2007 PLP 2724 (YLR)

HAMID FAROOQ DURRANI, J.

A suit for permanent injunction was filed by Abdul Manan son of Muhammad Akbar against Maqsood-ur-Rehman and Chan Laib sons of Aziz-ur-Rehman which was decreed by the trial court and appeal thereon was also dismissed by the Appellate Court. The petitioner etc. filed a Revision Petition bearing No.64 of 2003 aggrieved from the judgments and decrees of the learned two Courts.

2. During the execution of the decree the judgment debtors filed an objection petition and during the proceedings, the learned executing Court appointed a local commission for spot inspection and submission of report on the points of reference. The decree holders filed an appeal grudging the said order which was accepted by the appellate Court, hence the Revision Petition No.33 of 2003 was filed before this Court. There was also an application for initiating contempt of Court proceedings against the judgment-debtor filed by the decree-holders. The same was dismissed by the learned two Courts, which resulted in filing of Civil Revision No. 100 of 2003. As all the revision petitions arise out of the same set of litigation between the parties, they are taken up together for decision through this single judgment.

3. The facts relevant for the purpose are that on 19-1-1994 the respondent in Civil Revision No.64 of 2003 filed a suit against the petitioner praying therein for a decree of permanent injunction against the petitioner in terms that the house of the respondent/plaintiff situated in Mauza Kokal, Tehsil and District Abbottabad was at a lower level than the houses of petitioners/ defendants. The plaintiff/ respondent was using the path from points A to D, as shown in the line plan attached with the plaint, since his forefathers, besides, the natural .drainage of the plaintiffs house was also through point "D which was in continuance since time immemorial. The defendants/petitioners were not legally entitled to raise construction in a manner whereby the drainage from the house of the plaintiff was caused to be obstructed. Further, they were not entitled to demolish the bath-room of plaintiff/respondent located between points A and D which could result in discontinuation of use of the bath-room by the inmates of the house of the plaintiff and obstruction of the easement rights including right of passage and discharge of water of the plaintiff/respondent. A further prayer for demolition of construction raised by the defendants/petitioners at the disputed-points, if any, and for restoration of rights of easement of the plaintiff, was also made in the plaint.

4. The petitioners/defendants entered the proceedings by filing a joint written statement on 7-5-1994. It is noted that the contents of the written statement were evasive and no specific denials were made therein except that the plaintiff had no concern with the spot in dispute nor he had any rights of easement thereabout. After settlement of issues the .parties to the suit were allowed to produce their respective evidence and on 8-12-2001 the learned trial Court was pleased to pass a decree, as prayed for, in favour of the plaintiff/respondent.

5. The petitioners, aggrieved from the decree of the trial Court filed, an appeal before the learned District Judge, Abbottabad, which was also dismissed on 14-11-2002.

6. Learned counsel for the petitioners/judgment-debtors contended that no documentary evidence was attached by the respondent/plaintiff with the .plaint which could divulge that the plaintiff had any right of easement regarding the disputed path/property. The said rights of easement regarding .the bath-room were not even claimed by the plaintiff/respondent in his plaint. It was further contended -that the learned trial Court failed to strike a specific issue regarding the right of easement vested in the plaintiff/respondent. Besides, the said question was also left undecided and instead the suit was decreed on the. point of obstruction of the path only. On the other hand the learned appellate Court went on to also decide the question of rights of easement of the plaintiff/respondent on the same set of evidence thereby committed illegality and material irregularity, the learned counsel maintained. It was further argued that the evidence led. by the respondent/plaintiff was extraneous to his pleadings which was not itself confidence inspiring. In his view, the concurrent findings of learned two Courts were liable to reversal.

7. The learned counsel appearing for the respondent, while attempting to dislodge the arguments from the other side, firstly referred to a report by local commission wherein the entire controversy between the parties was endeavoured to be resolved through spot inspection: He further referred to the statement of D.W.2/plaintiff wherein the easement was specifically claimed by the said witness 'and his averments were supported through the statements of P.Ws.3 and

4. The learned counsel also referred to the statement of local commission recorded as C.W.1 and pointed out that the construction though. prohibited during the proceedings of the suit was still going on at the time of spat inspection by the commission as per her statement. He contended that the decree was passed as prayed for in the plaint which was based on solid evidence and was in accordance with the spirit of law. The impugned findings, therefore, did not suffer from any illegality and were liable to sustain.

8. It would be useful to refer to the report of local commission dated 26-1-1995 who visited the spot on 26-1-1995. The statements of the plaintiff besides Abdul Samad and Muhammad Farid were also recorded during the proceedings' in addition to certain photographs of the spot taken and attached with the report. It transpires from the commission .report that at the disputed point the defendants had raised an incomplete construction which caused obstruction of the path in dispute and also the drainage of natural/rain water from the house of the plaintiff/respondent. It is further noticeable that there is no other drainage point from the house of the plaintiff which is located at a lower level than other the point of exit from the plaintiffs house. The report further reveals that the drainage of the disputed bath-room ran from a point (Point No.6) where the defendants/petitioners had raised construction of a room. It was also mentioned that there did not exist any alternative exit of the rain water from the house of the plaintiff except the point obstructed through the construction in dispute. Similarly, the statements of Abdul Samad an elder of .the locality revealed that the bath-room was used since the time of grandfather of the parties which was now obstructed by the defendant. A similar statement was given by Muhammad Farid, another elder of the same locality. The local commissioner also appeared as C.W.1 and stood the test of cross-examination by the parties but she affirmed the factum of blockage of the path and demolition of the bath-room by the defendants. She further stated that at the time of visiting the spot the construction was being carried by the defendants.

9. It is further observed that the obstruction of rights of easement in favour of the plaintiff were categorically; mentioned in the plaint and removal thereo was also claimed. The specific issue regarding the said right though was not struck by the learned trial Court but Issue No.5 regarding the entitlement of the plaintiff to a decree for perpetual injunction and the evidence led thereon sufficiently covered the said point of controversy. The learned two Courts found the report of the commission to be well-founded and impartial whereafter the factual controversy was set at naught:

10. In the light of the evidences available on record tree concurrent findings of the learned two Courts did not warrant any interference by this Court in its revisional jurisdiction.

11. Adverting to Civil .Revisions No.100 of 2003 filed by the decree-holders against the judgments of learned two Courts regarding dismissal of his application for initiation contempt of Court proceedings against the judgment debtors. It is noticed that the revision petition was filed with a delay of seven days. An application under section 5 of the Limitation Act fors condonation of delay was although filed along with the revision petition but no cogent reason for the condonation sought was mentioned therein. It was taken as al ground that the petitioner was away from) the station in connection with his duty, therefore, could not file the revision petition in time.

12. It is to be noted that the previsions of section 5 of Limitation Act would not apply to a revision petition; therefore, the requisite condonation cannot be allowed, besides, no good ground is made out therefor.

13. Taking up the matter by way of Civil Revision No.33 of 2003 it is seen that in the course of execution of decree, the decree-holder submitted an objection petition in terms that the decree under execution was vague and had not disclosed the specific portion of the disputed construction to be demolished. It was further alleged that executing Court without notice to the judgment-debtor Nos.2 and 3 issued warrants of possession, therefore, execution proceedings could not be continued and were liable to be consigned.

14. On 3-9-2004, the learned executing Court, while proceeding with the said objection petition, ordered the appointment of local commission with the directions:-- (1) To inspect the suit property in presence of the parties. (2) To prepare site-plan. (3) To, record statements of the parties and independent witnesses. (4) To determine that whether any portion of the judgment-debtors house had been demolished by the official of the Court. (5) To give recommendations for the execution of the decree in the light of judgment/decree dated 8-12-2001.

15. Feeling aggrieved from the said order the respondents/decree-holders filed an appeal before the learned Additional District Judge (III), Abbotabad. The said appeal was allowed on 31-10-2005 whereby the order of appointment of local commission by the execution Court was set aside.

16. The impugned judgment of the appellate Court would not require any interference by .this Court in its revisional jurisdiction. Firstly for the fact that) executing Court was not a civil Court for the purposes of Order XXVI, rule C.P.C., therefore, it could not appoint locals commission in furtherance of execution of al decree. Secondly as during the proceeding the similar exercise was taken up by the trial. Court and the report of the commission, then appointed, lent support to the judgment and decree passed in the main contest??????????? .between????????? the??????? parties. They appointment of commission, besides being unwarranted??????? during?? the??????? execution) proceedings, would only tantamount to the re-opening of the matter. It is further seen that the impugned recourse was out of scope of execution proceedings whiles examined in the light of legal provisions relevant for the matter.????????? There is no ambiguity regarding' the decree under execution, therefore, she controversy between the parties could be set at rest by recording pro and contra evidence by the learned executing Court on the questioned points.

17. In the wake of the foregoing this Court is not inclined to interfere, in its revisional jurisdiction, with the findings impugned through all the revision petitions in hand. The same are hereby dismissed along with miscellaneous applications while the parties are left to bear their respective costs. H.B.T./140/P?????????????????????????????????????????????????????????????????????????????????????? Revisions dismissed.