1989 PLP 1089 (MLD)

Remaining Respondents: Ex parte. Date of hearing: 24th January, 1989. In this revision petition judgment and decree, dated 11‑4‑1988 passed by the learned Add]. District Judge, Sialkot, dismissing the petitioners' appeal from judgment and decree, dated 18‑11‑1987 passed by the learned trial Court dismissing their suit has been called in question.

2. The petitioners claimed that the defendants had blocked the passage of 16‑1/2 feet in width running in between the doors of their houses to the village. The suit was contested. After recording evidence of the parties the learned trial Court dismissed the suit through judgment and decree, dated 18‑11‑1987 which has been upheld by the learned lower appellate Court vide judgment and decree dated 11‑4‑1988.

3. Sardar Khan petitioner No.1 who has argued the case himself maintained that the findings of the two Courts below are based on misreading of the record.

4. I have gone through the plaint in the suit in which no particulars of land with Khasra numbers has been given on which the existence of the said passage was being claimed. It is in the report of the Patwari Exh. 1 that Khasra No.582 has been mentioned, who reported that Fair Ahmad, Mian Muhammad Boota, Inayat, Muhammad Hussain, Din Muhammad, Ghulam Sarwar, Ali Ahmad and Rehman had encroached upon the thoroughfare. It is not mentioned in the report that the said persons or the defendants were joined in the proceedings and were heard at the time of inspection of the spot by the Patwari. No document from the revenue record has been produced by the petitioners to establish that Khasra No.582 was not owned by any private person and was as a matter of fact a thoroughfare. The learned trial Court appointed Local Commissioner who made report Exh.DW.3/1 with the site‑plan Exh.DW.3/2. The Local Commissioner has not supported the case of the petitioners. The report of the Local Commissioner is explicit on the point and has not been shown to be wrong. The Courts below have not committed any material irregularity and illegality in passing the impugned judgments and decrees, so far this aspect of the case is concerned.

5. The petitioner has also challenged the part of judgment and decree regarding recovery of special costs of Rs.3,000.

6. I have heard him and examined the record to satisfy myself about this part of the decree. Learned counsel for the respondents could not justify the decree to this extent because except oral evidence there is no evidence m the form of documents to prove that the petitioner had been frivolously litigating with the respondents. The judgment and decree of the learned Courts below to the extent of recovery of an amount of Rs.3,000 as special costs from the petitioner, therefore, is not justified and is based on no reliable evidence on the record. To this extent the Courts below have committed material irregularity and illegality.

7. For the foregoing reasons this revision petition partly succeeds. It is accepted only to the extent of decree passed against the petitioners for recovery of an amount of Rs.3,000 as special costs and is set aside. There will, however, be no order as to costs. M.Z.S./S‑388/1 Order accordingly.