Civil Appeal against dismissal of Stay Application

Civil Appeal against dismissal of Stay Application 

1. In the name of ALLAH, the most beneficent, the most merciful

IN THE COURT OF DISTRICT JUDGE

RAWALPINDI

 

1.   Zafran Khan son of Muhammad Zaman resident of House No. 1, Street No. 4, Mohallah Shah Chan Chiragh, Rawalpindi

2.   Habib Butt son of Nabeel Butt resident of House No. 1, Street No. 4, Mohallah Shah Chan Chiragh, Rawalpindi

3.   Mir Zaman son of Muhammad Zaman resident of House No. 1, Street No. 4, Mohallah Shah Chan Chiragh, Rawalpindi

 

Appellants

 

Versus

 

 

1.   Hina Nasir wife of Nasir Mehmood resident of House No. 122,  STreet No. ,2,  DHA, Phase 6, Rawalpindi

2.   Province of Punjab through District Collector Rawalpindi 

3.   Nasir Associates through owner Qamar Ahmed Khan resident of Bajnial Tehsil and District Rawalpindi. 

4.   Adnan Nabeel Tehsildar Rawalpindi through AC Saddar Rawalpindi

5.   Rehan Alam Patwari Mouza Bajnial Tehsil and District Rawalpindi

 

Respondents

 

 

APPEAL AGAINST THE ORDER DATED: 07.11.2020 PASSED BY THE COURT OF MR. ASAD NAEEM  LEARNED CIVIL JUDGE RAWALPINDI WHEREBY HE DISMISSED THE APPLICATION UNDER ORDER 39 RULE 1 AND 2 CPC FILED BY THE APPELLANTS

 

 

CLAIM IN APPEAL:

 

It is therefore respectfully prayed that the instant appeal may kindly be accepted and the impugned order dated; 07.11.2020 passed by Learned Civil Judge may kindly be set aside and the application under order 39 rule 1 and 2 CPC filed by the appellants may kindly be accepted.

 

Respectfully sheweth:-

 

1.                 That the brief facts of the case are that the appellant filed a suit for declaration, permanent and mandatory injunction alongwith application under order 39 rule 1 and 2 CPC against the respondents contending therein that appellants / appellants are owner of land bearing Khasra No. 201, 202 measuring  46 kanal 7 marlas situated in Village Bagnial Tehsil and Distt. Rawalpindi and the defendant No.1 has no concerned whatsoever with the above property. The respondent / defendant No.1 inclusion with the staff of the defendant No.2 with malafide intention got sanctioned mutation No. 402 dated; 27.11.2004 showing the appellants as vendor. It is pertinent to mention here that the appellants have neither sold the above said suit land nor received any consideration money. It is also relevant to mention here that the appellants never appeared before any revenue officer in connection with the above mutation No. 402 dated: 27.11.2004. As the appellant has never sold the suit land to the defendant No.1 and the mutation No. 402 is fake, forged, fictitious and result of misrepresentation and fraud, malafide and is liable to be declared as illegal, null and void, ab-initio result of malafide, misrepresentation and fraud and ineffective and inoperative and has no legal effect upon the rights of the appellants and in application under order 39 rule 1 and 2 CPC it was prayed that the respondents may kindly be restrained from selling, transferring or alienating the suit property  to anybody else in any manner whatsoever, hence this suit.

 

2.                 That the respondent No.3 appeared before the court and submitted his written statement as well as written reply. Other respondents were proceeded ex party.  

 

3.                 That arguments on the application under order 39 rule 1 and 2 were advanced by the counsel for the parties and learned trial court dismissed the application under order 39 rule 1 and 2 CPC filed by the appellants vide order dated; 07.11.2020.

 

4.                 That the impugned order dated; 07.11.2020 passed by Learned Civil Judge Rawalpindi is against the law and facts of the case and the same is liable to be set aside, hence this appeal on the following amongst other

 

G R O U N D S:-

 

A.  That the impugned order is against the law and facts of the case and is not sustainable in eye of law.

 

B.  That it is mandatory provision that two witnesses are necessary that the revenue officer shall make the order under sub section (6) in the presence of person who right has been acquired after such person has been identified by two respectable persons  preferably from Lambardars or members of the union committee or union council concerned who signatures or thumb impression shall be obtained by the revenue officers on the registration of mutations but the suit mutation does not bear any name and signatures of witnesses. 

 

C.  That all the three ingredients i.e. balance of convenience, good prima-facie case and irreparable loss are in favour of the appellant but the learned trial court just ignored it and gave erroneous findings.

 

D. That the impugned order is based on conjectures and surmises and the same is liable to be set-aside.

 

E.   That the impugned order is not speaking judicial order and not based on reasoning rather these is based upon assumptions and presumptions.

 

F.   That the impugned order is not sustainable in the eye of law.

 

G. That the learned trial court failed to appraise the material available on record in its true perspective.

 

H. That impugned order is result of illegalities and irregularities which resulted into grave mis-carriage of justice.

 

I.     That the impugned order and decree is result of mis-reading and non-reading of material available on record.

 

J.   That the Learned Trial Court exercised the jurisdiction not vested in it and did not exercise the jurisdiction vested in it.

 

K.  That the impugned order has been passed in a post haste and arbitrary manner, thus is not sustainable in the eye of law.

 

L.   That the Learned Trial Court did not view the case from it’s right angle and reached a wrong conclusion.

 

PRAYER:-

 

It is therefore respectfully prayed that the instant appeal may kindly be accepted and the impugned order dated; 07.11.2020 passed by Learned Civil Judge may kindly be set aside and the application under order 39 rule 1 and 2 CPC filed by the appellants may kindly be accepted.

 

Any other relief which this Honorable court may deem fit and proper be also awarded to the appellant.

 

                               

 

        Appellant

 

 

                Through

 

 

               Certified as per instructions that this is the first appeal against the impugned order. Furthermore nothing is pending or decided by the Honorable High Court on the subject matter.

 

                                        Advocate.