Mian ALLAH BAKHSH AND Another vs Mst. BAKHAN BIBI Etc.
This matter concerns a petition for leave to appeal against the Lahore High Court's dismissal of a Civil Revision. The petitioners, nephews of the deceased landowner, claimed ownership of land based on a will, a gift, and mortgage redemption. The trial court found the will unproven but the gift established, granting a declaration for a portion of the land, but did not address the prayer for an injunction to protect their possession. The first appeal and revision petition were dismissed. The core legal question before the Supreme Court was whether the relief of injunction, as prayed for, could be refused or remain unaddressed when the petitioners were found entitled to a piece of land and were in possession, notwithstanding that their possession might exceed their exact share. The Supreme Court granted leave to appeal to further examine this aspect of the contention and temporarily restrained the respondents from interfering with the petitioners' possession except in accordance with the law.
- Can an injunction to protect possession be refused or left unaddressed when a party is found entitled to land and is in possession, even if their possession exceeds their exact share?
- Does the issue of whether an injunction can be refused or remain unattended, despite established entitlement and possession, warrant further judicial examination?
- Is it permissible for a court to grant a declaration of ownership without addressing an accompanying prayer for an injunction to protect possession?
ORDER
SHAFI-UR-REHMAN, J.-The petitioners who are the plaintiffs, seek leave to appeal against the judgment of the Lahore High Court dated 14-10-1980 'whereby their Civil Revision was dismissed.
2. The petitioners are the nephews of one Mian Khuda Bakhsh who died on 10-10-1965 without leaving any male issue. They claimed ownership of the land belonging to him to the extent of 584 kanals under a will dated 5-6-1965, another 81.1/4 kanals as gift from a sister of Mian Khuda Bakhsh and another about 674.3/4 kanals as mortgagees having redeemed the mortgage from an earlier mortgagee. They claimed to be in possession of the entire land apart from a declaration of ownership in respect of it they also sought an injunction that their possession be not disturbed except by taking proceedings for partition. A number of issues were framed. The will was found not proved. The gift from Mst. Badshahi to the extent of 81.1/4 was held established. The trial Court found that the redemption of the mortgage was not established. A declaration in respect of 81.1/4 was granted without adverting to the injunction prayer. The first appeal failed and so did the revision petition.
3. The learned counsel for the petitioners contends that the relief of injunction in terms prayed for could not be refused or remain unattended once the petitioners were found entitled to a piece of land and were held to be in possession of it notwithstanding that their possession exceeded their exact share in it.
4. This aspect of the contention of the learned counsel for the petitioners whether injunction could be refused to them or the relief for injunction could remain unattended requires further examination and the leave to appeal is granted in the matter. Security in the sum of Rs. 2,000. The respondents are temporarily restrained from interfering with the possession of the petitioners except in accordance with the law.