GHULAM MOHY-UD-DIN Versus MUHAMMAD MUSHTAQ

This revision petition is directed against the order of the Additional District Judge, Lahore dated 18th of February, 1985 whereby the appeal filed by the respondent from the order passed by the Civil Judge, Lahore on 27th of October, 1984 declining him temporary injunction was accepted and he was granted ad interim injunction against the petitioner till the disposal of the suit.

2. The dispute between the parties pertains to a Deohri of House No. 19, Montgomery Road, Lahore. This property consists of a ground floor and upper portion. The Deputy Settlement Commissioner, Lahore vide his order dated 30th of November, 1959 transferred whole of the house to Shariat‑ullah Khan, predecessor‑in‑interest of the respondent. On an appeal by Mst. Kaniz Sughra, predecessor in‑interest of the petitioner, the Additional Settlement and Rehabilitation Commissioner, Lahore vide his order dated 6th of January; 1960 divided the house into two portions and transferred the ground floor shown in red in the site plan to her and the remaining to Shariat Ullah Khan, the predecessor‑in‑interest of the respondent. There is a Deohri in the ground floor which though not marked in red is claimed by the petitioner to have been transferred jointly to Mst. Kaniz Sughra and Shariat Ullah Khan. The contention of the respondent is that this Deohri constituting as an access to the upper portion was exclusively transferred to Shariat Ullah Khan. He, therefore, instituted a suit against the petitioner for a perpetual injunction restraining him from encroaching, interfering and raising any construction in the Deohri.

3. Alongwith the suit, the respondent filed an application for a temporary injunction to the above effect till the disposal of his suit. This application was opposed by the petitioner. The learned Civil Judge after considering the order of transfer and also the report of the Local Commissioner according to whose observations it was the respondent who was obstructing the petitioner from using the Deohri as a passage refused to grant the temporary injunction as prayed for by the respondent and dismissed his application.

4. Feeling aggrieved the respondent preferred an appeal which was heard by the Additional District Judge, Lahore who vide his order dated 18th of February, 1985 reversed the order of the Civil Judge and accepting the application of the respondent granted him the temporary injunction as applied for by him till the disposal of his suit.. Hence this revision petition.

5. I have heard learned counsel for the parties. According to the order of the Addl. Settlement and Rehabilitation Commissioner, Lahore dated 5th of January. 1960, Mst. Kaniz Sughra, predecessor in‑interest of the petitioner, was transferred only that portion of the ground floor of the house which had been marked in red. A certified copy of the site plan prepared by the Settlement Department in accordance with the order of the Additional Settlement and Rehabilitation Commissioner has been filed by the petitioner. In the site plan, the Deohri in dispute had not been shown in red. In view of the order of the Additional Settlement and Rehabilitation Commissioner, Lahore, dated 5th of January, 1960 read with the site plan, prima facie case obviously preponderates in favour of the respondent. In case the Deohri had been transferred to the parties to be used by them jointly, the order of the Additional Settlement and Rehabilitation Commissioner would have contained a clarification to that effect. In this connection learned counsel for the respondent has referred to the grounds of appeal which had been filed by Mst. Kaniz Sughra for the transfer of the ground floor to her. In these circumstances the discretion exercised by the learned lower Appellate Court in granting the temporary injunction to the respondent is neither arbitrary nor perverse so as to justify interference by this Court in revision. Reliance in support of this view is placed on Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 SC 139.

6. Learned counsel for the petitioner has argued that while interpreting the order of transfer passed by the Additional Settlement and Rehabilitation Commissioner on 5th of January, 1960, no reliance can be placed on the grounds of appeal preferred by Mst. Kaniz Sughra; predecessor‑in‑interest of the petitioner. In this connection, he has relied on Sher Bahadar Khan v. Qazi Islam‑ud‑Din and another PLD 1984 SC 513. This authority however, does not help him. It has been held that Civil Courts had full jurisdiction to determine the title derived from P. T. D. but they were not competent to interpret or construe the P.T.D. in a manner to erode‑, modify or destroy any part of the proceedings, order or decision of the competent Settlement authority which consistently with P.T.D. formed the very basis of the Permanent Transfer Deed as the same would be outside their jurisdiction under Section 26 of the Displaced Persons (Compensation and Rehabilitation) Act.

7. For the foregoing reasons, I find no valid justification for interference with the impugned order passed by the Additional District Judge, Lahore and dismiss this revision petition. There shall be no order as to costs.

H . B . T . / G‑144 / L Revision dismissed.