' MUHAMMAD YUNUS SURAKHVI, J.--- This Appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 18-11-2000 which was announced on 21-11-2000, whereby the appeal filed by appellant No,1 herein was dismissed and the order of interim relief granted by the Civil Judge, Mirpur was vacated.
2. The necessary facts, giving rise to the present appeal, are that a suit for perpetual injunction was filed by appellant No,1 in the Court of Civil Judge, Mirpur for restraining the respondents from interfering in or dispossessing him from the land in dispute comprising Survey No,511, measuring 32 Kanals, situate in Jatlan, Tehsil Mirpur. It is stated by the appellant that this land was allotted to his father by Canal Department where his father was serving. It was further stated that the possession of the suit-land was given to the father of appellant with the consent of the Canal Department, wherein houses were duly constructed by his father and the land was cultivated and the possession of land is duly entered in the name of appellant and his father. Thus, a decree for permanent injunction was sough against defendants praying that the defendant-respondents be refrained from dispossessing the plaintiff-appellant from the suit-land forcibly and taking the possession of the same. The Civil Judge, Mirpur allowed the hterim relief vide his order, dated 28-1- 2000, directing the respondents to refrain from dispossessing .The appellant forcibly from the suit- land; but on appeal the District Judge set aside the order observing therein that the land was given for temporary use to the father of appellant who was employed in Canal Department and after his retirement from Department, the possession of land reverted back to the Canal Department. On appeal taken to the High Court the same was dismissed vide the impugned judgment of the High Court, dated 18-11-2000 which was announced on 21-11-2000. It is the aforesaid judgment of the high Court which is the subject of present appeal.
3. In support of appeal it was vehemently contended by Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, that the land in dispute is in possession of appellants and they cannot be dispossessed from the said land except in due course of law. The learned counsel contended that the appellants entered into possession of the suit-land with the permission of Canal Department and in the said land houses have been constructed since long by the appellants and they are living there with their family for the last so many years. The learned counsel contended that the Canal Department which is the owner of the land has not initiated any proceedings for the ejectment of the appellants from the said land but on the other hand some other quarters are interested to dispossess the appellants from the suit-land through unlawful means for which they have no right.
4. In rebuttal Mr. Muhammad Nisar Anjum, the learned counsel for respondents Nos.2 to 5 contended that the land belongs to the Canal Department which was given to the father of appellant No,1 temporarily for his use whose service has been terminated on account of misconduct and now he stands retired from the Department, as such the land has reverted back to the Canal Department. It is stated by the learned counsel for the respondents that the appellant has no locus standi to file the suit and the same was not maintainable, as such no stay order could have been issued in favour of a trespasser. The High Court and the District Judge, therefore, according to the learned counsel for respondents, committed no error in vacating the temporary injunction granted by the Sub-Judge. The learned counsel contended that it was erroneously contended by the learned counsel for the appellants that the Canal Department has not initiated any ejectment proceedings against the plaintiff-appellants. The learned counsel pointed out that an application for ejectment of appellants has been moved by the Canal Department which is pending disposal in the Court of Assistant Revenue Collector 1st Class.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, no doubt it is correct that the land in dispute belongs to Canal Department but the same was given to the father of appellant for temporary use. It is claimed by the appellant that his father having entered into the possession of suit-land had made certain improvements by constructing certain houses over there and he is living there alongwith his family members. The perusal of the suit filed by the appellant shows that it has been averred in the suit specifically that defendant- respondents want to dispossess the plaintiff-appellant from the suit-land through unlawful means and to take the possession of the suit-land by force, as such the defendant-respondents may be stopped from taking the possession of the suit-land through illegal means or dispossessing the plaintiff in an unlawful manner. The averments made in the plaint have been denied by the respondents but this fact stands admitted by respondents that the land had been' given to the father of appellant for temporary use that during the period of his service he may use the same.
The learned Sub-Judge. As stated earlier, vide his order, dated 28-1-2000, issued the interim relief in favour of appellant against the respondents that they shall refrain from dispossessing the appellant or taking the possession of the suit-land measuring, 20 Kanals from the appellant.
However. The District Judge and the High Court vacated the stay order on the ground that the Canal Department being the owner of the suit-land, on the termination of the service of appellants' father, the land reverted back to the Canal Department. Therefore, a trespasser has no locus standi to file the suit and as such no stay order could have been issued in favour of appellants. As pointed out earlier, the appellant's case precisely is that his father entered into the permissive possession of the suit-land and since many years back he had made improvements in the suit-land in the shape of construction of houses wherein he is living alongwith his family. His prayer precisely is that he should not be dispossessed from the suit-land except through lawful means and his possession may not he disturbed by unlawful means. The possession of plaintiff-appellant and his father over the suit-land is admitted by the respondents; although it is claimed by them that their possession is that of a trespasser. It may be pointed out that for the purpose of giving cause of action to a Court of law the averments made in the plaint are presumed to be correct. It is to be decided ultimately after the conclusion of the trial as to whether the plaintiff-appellant has any cause of action to file the suit against the respondents. At the stage of grant or refusal of stay order a Court of law is not expected to examine closely the merits of the case of the parties. All that a Court has to see is whether the plaintiff has a prima facie case and the comparative balance of convenience and irreparable loss. In a case reported as Bashir Ahmed and others v. Muhammad Qasim and others 1992 SCR 165 it was observed as follows:- "The close perusal of para.3 of section 54 would reveal that it does not postulate the existence of an 'obligation' as is envisaged in paras. 1 and 2. Para.3 of section 54 stipulates that in case a right to, or enjoyment of property, is invaded or threatened, the plaintiff may be granted a perpetual injunction subject to the conditions laid down therein. The provisions contained in para.3 of section 54 are not subordinate to paras.1 and 2 of the said section because para.3 commences after full stop at the end of para.2. Thus, while interpreting the provisions contained in para.3 of section 54, the word 'obligation' used in first two paras. Would have no relevancy. Thus, we are of the opinion that if a trespasser has settled possession of a piece of immovable property extending over years, as is in the present case, it cannot be said that he has no right of enjoyment of the property on the basis of his possessory title and the owner of the land is entitled to evict him by force. The provisions contained in section 54 of the Specific Relief Act should be read with those contained in section 9 of the said Act which envisage that if a person is dispossessed without his consent, he is entitled to recover the possession if he sues within a period of six months from the date of his dispossession without showing his title to the land. In other words I is settled possession is recognised sufficient ground for the restoration of possession to him. The scheme of the Specific Relief Act does not stipulate the forcible dispossession of a trespasser by force. If a forcible dispossession by an owner is recognised, it is likely to result in multiplicity of proceedings, which would be violative of the one of the objects of the perpetual injunction stipulated under para.3 of section 54 of they said Act. In the aforesaid view of the matter, we are of the opinion that a trespasser, whose possession is settled, can be validly granted perpetual injunction."
' In a case reported as Muhammad Rasab and others v. Muhammad Siddique Chaudhry 1998 M LD 2045 it was observed that in exercising jurisdiction under Order XXXIX, Rules 1 and 2 of the Civil Procedure Code, the Court does not profess to determine the legal rights of parties in respect of property but acts on the assumption that party seeking its interference has legal right and needs aid of Court for protection of legal right until legal right is finally ascertained.
' In a case reported as Jaffar Khan v. Mrs. Zeenat-un-Nisa and 7 others 1984 CLC 3019 the suit in favour of plaintiff regarding prayer of injunction directing that plaintiff would not be dispossessed from the property except in due course of law was decreed.
6. From the above referred cases it becomes crystal clear that at the stage of grant or refusal of stay order, we cannot enter into close merits of the case of the parties as the saline may prejudice the case of any one of the parties. However, the plaintiff-appellant having possessory title, though permissive in nature, over the land measuring 20 Kanals wherein he has made improvements in the shape of construction of houses and is living there since long does not debar him from seeking the requisite relief from the Court of competent jurisdiction. -The High Court as well as the District Judge fell in error in observing that the plaintiff-appellant was a trespasser in the suit-land, therefore, no interim relief could have been granted to him. It is for the trial Court which is seized with the matter to decide at the conclusion of the trial of the suit as to whether the plaintiff is a trespasser in the suit-land. The District Judge and the High Court were not vested with any jurisdiction to examine deeply the merits of the case of the parties. The law stands settled that even a trespasser who is in occupation of a certain land or in the houses built therein cannot be ejected from the said property except in due course of law. The law does not recognise the unlawful and unfair means for the ejectment of a person who is in use of the dispute property.
7. In the aforesaid circumstances, we set aside the impugned judgments passed by the High Court and the District Judge by accepting the appeal filed by the appellants and maintain the order of Sub-Judge with a modification that the defendant-respondents shall not eject the appellants from the suit-land or from the houses wherein the appellants and their family members are living by unlawful or by forcible means.
' However, the defendants who have recently filed the ejectment proceedings against the appellants in the Court of Assistant Revenue Collector 1st Class, Mirpur vide their application dated 22-2-2001 may proceed with the same for the ejectment of appellants from the suit-land measuring 20 Kanals by lawful means. In the circumstances of the case we pass no order as to costs.