1. JUDGMENTS MUHAMMAD HALEEM, J.-This appeal is by special leave of this Court against the judgment dated 22nd November 1974, of a learned Single Judge of the Lahore High Court in Civil Revision No. 125 of 1974 by which the order dated 19th October 1973, of the Administrative Civil Judge, Lyallpur was restored.
2. The dispute in this appeal relates to the ownership of a tube-well on the land owned by Muhammad Ramzan in Killa No. 1 of Square No. 2, Chak No. 241/J. B., Tehsil Toba Tek Singh, District Lyallpur. It is the case of the respondent that he bad taken permission from Muhammad Ramzan, pursuant to the agreement dated 7th June 1972, to install a tine-well for selling water to the Khatedars and irrigating his land which he subsequently installed ; and in support of his claim, he relied on a receipt dated 15th August 1972, for the amount paid for boring and another receipt dated 6th of September 1972, evidencing the purchase of 'tube-well machinery' from R.I Saadullah.
3. Since the appellant laid a claim - to its ownership and possession, the despondent filed a suit on 25th June 1972, In the Courts of Civil Judge, Lyallpur against the appellant for declaration and perpetual injunction a also prayed for interim -injunction through an application under Order XXXIX, rules 1 and 2, C. P. C. To restrain him from (interfering with his possession. During the hearing of the application on 31st July 1973, the respondent prayed for further time to file certain documents. The learned Civil Judge acceded to his request and adjourned the bearing of the application to 4th of September, 1973, and also ordered for site inspection on that date. For some reason the application was not heard on 4th September 1973. However, on 25th of September 1973, the appellant lodged a report at Police Station Rajana, alleging that the respondent had made Abdullah Dindar who was suffering from T. B. And Asthma, to sit at the tube-well and had taken over the possession of the tube-well. He expressed his apprehension that Abdullah Dindar was an old man and if something happened to him then he and his sons would be held responsible for it.
4. Thereafter on 19th October 1973, the application came up for hearing before the learned Civil Judge but he was unable to form an opinion as to who was the owner of the tube-well, and in possession of it in view of the agreement dated 7th June 1972, and the documents filed by both the parties relating to the charges paid for boring and the price paid for the purchase of the tube-well machinery. He was, however, influenced by tile report dated 25th September 1973, allegedly lodged by the appellant in which it was stated that the possession of the tube-well was taken over by the respondent. Accordingly, he granted the interim injunction subject to the furnishing of security in the sum of Rs. 40,000.
5. On appeal the Additional District Judge, Lyallpur, in particular, placed documents bearing; the signature of the respondent as a marginal witness. The first document is dated 5th May 1969, which purports to be a receipt in which Sher Muhammad and others had admitted that it was the appellant who was "the sole owner in occupation of the disputed tube-well". In the other document the shareholders had acknowledged having surrendered their rights in favour of the appellant for a consideration of Rs. 46,000 which they admitted to have received. And held that this conduct of the respondent amounted to his having acknowledged the ownership of the tube-well to be that of the appellant. As for the Police report dated 25th September 1973, the learned Additional District Judge held that the appellant had disputed having lodged the report and even otherwise. His ouster from the tube-well was not discernible from The learned District Judge further held that the respondent had mistakenly placed reliance on this report for it ran counter to his claim of undisputed possession of the tube-well since 1972. Accordingly, the learned Additional District Judge held that the respondent did not even have an arguable case and set aside the order of the learned Civil Judge.
6. The respondent filed a revision in the Lahore High Court and sought reversal of the order on the following grounds;
(a) That the learned Additional District Judge had not taken into consideration the fact that after Noor Muhammad bad become the exclusive owner of the tube-well he had sold the tube-well machinery' to R.I Saadullah from whom he had purchased it and hence the learned Additional District Judge wrongly relied on the attestation of the documents showing exclusive ownership by the respondent-
(b) That the learned Additional reliance on the Police report dated 25th of September 1973, lodged by the appellant in which he admitted to have lost possession.
(c) That the appellant had filed a suit being Case No. 347/1 in the Court of the Civil Judge. Lahore on 14th September 1973, for injunction to restrain Muhammad Ramzan, the admitted owner of the hard, from dispossessing him from the tube-well which suit was dismissed for default on the 11th January 1974. And the prayer for injunction was refused earlier on the 25th November 1973, on the basis of the Police report dated 29th September 1973, and the order of the Civil Judge, restraining the appellant from interfering with the posses--sion of the respondent.
(d) And lastly, en the proceedings by way of Suit No. 892 of 1473 in the Court of Civil Judge, Toba Tek Singh, filed by Muhammad Ramzan on 17th October 1973, against the respondent seeking injunction against him from operating the tube-well on account of breach of the agreement which was compromised.
7. The case of the appellant was that he had not sold the 'tube-well machinery' to R.I Saadullah and as such the respondent had failed to make out a prima facie case as to his ownership of the tube- well. As for the other documents relied on by the respondent it was contended that they bad been `collusively obtained'. In regard to the report dated 25th September 1973, it was urged that it was not the appellant who had lodged it but someone else personated him.
8. The parties, however, agreed to the appointment of a Local Commissioner who visited the site and submitted his report on 19th November 1914 in which he stated that it was the appellant who was in actual possession of the tube-well.
9. The learned Judge was impressed by the affidavit filed in support of rte contention that the tube- well was sold by the appellant to R.I Saadullah and the other documents on record and in particular which reflected the claim of Noor Muhammad in the suit filed by him against Muhammad Ramzan and in replication the plea of Muhammad Ramzan that the tubs-well was in possession of the respondent on the basis of his admission in the report dated 25th September 1973, and accordingly the learned Single Judge was not satisfied with the claim of the appellant as to his possession of the tube-well.
10. As for the other suit filed by Muhammad Ramzan against the respondent e learned Single Judge held that it was not necessary to refer to it as it was disposed of by compromise. The other reason assigned was that in the face of the plea taken by Muhammad Ramz3-n in the suit, referred to above, it was not necessary to take it into consideration.
11. The learned Single Judge further repelled the plea of the appellant record in the local Commissioner---s report that he was dispossessed just before his arrival at the site as it ran counter to his admission in the report dated 25th September 1973, and the plea taken by Muhammad Ramzan in the aforementioned suit and finally concluded that "the evidence on record from the date of the report i.e. 25-9-1973 proves that the petitioner has been in possession of the tube-well and it was, therefore, a fit case for issuing the temporary injunction".
12. Leave to appeal was granted to consider the following contention: "According to the learned counsel, the question of possession for the purpose of issuing a temporary injunction in favour of the plaintiff had to be decided on the basis of the position obtaining on the date of the institution of the suit, and not with reference to the events which may have subsequently taken place owing to the use of force of exercise of deception by the plaintiff- respondent."
13. The learned counsel for the appellant repeated his contention in terms of the leave granting order to assail of tae conclusion of the learned Single Judge that it was the respondent who was in possession of the tubs-well from the date of the report i.e. 25-9-1973 and onwards.
14. The learned counsel for the respondent conceded to the principle that the question of possession had to be judged from the situation as it existed on the date of the suit but factually disputed the claim of the appellant in regard to the possession of the tube-well.
15. The main reliance of the learned Single Judge is on the report dated 25th September 1973, alleged to have been lodged by the appellant and the plea of Muhammad Ramzan in Case No. 347/1 which are of subsequent dates. Therefore, those could not have been regarded as material in judging the plea of possession on the principle stated above. Again even on merits neither the report nor the aforementioned plea could proviso a ground for holding so. There appears to be an interpolation In the Police report dated 25th September, 1973. The learned counsel for the appellant had produced before us a true copy of the report obtained from the Superintendent of Police's Office in which the words ---ur qabza ker lia--- are not there. The Single Judge in the High Court as well as the trial Court were influenced by this admission in the report and made it a sheet-anchor of the finding in regard to possession. The learned counsel for the respondent was to sale to convince us as to the correctness of the photostat copy and we are constrained to hold that the learned Single Judge and the trial Court were clearly misled by it. As for rte plea taken by Muhammad Ramzan in the suit it bad no bearing on the question of possession as the respondent was rapt a party to it and hence could not take the benefit of it. This too was conceded by the learned counsel for the respondent.
16. Adverting now to the local Commissioner's report the learned Single Judge again fell into error in not accepting his conclusion that it was the appellant wry was in possession of the tube-well. It transpires from the report that the representative of the respondent had no knowledge of the items in the locked room which were correctly disclosed by the servant of the appellant. This factor and the evidence recorded at the site led the local Commissioner to hold to. In our view the local Commissioner had acted correctly to test the veracity of the statements made before him in the context of the contending claims of the patties that they were dispossessed shortly before his arrival. The learned Single Judge had not given proper considera--tion to it though it tended to check the credibility of those making the statements. Accordingly no exception could be taken to it.
17. Again the documents dated 7th June 1972, 15th August 1972 and 6th September 1972, on which reliance was placed by the respondent in fact ran counter to the case set up by him. As stated earlier the respondent bad attested the documents showing the appellant's exclusive ownership of the tube-well in May 1969. If that was so then there was hardly any occasion to bore the land for installing the tube-well machinery. It was not his case in the pleadings that either the tube-well machinery was removed or there was need for re-boring. Therefore, his assertion that he had installed it in September 1972, on the basis of the above documents is hardly of any value, more so when theca is no document to support the allegation that the appellant had sold the tube-well machinery to pat Saadullah from whom he had subsequently purchased it in September, 1972.
18. Again this plea was raised for the first time before learned Single Judge and that too not without a purpose for it was to avoid the effect of the attention of the documents by the respondent acknowledging the appellant's exclusive ownership of the tube-well. The learned Single judge should not have taken this plea into consideration much less to have given due weight' to the affidavit filed in support of the transaction of sale in reaching the conclusion as he did as to the prima facie ownership of the tube-well.
19. Accordingly, we are of the view that the learned Single Judge had not exercised his discretion judiciously in favour of the respondent. His finding in regard to possession is thus untenable.
20. We would, however, like to make it clear that what we have expressed in this order is a tentative opinion and the trial Court should proceed to decide the suit on its own view of the matter on the evidence led before it.
21. Accordingly, we would set aside the orders of the learned Single Judge and Civil Judge and restore that of the District Judge dated 26th February 1974, and allow the appeal with costs.