MESSRS JAMEEL SONS & COMPANY Versus MUHAMMAD ASLAM
In this revision petition, order dated 23‑5‑1989 passed by learned Trial Court for acceptance of application filed by respondents 1 to 4 for issuance of temporary injunction during the pendency of their suit for specific performance of agreement and order dated 1‑4‑1991 passed by learned Addl. District Judge, T.T. Singh dismissing petitioner's appeal against the said order of the learned trial Court have been challenged.
2. The land in dispute was allotted to Shah Aurangzeb as Tarbela Dam affectee. According to respondents 1 to 4 he entered into an agreement of sale of this land and received certain amounts as earnest money. The agreements executed in favour of the respondents 2 to 4 were dated 14‑1‑1979 and 4‑11‑1979. Shah Aurangzeb, however, subsequently on conferment of proprietary rights in the said land got the land transferred to the present petitioner by way of sale on 19‑11‑1987 which led to the filing of the suit by the said respondents for specific performance of agreement. Respondents 1 and 4 and one Ghulam Muhammad were admittedly in possession of the land as tenants under Shah Aurangzeb prior to the execution of alleged agreement of sale in favour of respondents 1 to 4. Ghulam Muhammad was in possession of land measuring 37 Kanals 11 Marlas whereas the remaining entire land was in possession of respondents 1 and 4 as tenants. During the pendency of this suit the present petitioner filed an ejectment petition before the Revenue Court against the tenants in which order for ejectment was passed on 14‑1‑1989 which has not been assailed in appeal by respondents 1 and 4. It may however, be stated that Ghulam Muhammad is not party in the present litigation.
3. The two Courts below while granting injunction to respondents 1 and 4 against their threatened dispossession assumed as if they were in possession of land as bona fide purchasers under the agreement of sale in part performance thereof.
4. Learned counsel for respondents 1 to 4 when asked to point out the relevant portion of the agreement of sale allegedly executed in their favour reciting that the possession of land was delivered to them under the said agreement as intended purchasers and it was agreed that hence onward they would cease to .be the tenants, frankly conceded that in the agreement itself there is nothing about the delivery of possession of land to the said respondents in part performance of agreement or any covenant that they would cease to be the tenants. This being so, the very assumption by the two Courts below that the said respondents were in possession of land as bona fide purchasers was not established and the said finding is based on gross and acute misreading of the documents.
5. It has also been ignored that Shah Aurangzeb did not admit the execution of the agreement of sale in favour of respondents 1 to 4. The status of respondents 1 and 4 continued to be that of tenants therefore, they could not claim any protection against their dispossession as such in pursuance‑of order of ejectment passed by Revenue Court which was vested with the jurisdiction to decide the ejectment petition of the petitioner. The respondents No.1 to 4 even if succeed in the suit, the land would vest in them only after the execution of the sale‑deed in execution of final decree if passed in their favour and prior to that they could not claim any right other than the rights of tenancy in the land which was subject to incidence of eviction in accordance with law.
6. The two Courts below for the foregoing reasons have committed material irregularity and illegality in exercise of jurisdiction vested in them under the law. This revision petition is accepted. The impugned orders dated 23‑5‑1989 and 1‑4‑1990 passed by both the Courts below are set aside and the application filed by the petitioner for issuance of .temporary injunction is dismissed. The parties are left to bear their own costs.
H.B.T./S‑74/L Revision accepted.