MOHBAT KHAN vs PROVINCE OF SINDH and 14 others

ORDER

1. The applicant has assailed an order dated 24-1-1995 passed by learned 2nd Senior Civil Judge Sukkur in 1st Class Suit No,77 of 1994 refusing to grant ad interim injunction to the applicant who was plaintiff before the trial Court. This order has been merged in an appellate order passed by IInd Additional District Judge Sukkur on 20-6-1995 who also dismissed Civil Miscellaneous Appeal No,1 of 1995 arising out of the impugned order of the Civil Court, and both these orders have been impugned in this Court Revision Application.

2. Briefly the case of plaintiff is that he is 50 paisa share holder in the property which has been erroneously allotted to respondents Nos.3 to 15 by respondent No,2 and Sindh Land Commissioner, however, Sindh Land Commission is not respondent either before the trial Court nor before me. His further contention is that he has record of rights in his favour the land could not be allotted to respondents Nos.3 to 5 and, therefore, he prayed for declaration and injunction to the extent that the plaintiff is owner of the disputed land allotted to respondents Nos.3 to 5 and the allotment in favour of respondents be annulled/declared invalid and prayed for injunction as well.

3. The parties filed their written statement and objections. The respondent No,2 Mukhtiarkar stated that the record of rights produced by the plaintiff is forged document. The land was never transferred by an authority to the plaintiff at any time and his claim over the suit land is pulpably false. The trial Court while refusing the interim relief held as follows:-- "I am not inclined to grant the above application for the reasons that the present Revenue Record in respect of the suit land is not in the favour of plaintiff. Plaintiff has also not produced any proof of his possession over the suit land. On the other hand defendants have produced allotment orders, hence no prima facie case is made out by the plaintiff and no balance of convenience lies in the favour of plaintiff and plaintiff shall not suffer an irreparable loss in case above application is refused. In such circumstances I find no merit in the application hence it is dismissed with no order as to costs."

4. Maintaining the impugned order of trial Court, the appellate Court ruled as follows: "The respondent No,2 is Taluka Mukhtiarkar Rohri has clearly stated in his objections filed by him in this appeal that the document i,e, record of rights produced by the appellant before this Court regarding 50 paisa share in the disputed land is bogus fabricated and does not exist in Revenue Record and the same has been prepared by him mala fidely. He has clearly stated that the appellant has never remained in possession of the suit land while the respondents/grantees are in actual cultivating possession of the disputed land. In view of the above circumstances I am of the considered view that the appellant has failed to prove a prima facie case in his favour. The balance of convenience does not lie in his favour, and if injunction if refused he will not suffer any irreparable loss as he is not in possession of the disputed land. The learned trial Court has rightly dismissed the injunction application of the appellant and I do not find any reason to interfere in the same. The appeal of the appellant is, therefore, dismissed with no order as to costs. The R&Ps of the learned lower Court be sent back to lower Court for further proceedings."

5. Contention urged before me is that if the entry was false the Court has not taken any action against the plaintiff. His further contention is that he is in continuous possession since 1974, therefore, presumptions of record of rights in his favour are valid and thirdly he has contended that the trial Court before disposing of application under Order 39, rules 1 and 2 should have framed the issue regarding the ownership.

6. The contention of the respondents before me is that the plaintiff/applicant had no right whatsoever over the suit land. He was a trespasser and usurper. Learned counsel for respondent has relief upon 1997 SCM R 1139 Abdul Hakeem v. Habibullah and 11 others in which the Hon'ble Supreme Court has re-affirmed the time honoured principle of law that the jurisdiction of this Court under section 115, C.P.C. is very limited, and that the Court under section 115, C.P.C. cannot substitute its findings affecting those findings of fact which are based upon cogent reasons and sold material on record and sustainable in law.

7. Reverting to the first contention I am not impressed that the prosecution has not been initiated against the forger. That cannot be taken to be plus point in favour of the plaintiff. The action for forgery would ultimately lie if the Court comes to the conclusion that indeed forgery has been committed by the plaintiff.

8. The second contention of the learned counsel that he is in possession of the premises. How he come to possess the land is yet to be determined by the Trial Court. The contention of private respondent is that he is in possession. However, apparently on the basis of record the plaintiff/applicant has no title in his favour. Through the interim injunction the Court only protects the legal possession of the property and does not protect the interest of tresspassers/usurper. By doing so, the Court will be travelling in an area which is unknown to the jurisprudence. The illegal possession without title, thus, cannot be protected through interim relief under Order 39, rules 1 and 2, C.P.C.

9. Coming to the other contention, the record of rights produced by the plaintiff was declared by both the Courts below to be false record. It does not bear true entries of the Revenue Record and Mukhtiarkar in his objection has specifically stated that it is forged document. Forged documents cannot confer any right of any kind on any person and the person who uses false document, comes to the Court with unclean hands. Granting interim relief is equitable jurisdiction of Civil Court. Equity does not help the person who comes to the Court with unclean hands.

10. In this case I have quoted the findings of the trial Court and the 1st appellant Court. No exceptions can be taken against such findings. It is for the plaintiff to apply to the trial Court for framing for any issue. However, this Court cannot give directions in such matter.

11. Lastly, it was contended that this Court should pass the order for maintenance of status quo and that the directions be given for disposal of suit as early as possible. Again I am not inclined to grant such prayer as grant of status quo would amount to reversing the orders of the Trial Court and the 1st appellate Court and the protecting the interest of tresspasser/usurper. This suit is filed in 1994.

12. The Court is mindful of the fact that there are still older suit which needs to be disposed of.

13. However, it is expected from the Trial Court that efforts shall be made for disposal of all suits at an early period in accordance with the law, including this suit.