1998 PLP 53 (MLD)

Mazillah Khan Berkaichi for Respondents. Date of hearing: 1st July, 1997. The petitioners Saeed Ahmad, Wahid Ahmad and Said Ahmad (now deceased and represented by petitioners Nos.3 to 10) brought a declaratory suit to the Court of Senior Civil Judge, Mardan regarding courtyard of their balakhana which happened to be the roof of the respondents' three rooms. The suit was contested by the respondents on various legal and factual grounds including the plea of res judicata. After recording the evidence of the parties as they wished to adduce and receiving the reports of the local Commissioner the learned trial Court dismissed the suit of the petitioners with special costs of Rs.6,000 recoverable as money decree. The appeal of the petitioners there against was also dismissed with the modification of relieving the petitioners from the burden of special costs of Rs.6,000 vide judgment and decree of the learned Additional District Judge, Mardan dated 29-4-1985. Feeling aggrieved, the petitioners have invoked the revisional jurisdiction of this Court under section 115, C.P.C. for setting aside the judgments and the decrees of the Courts below and passing a decree in their favour as per the prayer made in the plaint. The respondents Mst. Khatoon Begum, Hamid Hussain Shah and Muhammad Hussain Shah have also filed Civil Revision No.527 of 1985 against the modification of exonerating the petitioners from special costs of Rs.6,

000. As both the revision petitions are the out-come of the judgment and decree of the learned Advocate Court, therefore, this judgment shall also dispose of the connected Civil Revision mentioned above.

2. Facts of the case available on record are that the disputed courtyard (which is in fact roof of the Hall) alongwith other property forming one unit and owned by non-Muslim was divided by the Deputy Settlement Commissioner, Mardan (respondent No.4) in two sub-units being evacuee property. One sub unit consisting of shops and balakhana falling towards northern side was allotted to one Furqan Muhammad son of Khan Muhammad and another sub-unit comprising of a house towards the southern side was allotted to the predecessor in-interest of the respondents. It is alleged that Furqan Muhammad later on sold it to the plaintiffs/petitioners. The balakhana purchased by the petitioners have three doors opening towards the southern side on the roof of the Hall. The said roof is used as courtyard of the balakhana. The respondents claimed title over the Hall as allottees. The petitioners being in occupation and use of the same roof as courtyard filed the instant suit for declaration to the effect that they are owners of the courtyard describing the same as integral part of their purchased property of shops and balakhana. A perpetual injunction was also sought against the respondents not to restrain them from using it.

3. A number of issues were framed in the case in view of the pleadings of the parties. Since the only question agitated by the petitioners before me as well as before the learned Additional District Judge for determination is that of finding on issue No.3 'res judicata', therefore, the other issues need not be discussed in this judgment.

4. The predecessor-in-interest of the respondents filed Suit No. 138/1 Nim -Dar-Nim on 18-5-1971 regarding the disputed courtyard which was dismissed by the learned trial Court on 12-1-1972 but on appeal it was decreed by the learned District Judge and upheld by this Court and the Supreme Court of Pakistan. The parties to above suit were predecessors of the respondents and petitioners Nos.3 to 10 alongwith Furqan Muhammad from whom the petitioners have derived title. The subject-matter was the same and the competent Court of civil jurisdiction has passed final decree in the matter. The dispute in the cited suit was with regard to right of easement, adverse possession and improvements in the instant round of litigation the petitioners have claimed ownership of the courtyard and right to use it without restraining them.

5. The learned counsel for the petitioners contended that in the earlier suit there was no issue with regard to the title and right to use the disputed courtyard, and thus,' the suit of the petitioners/plaintiffs was not hit by the principle of res judicata.

6. The learned counsel for the respondents while supporting the impugned judgments and decrees on issue No.3 read certain relevant portions of the judgments in the earlier suit and maintained that even if the ownership and right of use of the courtyard was no directly in issue still in the present suit it was certainly substantially in issue and the predecessor-in-interest of petitioners Nos.3 to 10 could have raised this issue in the earlier suit failing which the judgments in the previous suit shall hit the instant suit on the principle of constructive res judicata.

7. After hearing the learned counsel for the parties and going through the record I have come to the conclusion that the issue regarding applicability of res judicata is a mixed question of law and facts which require to be decided on the basis of the evidence produced by the parties. The concurrent findings of fact recorded by the learned two Courts below cannot be interfered with in exercise' of revisional jurisdiction of this Court unless some material evidence is shown to have been overlooked or misread. It has been held by the learned trial Court that the earlier suit was between the same parties and the same subject-matter was', finally decided by a competent Court. The matter in issue was directly or substantially in issue in the earlier suit. The learned Appellate Court has also concurred with the findings of the learned trial Court. The learned counsel for the petitioners has failed to point-out any misreading or non-reading of the material evidence by the learned Courts below or jurisdictional defect.

8. It is an established fact that house including the Hall situated towards the southern side was allotted to the predecessor-in-interest of the petitioners which includes not only the land underneath the construction but also the superstructure thereon. The alleged disputed courtyard is undisputedly roof of the Hall allotted to the respondents. The permission for use of the same granted to the petitioners does not establish their title over it. It was held in the previous suit that when a property is transferred/allotted to somebody it shall be naturally presumed that its roof has also been transferred/allotted. The roof is always an integral part oft the construction and the roof does not stand without the construction underneath it. The rooms may be without courtyard. Before splitting in two sub-units the disputed roof may have been used as courtyard of, the balakhana but after its splitting in two sub-units i.e. northern and southern the roof went to the southern sub-unit and allotted to the predecessor-in-interest of the respondents.

9. As regards Civil Revision No.527 of 1985 the learned trial Court has wrongly granted special costs of Rs.6,000 under section 151, C.P.C.. Special cost can only be granted under section 35-A, C.P.C. upto Rs.5,000 and that too in case of false or vexatious claim and reasons are to be recorded for awarding special costs. No powers under section 151, C.P.C. could be exercised in a matter for which a specific provision is there in the Civil Procedure Code. In these circumstances, the learned Appellate Court has rightly exonerated the respondents from payment of special costs of Rs.6,000.

10. For the reasons stated above, both the revision petitions are dismissed. Parties are left to bear their own costs.

11. Above are the reasons for the short order passed by me on 1st of July, 1997. A.A./2184/P Revision dismissed.