2011CLC793 (PLP)

CH. MUHAMMAD TARIQ, J.

The instant civil revision was finally decided on 17-2-2003. The judgment was, however, re-called in review petition on the ground that the impugned judgment dated 17-2-2003 was passed without hearing the respondents.

2. Brief facts of the case are that dispute relates to stairs attached with Shops/Building No.BVI-9-S-177 situated in Ward No.6, Tehsil and District Sheikhupura. The above said Property No.BVI-9-S-177 was' consisting of two shops and stairs. The same were allotted, to one Ghulam Qadir son of Khair Din vide P.T.O. No.599592 on 14-11-1960. Muhammad Sadiq plaintiff/petitioner purchased one shop from Ghulam Qadir vide registered sale-deed dated 27-3-1969 along with the stairs. Defendant No.1 Muhammad Farooq along with other defendants tried to interference in the rights of the plaintiff/petitioner regarding the stairs forcibly and without any legal right. They were asked that plaintiff/petitioner is the owner of the shop along with the stairs and they have no right to interfere in it but they were bent upon to use the plaintiff/petitioner's stairs without any legal justification for which plaintiff/petitioner filed a declaratory suit with permanent injunction claiming himself to be the owner in possession of the stairs attached with the said building situated in Ward No.6, Sheikhupura City, and sought a decree that defendants/respondents be restrained from interfering in the stairs permanently.

3. The suit was resisted by the respondents/defendants. It was contended on behalf of defendant No.1 that Ghulam Qadir, the original owner of the shop associated Faqir Muhammad, predecessor-in-interest of defendants Nos.2' to '10 and agreement of association was also executed and, therefore, on the basis of the agreement Faqir Muhammad became joint owner of the shop with Ghulam Qadir along with stairs. It was further contended that sale-deed dated 27-3-1969 executed in favour of Muhammad Sadiq is illegal, against law and against the rights of the defendants. It was further stated that the plaintiff/petitioner is not the sole owner of the stairs.

4. From the divergent pleadings of the parties, learned Civil Judge framed the following issues:

(1) Whether the suit is barred by limitation? OPD (2) Whether the suit is false, frivolous and vexatious and the defendants are entitled to special costs? OPD (3) Whether the stairs in dispute are jointly owned by the parties? OPD (4) Whether the plaintiff is entitled to the decree as prayed for? OPP (4-A) Whether the plaintiff is the sole owner of stairs? OPP (4-B) Whether the sale-deed dated 27-3-1969 is void, illegal and against the right of defendants? OPD (4-C) Whether the defendants have got rights of easement to use stairs? OPD (5) Relief.

5. That after framing of issues, parties adduced their oral as well as documentary evidence and learned Civil Judge, Sheikhupura, vide judgment and decree dated 5-7-1997 dismissed the suit of the respondents.?

6. That feeling dissatisfied respondents filed an appeal which was allowed on 11-12-1997 by the learned Addl. District Judge, Sheikhupura, who reversed the judgment and decree of the learned trial court.

7. Learned counsel for the petitioner contends that the judgment and decree passed by learned trial court is based on facts and law. The petitioner is owner in possession of stairs which were purchased by the petitioner through registered sale-deed Exh.P.1. This deed was never challenged by the respondents, but the learned first appellate court has ignored the contents of Exh.P.1 and has reversed the judgment and decree of learned trial court merely on imagination and surmises. Therefore, civil revision be allowed, impugned judgment and decree be set aside and the judgment and decree passed by the learned trial court be restored.

8. Learned counsel for the respondents contends that the staircase between the two shops is joint property amongst the petitioner and respondents. The respondents have been using the stairs for the last more than 30 years. The respondents have no other stairs to climb up the roof and the petitioner' has no right to restrain the respondents from using the stairs for climbing up side. The deed of association further verifies and strengthen the version of respondents.

9. Arguments heard. Record perused.

10. The pivotal' issues are Issues Nos.4-A and 4-B which deals with the ownership of stairs and sale-deed dated 27-3-1969. The perusal of record reveals that the plaintiff/petitioner is the sole owner of stairs in dispute because he purchased the said stairs through a sale-deed registered on 27-3-1969 which still exists and it was never challenged by the respondents till today. According to Exh.P.1 the petitioner/plaintiff is absolute owner and in exclusive possession of the stairs. However, if he had allowed the respondents to use the stair case to approach his floor at any occasion, it does not create .a right of easement in favour" of respondents. Exh.P.2 the deed of association further confirms that the sale-deed is a legal document which was never cancelled or declared a void document by any court of law. Documentary evidence produced by the learned counsel for the respondents does not support the version of respondents pertaining to stairs.

11. Admittedly initially it was an evacuee property which was allotted to one Ghulam Qadir, who entered into deed of association Ghulam Qadir sold one shop to Faqir Muhammad and in Ex.P.2 it has been categorically mentioned that rest of the property except shop towards east shall be ownership of Ghulam Qadir. The perusal of Exh.P.2 clarifies that Faqir Muhammad is owner of one shop and has no concern what-so-ever with the rest of the property including the stair case.

12. As a result of above discussion, this civil revision is allowed, impugned .judgment and decree dated 11-12-1997 passed by the learned Additional District Judge, Sheikhupura, is set aside and the judgment and decree of learned Civil Judge, Sheikhupura, dated 5-7-1997 is restored. M.U.Y./M-11/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.