IN THE COURT OF DISTRICT JUDGE, MULTAN.

1. Muhammad Akram---husband Mst. Noor Jehan, D/o Abdul

2. Javed Iqbal ---son Ghafoor S/o Raheem Bakhsh,
3. Mst. Kishwar caste Sheikh Qureshi, R/o
4. Mst. Rani daughters 64/64-A, Lal Kurti Multan Cantt.

5. Javed Iqbal ---husband Mst. Musarrat D/o

6. Muhammad Saeed Mst. Noor Jehan D/o
7. Muhammad Tufail (minor) sons Abdul Ghafoor S/o
8. Muhammad Wasif (minor) Raheem Bakhsh, R/o
9. Mst. Shamim daughters H. No. 56, Lal Kurti,
10. Mst. Saher (minor) Multan Cantt.
through Javed Iqbal (real father of the minor)

……Appellants
VERSUS
1. Muhammad Saqi sons of Abdul Ghafoor, caste Sheikh
2. Muhammad Irshad Qureshi, R/o 60/64-A, Lal Kurti
3. Shehzad sons Ghulam Hussain S/o
4. Fida Hussain Abdul Ghafoor,
5. Niaz Ahmad --husband Mst. caste Sheikh Qureshi,
6. Riaz Ahmad--son Rukhsana R/o H. No. 64/A,
7. Mst. Saba--daughter D/o Lal Kurti, Multan Cantt.
8. Muhammad Iqbal S/o Muhammad Ali
9. Muhammad Atif Iqbal S/o Muhammad Iqbal
both R/o H. No. 228, Lal Kurti, Multan Cantt.
10. Cantonment Board, Multan, through Cantonment Executive
Officer, Multan Cantt.

……Respondents
 Appeal under Order 43, Rule 1
C.P.C. against the order dated
26.6.2003 passed by the court of Mr.
Malik Ali Raza Awan Esq. Civil
Judge, Ist Class, Multan, whereby
the learned Judge dismissed the
application under Order 39, Rule 1
C.P.C. of the appellants.

CLAIM IN APPEAL: -

By accepting the appeal, the

impugned order may very
graciously be set aside and stay
order may very graciously be
awarded that the respondents
should not change the situation at
the spot and should not dispose off
the suit property in any manner till
the final disposal of suit.

The appellants respectfully submit as under: -

1. That the appellants filed the suit titled “Muhammad Akram

etc. Vs. Muhammad Saqi etc.” in the court of Senior Civil
Judge, Multan about the suit property entrusted to the court of
Mr. Malik Ali Raza Awan Esq. Civil Judge, Multan. In the
suit, the appellants have claimed the they are the co-sharer in
the suit property and they also prayed the possession through
partition of the said property.

2. That the appellants filed the application under Order 39, Rule
1 and under Section 151 C.P.C. that pending adjudication of
the suit, the respondents No. 1 to 9 may be ordered to
maintain the status quo with respect of the ownership and the
construction over the suit property and respondent No. 10
may be restrained from entering any mutation and
furthermore, the defendants/respondents may be restrained
from making any construction or changing the nature of the
suit property, pending adjudication of the suit.
3. That the learned court after hearing the arguments of the
parties dismissed the application vide the impugned order
passed on 26.6.2003. The certified copy of the impugned
order is attached Annex “A”.

4. That the impugned order is illegal, ultra vires, against law and
facts of the case, based on surmises, conjectures and without
jurisdiction inter-alia amongst other: -

GROUNDS

a) That the appellants have appended the affidavit with

the stay application and the respondents have not given
his/their affidavit in rebuttal of the appellants’ affidavit.
Therefore, the learned court should have given weight
to the version of the appellants because as per law, the
presumption of truth is attached to the affidavit until
and unless in rebuttal counter affidavit is filed by the
contesting party. The learned lower court has not
considered this aspect of the case and as such, it has not
exercised its jurisdiction in proper manner.

b) That in the plaint, the appellants have categorically

asserted, that Mst. Noor Jehan, the predecessor of the
appellants, is the real sister of respondents No. 1 & 2
Muhammad Saqi, Muhammad Irshad and Ghulam
Hussain (decease). This version of the appellants has
been admitted by the respondents No. 3 to 7, who are
the legal heirs of Mr. Ghulam Hussain. But the learned
court has not considered this aspect of the case while
deciding the application of the appellants. By the
admission of the respondents No. 3 to 7, that Mst. Noor
Jehan is the sister of respondents No. 1 & 2 and
ancestor of respondents No. 3 to 7. The case of the
appellants has become a good prima facie case. Even
if, for arguments’ sake, if it is not considered as prima
facie case, then it can be termed as an arguable case. As
 such, the appellant has fulfilled the ingredients for the
grant of stay order, but learned lower court has ignored
this and as such, it has exceeded the jurisdiction given
to it by the law.

c) That by the material placed on records, it has been

proved that the appellants are proved as legal heirs of
Mr. Abdul Ghafoor, the predecessor of the appellants
and respondents No. 1 to 7, therefore, they are entitled
to inherit the property of Mr. Abdul Ghafoor.

d) That the learned lower court has given much weight to

the decree and registered sale deed in respect of
property No. 229 and that the appellants have not
challenged the decree instituting application under
section 12 (2) C.P.C. There is no need to challenge the
decree in separate application under section 12 (2)
C.P.C. because that decree is about the specific
performance of the contract against respondents No. 1
& 2. This decree has not decided the case of inheritance
between the parties. Had it given any verdict about the
inheritance of the parties, then the appellants would
have challenged the same under section 12 (2) C.P.C.
The appellants have made the purchasers of that suit
property as respondents/ defendants in the instant suit
at serial No. 8 and 9. Now the matter is subjudice
before the civil court and the fate of that decree will be
subject to the decree of the instant suit. Furthermore,
the respondents No. 1 & 2 have sold only the part of
the suit property, therefore, this sold portion can be
deducted from the share of the respondents. But, the
learned lower court has not seen the case in this manner
and has decided the application in haphazard manner.

e) That the learned lower court has held that respondents

No. 1, 2, 8 and 9 have denied the relationship of the
predecessor of the appellants with the deceased Abdul
 Ghafoor, so, appellants are yet to prove their contention
by leading evidence. In this connection, it is submitted
that the respondents No. 8 and 9 are the purchasers of
the portion of the suit property from the respondents
No. 1 & 2, therefore their interest is common in this
regard. Because respondents No. 1 & 2 want to usurp
the Islamic and legal rights of the appellants, therefore,
they have sold the portion of the suit property to the
respondents and now they have denied the real and
hard facts by saying that Mst. Noor Jehan is not their
sister.

f) That the learned court has held that in joint Khata every
co-sharer has right in every inch of property, therefore,
stay cannot be granted. This decision of the learned
court is against the facts of the case. It has come in the
notice of the learned court that the respondents have
sold the portion of the suit property without having got
it partitioned from any forum. If the respondents
change the condition of the property or further transfer
the suit property in any manner, then more
complications will be created and the appellants will
have to suffer irreparable loss. But the learned court
has decided this aspect of in illegal manner. This
decision is totally against the facts and circumstances
of the instant case.

g) That while deciding the stay application, the learned

court should have constrained itself to the to the
contents of the plaint because the granting of stay is for
an interim period i.e. till the final disposal of the case
and is not for ever. But the learned lower court has not
considered the same while deciding the application of
the appellants.

h) That the appellants have proved all the three

ingredients for the grant of interim stay i.e. (i) good
 prima facie case/arguable case, (ii) irreparable loss and
(iii) balance of convenience, but the learned lower
court has erred in deciding the stay application.

5. That the appellant has a good prima case and there are ample
chances of its success.

6. That if the respondents further transfer the suit property and

change its condition, then the appellants would have to suffer
an irreparable loss.

7. That balance of convenience lies in favour of the appellants.

Under these circumstances, it is humbly prayed

that by accepting this appeal, the impugned order may
very graciously be set aside and interim stay till the
final disposal of the suit may graciously be awarded
that the respondents should not change the situation of
the property and they should not alienate the suit
property in any manner. Any other relief which the
Hon’ble Court considers proper may very graciously be
awarded.

Appellants,

Dated: ________
Through: -
Syed Muhammad Afaq Shah,
Advocate High Court, Multan.

Certificate: -
Notice and copy of this appeal have
been sent to the respondents. The
postal receipts are annexed herewith.
Advocate

IN THE COURT OF DISTRICT JUDGE, MULTAN.

 Muhammad Akram etc. Vs. Muhammad Saqi

Application for grant of stay order

till the final disposal of appeal.

Respectfully Sheweth: -

1. That the above-captioned appeal has been filed before this

Hon’ble Court.

2. That the contents of the appeal may be considered as part of

this application.

3. That the applicants have a good prima facie case and there are
ample chances of its success.

4. That the respondents with malafide intention are going to

transfer and change the condition of suit property and if they
do so, then the applicants will have to suffer irreparable loss.

5. That balance of convenience lies in favour of the applicants.

Under these circumstances, it is humbly prayed

that stay order to the effect may graciously be awarded
that the respondents should not dispose off the suit
property and should not change the condition of it in
any manner till the final disposal of the appeal.

Any other relief which this Hon’ble Court

considers proper, may also be awarded.

Applicants,
Dated: ________
Through: -
Syed Muhammad Afaq Shah,
Advocate High Court, Multan.
IN THE COURT OF DISTRICT JUDGE, MULTAN.
 Muhammad Akram etc. Vs. Muhammad Saqi

Application for grant of stay order

till the final disposal of appeal.

AFFIDAVIT of: -
Muhammad Akram husband of Mst. Noor Jehan, D/o
Abdul Ghafoor S/o Raheem Bakhsh, caste Sheikh
Qureshi, R/o 64/64-A, Lal Kurti Multan Cantt.

I, the above named deponent do hereby

solemnly affirm and declare that the contents of
the above-titled application are true and correct
to the best of my knowledge and belief and
nothing has been kept concealed thereto.

DEPONENT

Verification: -
Verified on oath at Multan, this _____ day
of July 2003 that the contents of this affidavit are
true & correct to the best of my knowledge and
belief. Nothing has been kept concealed thereto.

DEPONENT

IN THE COURT OF DISTRICT JUDGE, MULTAN.

 Muhammad Akram etc. Vs. Muhammad Saqi

NOTICE

To

The appellants have engaged the undersigned as their

counsel and instructed to file the above-captioned appeal before the

court of District Judge, Multan.

I am sending the copy of the appeal along-with the

impugned order for your information.

Yours truly,

Dated: _______

Syed Muhammad Afaq Shah,

Advocate High Court, Multan.