, the suit land is different from one which was transferred to Qazi Khalil-ur-Rehman, appellant, through gift-deed. It may also be pointed out that the said gift-deed has already been cancelled by the Court on the suit filed by Rehmatullah, respondent, by passing an ex parte decree against Qazi Khalil-ur-Rehman. It is correct that Qazi Khalil-ur-Rehrnan has challenged the aforesaid ex parte decree by filing a civil suit but the same is still subjudice in the trial Court. We may also observe here that so far as the suit land is concerned, some construction has already been raised by Taufique Qadir, appellant, who has allegedly purchased the said portion through a sale-deed from Rehmatullah, respondent.
It may also be pointed out that neither the gift-deed nor the sale-deed was executed in pursuance of any site plan, i,e,, 'Tattima'. The total area of the concerned survey number in which the disputed portion of land is included measures about 10 Kanals. Therefore, it cannot be definitely ascertained at this stage as to whether the disputed land which is in possession of Tafique Qadir, appellant, over which he has raised construction is different from the one which was transferred to Qazi Khalil-ur-Rehman through gift-deed or not. This, of course, would be decided by the trial Court in the suit at proper stage.
7. The contention of the learned counsel for Taufique Qadir that the High Court was not legally justified to direct Taufique Qadir, appellant, for giving an undertaking that he would not claim any compensation in case the suit filed by Qazi Khalil-ur-Rehman is decreed, is not tenable; such a condition can be imposed by the Court, if not under Order XXXIX of C.P.C., in exercise of its inherent powers as evident from some of the authorities cited by the learned counsel for Qazi Khalil- urRehman. Thus, in view of the circumstances indicated above, we are of the opinion that the impugned judgment passed by the High Court does not call for any interference.
' In the light of what has been stated above, we dismiss both the above-entitled appeals with no order as to the costs.