Mst. SABIRA SULTANA AND Another vs BANGUL KHAN AND 5 Other

1. WAHEHDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Quetta Circuit, Quetta, dated the 27th April 1967, in Civil Revision No. 8 of 1966. By this judgment.--the revision was accepted and the High Court restored ad interim injunction to the extent of the share of the appellants only i.e., 21/80 share, of the house in dispute.

2. The dispute between the parties is in respect of the house No. 2-3/83, Quetta. It originally belonged to one Muhammad Tufail who died in 1959. The appellants and respondents Nos. 2 to 6 are heirs of Muhammad Tufail. It appears that respondent No. 3 being the eldest son of late Muhammad Tufail started squandering money by leading immoral life and for this reason he incurred heavy debts.

3. Thereafter he coerced respondents Nos.4 to 6 to execute a special power of attorney in his favour and also respondent No. 2 to execute on her own behalf and on behalf of the appellants as their next friend for mortgaging the said house. Respondent No. 3 succeeded in obtaining the said power of attorney from respondents Nos. 2 and 4 to 6. The appellants at that time were minors and their dates of birth were 4th March 19 6, and 14th January 1947.

4. On the 3rd October 1961, after the death of Muhammad Tufail, Sajjad Haider respondent No. 3, as stated above, obtained a special power of attorney from respondents Nos.4 to 6 and from respondent No. 2 in her own behalf and as guardian for appellants Nos. 1 and 2 for effecting the mortgage of the property in disput4. On the 28th September 1962, respon--dent No. 3 acting on that power of attorney, executed a deed of mortgage with possession of the property in dispute in favour of Bangul Khan respondent No. 1 for ostensible sum of Rs.5,000. Later on, on the 7th January 1963, a further sum of Rs. 9,000 was obtained as mortgage money in connection with the said mortgage. It is alleged that on the basis of the said mortgage, Bangul Khan respondent No. 1, in 1964, filed ejectment proceedings against respondents Nos. 2 to 6 and appellants Nos. 1 and 2. The Rent Controller on the 16th December 1964, passed an order of eject--ment. Against this order respondent No. 3 on his own behalf and as attorney of appellants Nos. 1 and 2 and respondents Nos. 2, 4 to 6, filed an appeal before the learned District Judge. This was compromised and respondent No. 3 undertook on his own behalf and on behalf of the appel--lants and respondents Nos. 2 and 4 to 6, to deliver possession of the house in dispute to respondent No. 1 on the 16th July 1965.

5. This led Mst. Sabira and Abbas Haider appellants to file suit for declaration that the power of attorney dated the 3rd October 1961, executed by their mother respondent No. 2 on her own behalf and on behalf of the appellants in favour of respondent No. 3 and the subsequent mortgage deeds dated the 28th September 1962, and 7th January 1963, in favour of respondent No. 1 and the compromise filed by respondents Nos. 1, 2 and 3 before the learned District Judge, were null and void and the appellants' share i.e., 21/80 share in the house in dispute remained free from all incumbrances and that the eviction orders passed, were not binding on the plaintiff's-appellants.

6. Alongwith the plaint, an application under Order XXXIX, rules 1 and 2, C. P. C. Was also filed praying that an ad interim injunction be granted restraining respondent No. 3 from delivering possession of the property to respondent No. I. It was further prayed that an ad interim injunction be issued to respondent No. 1 restraining him from pursuing any execution proceedings against the appellants till the disposal of the case. The learned Senior Civil Judge finding the balance of convenience in favour of staying the execution proceedings, passed an order to restrain respondent No. 1 from pursuing the execution proceedings in respect of the whole house and also restrained respondent No. 3 from putting defendant No. 1 in possession of the house till the decision of the suit. This order was challenged before the learned District Judge who accepted the appeal and vacated the order of the learned Senior Civil Judge on the ground that Order XXXIX, rule 1, C. P. C. Does not apply to the execution proceedings. The matter was taken to the High Court to revision and the learned Single Judge of the High Court restored the interim injunction issued by the learned Senior Civil Judge to the extent of 21/80 share in the property in dispute.

7. The appellants aggrieved by this order filed an application for leave to appeal and leave was granted to consider the question whether the order of the (sic) if allowed to stand, its implementation will have the effect of parti--tioning the property which is at present in common tenancy.

8. Subject to this remark, the appeal is dismissed with no order as to costs.