P L D 2006 Lahore 121 (PLP)

JAWWAD S. KHAWAJA, J.

Ilam Din petitioner/defendant impugns the judgments and decrees dated 27-3-2002 passed in two suits by the learned trial Court and the appellate judgments and decrees dated 8-12-2003, whereby the decrees of the learned trial Court have been affirmed.

2. Before considering the merits of the present petition I need to address the question of limitation. Admittedly, the petition has been filed after the expiry of the period of limitation. The petitioner has, however, moved an application under section 5 of the Limitation Act seeking condonation of delay. On the previous date of hearing i.e. 18-10-2005, learned counsel for the respondents had stated, inter alia, that section 5 aforesaid was not applicable in the case of revision petitions. To support his contention, he has today referred to the case titled Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). It is established by now that section 5 of the Limitation Act does not apply in the case of revision petitions filed beyond time. This application is, therefore, dismissed.

3. Learned counsel for the petitioner however, contends that in view of the circumstances of the present case, as noted in the admitting order dated 22-6-2004, this is a fit case in which suo motu jurisdiction of the Court under section 115, C.P.C. should be exercised. He has also cited the case titled Haji Rehmdil v. The Province of Balochistan and another (1999 SCMR 1960). Considering the said precedent and also the circumstances of the case noted in the admitting order, it does appear to me that the learned Courts below fell into material error while decreeing the declaratory suit filed by the respondents and granting the permanent injunction prayed for by them. If this error does in fact exist and is not rectified, it will result in grave miscarriage of justice.

4. In these circumstances, the suo motu revisional jurisdiction of the Court is available and must be exercised to ensure that the ends of justice are met. Failure to do so would constitute 'abdication of the important supervisory function with which the High Court is invested. In the admitting order. I have noted some of the material errors in the judgments of the learned Courts below. I, therefore, intend to examine the matter in detail and, if material error in the exercise of jurisdiction by the Courts below is established, to correct such error.

5. Learned counsel for the respondents Nos. 1 to 7, who are the contesting respondents, was asked to argue the matter. He, however, did not do so and insisted that he would challenge the Court's decision to exercise suo motu revisional jurisdiction, before the Honourable Supreme Court. He wanted the case to be adjourned to enable him to do so. This request being unjustified was declined. However, in order not to prejudice the contesting respondents I was prepared to adjourn the case to 24-10-2005. Learned counsel for the respondents, however, continued to insist that he would not argue the revision petition before he had challenged the Court's decision to exercise suo motu jurisdiction. Acceding to the intransigent demand of learned counsel would mean an indefinite postponement of adjudication in the case. This cannot be allowed. I have, therefore, been left with no option but to proceed in the matter, unfortunately, without assistance from counsel.

6. At this point, it is worth noting that on 24-2-2005 the case was fixed for hearing but was adjourned at the request of learned counsel for the respondents subject to payment of Rs.500 as costs. Once again on 28-9-2005, the petition was listed, and even though learned counsel for the respondents was present, he sought an adjournment. This request was allowed in the circumstances, and for reasons noted in the order dated 28-9-2005 which is reproduced as under because of its relevance:- "Mr. Tahir Mehmood, Advocate,' for the petitioner. Mr. Muhammad Kazim Khan, Advocate, for respondents Nos.1 to

7. Costs ordered on 24-2-2005 have been paid.

2. Today once again learned counsel for respondents Nos. 1 to 7 seeks an adjournment because he has not been able to prepare the case. This adjournment request is wholly unjustified keeping in mind that even on 24-2-2005 the case was adjourned at the request of learned counsel for respondents Nos. 1 to 7 subject to payment of costs.

3. In the above circumstances, I could have declined the adjournment request and proceeded in the matter, however, in order not to prejudice the case of the respondents Nos.1 to 7 on account of lack of preparation of their counsel, and in the interest of justice one final adjourmnent is being allowed.

4. Let the case be listed for hearing on 18-10-2005. This adjournment is subject to payment of Rs.2000' as costs." Any further indulgence shown to the contesting respondents, in these circumstances, can only be at the unacceptable cost of injustice to the petitioner.

7. It has consistently and emphatically been held by this Court that decisions in cases should not be delayed simply because a party chooses to assail an interlocutory order before a higher forum or (as in the present case) has merely formed an intention of doing so. If adjournments as a rule are allowed in every case where counsel intends to impugn an interlocutory order, contentious matters would never be decided. This state of affairs, it should be obvious, cannot be allowed. Here I am also conscious of the responsibility of the High Court in terms of Article 201 of the Constitution. Postponing the hearing of this case in the circumstances noted above, will be binding precedent for subordinate Courts which, potentially, can bring their working to a stand still.

8. The conduct of the respondents and their learned counsel, which appears from the above narration of facts, indicates that they are interested in delaying the adjudication of this revision petition. This attitude cannot be countenanced, particularly in view of the fact that the present litigation commenced as far back as 1994 and all possible accommodation has been afforded to counsel for the respondents in this case. Delay in adjudication of the petition, especially when it is without c valid reason would itself amount to denial of justice. Adjournment requests these days are being made with increasing frequency and, many times, without cause. It is about time advocates, individually,, and their professional bodies collectively, recognize the harmful consequences of unjustified delays and do something to address the problem.

9. I now take up for consideration the merits of the petition. The dispute between the parties relates to a common passage. The respondent Hassan Din, who was plaintiff in one of the suits, and his wife Zainab Bibi deceased (now represented by her L.Rs.), who was the plaintiff in the second suit, are the key protagonists in this litigation. It is their case that no passage was ever created and that a compromise in an earlier pre-emption suit which purported to create the passage in question over land partly owned by them, is not binding on them. Ilam Din petitioner/defendant, on the other hand, asserts that a passage was created through the aforesaid compromise which was duly made part of the decree dated 10-12-1987 in an earlier suit filed by his predecessor-in-?interest Muhammad Iqbal (respondent No.8) to pre-empt a sale made in favour of Mst. Zainab Bibi. He claims the right to use the common passage.

10. At this point, it is necessary for a proper appreciation of the present controversy, to give brief particulars of the aforesaid pre-emption suit. The said suit had been filed by Muhammad Iqbal (respondent No.8) against Mst. Zainab Bibi in respect of land measuring 71 Kanals, 14 Marlas situated in Mauza Gondlanwala, Tehsil and District Gujranwala. The parties, namely, Muhammad Iqbal and Mst. Zainab Bibi settled the matter through the above referred compromise. It is not disputed between the parties that the pre-emption suit was decided on the basis of the compromise. The compromises Exh.P-2 in the present case.

11. In view of its relevance and with the object of identifying the passage, which is subject-matter of the present litigation, the relevant portion of the compromise (Ex.P-2) is reproduced as under:-- The above extract from Exh. P.2 shows that land belonging to Hassan Din, Zainab Bibi and Muhammad Iqbal in the Khasras respectively owned by them was included in the passage.

12. Mutation No.2818 dated 27-9-1993 has been sanctioned on 27-9-1993 to reflect the above compromise. The aforesaid Muhammad Iqbal (respondent No.8) thereafter, through exchange deed registered on 24-10-1993, has exchanged the land owned by him (including the area covered in the disputed passage) with land owned by the petitioner Ilam Din. The present dispute has arisen because the, husband and wife, namely, Hassan Din and Mst. Zainb Bibi have stopped Ilam Din petitioner from using that part of the passage, which was carved out of the Khasra numbers belonging to them.

13. It is appropriate, at this stage, to set out the nature and brief particulars of-the two suits respectively filed by Hassan Din and Zainab Bibi. Hassan Din has sought a declaration to the effect that he is full and absolute owner in possession of Khasra Nos.4275 and 4276. By way of consequential relief, he has prayed for a permanent injunction to restrain the petitioner Ilam Din, his wife Zainab and Muhammad Iqbal from using the said Khasra numbers as part of the common passage: What is of significance is that Hassan Din has arrayed his wife Zainab Bibi as defendant No.2 in the suit and has made serious allegations against her. In paragraph 2 of the plaint, he has averred that Zainab Bibi, without his knowledge and in connivance with the Patwari, Girdawar and Revenue Officer, has obtained Mutation No.2818 based on the decision dated 10-12-1987 in the pre-emption suit. It has further been alleged by him that Mst. Zainab Bibi has collusively shown the existence of a passage in Khasara Nos.4271 and 4274 owned by her, although these Khasra numbers are under cultivation. It has also been stated that he (Hassan Din) was not a party in the pre-emption suit and was not a party to the compromise (Exh.P-2) which, therefore, does not bind him. Other objections of a factual and legal nature have also been raised against the validity of the compromise which have been discussed in a later part of this judgment. I have not been able to find any averment in Hassan Din's plaint that the had no knowledge of the terms recorded in Ex.P-2. In this suit, Zainab Bibi filed a written statement admitting every averment in the plaint. After her death, her L.Rs. have also filed an amended written statement conceding the claim in the plaint.

14. In the suit filed by Mst. Zainab Bibi, she. has sought a declaration to the effect that Mutation No.2818 is void and that she is exclusive owner of Khasra Nos.4271 and 4274. By way of consequential relief, she has sought an injunction to restrain Ilam Din from using any portion of these Khasra numbers as a passage. From circumstances, which are discussed below, I am not in any doubt that the husband and wife have collusively, and under a common plan, launched their suits with the object of backtracking from the commitments made in the compromise (Ex.P-2) and with the object of depriving the petitioner Ilam Din of the use of the disputed passage.

15. The case of Ilam Din, simply put, is that the passage in question was mutually agreed upon between Muhammad Iqbal (from whom he acquired title) on the one hand, and Zainab Bibi and her husband Hassan Din, on the other. The question, therefore, which requires adjudication, is twofold. Firstly, whether Hassan Din and Zainab Bibi are bound by the compromise (Ex.P-2) and, secondly, whether Ilam Din has acquired a right to use the passage as transferee from Muhammad Iqbal (respondent No.8). This controversy was encapsulated in issues Nos.8 and 9 in Hassan Din's suit, which were framed in the following terms:- "

8. Whether the plaintiff is owner in possession of property Khasra No.4275 measuring 2 kanals and Khasra No.4276 measuring 8 Kanals and Mutation No.2818 dated 27-9-1993 is void, illegal and have [sic] no, effect upon the rights of the plaintiff? OPP

9. Whether the plaintiff is entitled for the decree of declaration and permanent injunction as has been prayed for? OPP."

16. In the suit filed by Zainab Bibi, the controversy is reflected in issues Nos.9 and 10 framed as under:- "

9. Whether the plaintiffs are owners in possession of property Khasra No.4271 measuring 8 Kanals and Khasra No.4274 measuring 6 Kanals and the Mutation No.2818 dated 27-9-1993 and exchanged [sic] deed registered dated 24-10-1993 are void, illegal and have no effect upon the rights of plaintiffs? OPP.

10. Whether the plaintiffs are entitled for the decree of declaration with permanent injunction as has been prayed for? OPP. "

17. I first take up the case of Hassan Din. At the very outset, it is to be noted that Hassan Din did not appear as a witness and did not submit himself to cross-examination under oath. He appointed one Muhammad Aslam S/o Ibrahim as his special attorney, who appeared as P.W. and was the sole witness in support of Hassan Din's case. This witness did not have any personal knowledge as to the facts of the case or the matter in controversy. He deposed as under:-

18. The above statement made by Muhammad Aslam (P.W.1) is the clearest example of inadmissible hearsay. It is utterly worthless as evidence of the facts in issue. It is appropriate, at this stage, to advert to the contents of Hassan Din's plaint, briefly noted above. The averments therein were of 'a factual nature and had to be proved through the testimony of Hassan Din himself or any other witnesses, who could have deposed to the same on the basis of their own knowledge of these factual assertions. In the absence of any such witness, the plaintiff must fail because the onus of proving the crucial issues Nos.8 and 9 was on him.

19. Having reached this conclusion, I have nevertheless examined the compromise (Exh.P-2) and the judgments of the learned Courts below, who have, unfortunately, not taken account of the fatal flaw in Hassan Din's case noted above. The learned Appellate Court has merely paraphrased the judgment of the learned trial Court and has not itself discussed the evidence, which was considered by the learned trial Court. It is apparent from the contents of paragraphs 14 and 15 of the appellate judgment that the learned Additional District Judge was under the erroneous view that the matter, being adjudicated by him, was a revision petition rather than a first appeal. The appeal has been decided in the few lines of these paragraphs, which are as under:- "

14. Learned counsel for the appellant has failed to point out any portion of evidence which was misread or non-read by the trial Court and findings of the trial Court on issue No.9 are reasonable according to evidence available on the record. I fully share the observations made by the trial Court on issue No.9 as well as on remaining issues.

15. After careful perusal of evidence available on the file I see no infirmity or illegality in the impugned judgment and decree, No one can be penalized by the act which was not done by him." The learned appellate Court has not appraised the evidence as it was required to do as a Court of first appeal.

20. In the succeeding paragraph, the learned appellate Court has held that it was for the appellant Ilam Din to prove that Mutation No.2818 was sanctioned correctly according to law. The mutation has been discarded on the ground that no Revenue Officer was produced in order to prove its genuineness. This observation is wholly misconceived. There was no necessity for producing any Revenue Officer in the present case because the mutation was sanctioned on the basis of the order dated 10-12-1987 passed by the learned trial Court in the pre-emption suit. The order of the said Court expressly stipulated that the compromise would be deemed to be a part of the said order. In any event, Mutation No.2818 is not of much relevance in the present controversy, as noted in paras. 23 and 24 below:

21. The appellate decree, for the reasons given above, is clearly not sustainable as it is a result of failure of the Court to exercise the appellate jurisdiction vested in it, and also because there is material irregularity in the exercise of such jurisdiction.

22. I now take up for consideration the judgment of the learned trial Court on issues Nos. 8 and 9, reproduced above. It is in this judgment that the issues have been discussed, while the appellate Court, in a mechanical manner, has merely followed the trial Court. While deciding issue No.8, the learned trial Court has relied on the testimony of Muhammad Aslam (P.W.1) who was the special attorney of Hassan Din. For the reasons noted in paragraphs 17 and 18 above, reliance on the testimony of this witness was wholly illegal. Ilam Din, on the other hand, produced Muhammad Ashraf as D.W.1 and himself appeared as D.W.2 to support his case. Both D.Ws in categorical terms, deposed that the passage, which is in dispute, had, in fact, been created and had been in the common use of the parties. Muhammad Ashraf (D.W.1) is a credible witness. He conceded that the L.Rs. of Mst. Zainab Bibi had wrongly obstructed the use of that portion of the passage, which was comprised of the area owned by Hassan Din and Zainab Bibi, while the other part of the passage comprising of the land originally owned by Muhammad Iqbal, was still in use. The testimony of the D.Ws. remained unshaken in cross-examination. Their testimony is also corroborated by the contents of the compromise (Exh.P-2) which were later reflected in Mutation No.2818.

23. The learned trial Court observed that it was unclear as to who had obtained sanction of Mutation No.2818. This observation, apart from being factually incorrect, is wholly irrelevant in the present case because the said mutation was not based on any fresh transaction between Muhammad Igbal and Zainab Bibi. The receipt by the Revenue Officer, of a certified copy of the order of the learned Civil Court dated 10-12-1987 was, by itself, sufficient for the purpose of recording the mutation. Apart from this, Hassan Din, in his plaint, had made an allegation that the mutation had been obtained by his wife Mst. Zainab Bibi. This averment had been accepted as correct by Zainab Bibi and therefore, stood .proved. As there is no evidence on record of any collusion or foul play on the part of the Revenue functionaries, the sanctioning of Mutation No.2818 cannot be faulted although its significance and. probative value may only be limited, as discussed below.

24. There is an aspect of the case which has been overlooked by the learned Courts below in their zeal to do away with Mutation No.2818. It is well-settled law that a mutation does not create or extinguish any right or interest in the property specified therein. A mutation is merely a record of rights which have been acquired or extinguished by parties through other legally recognized means, prior to the sanctioning of a mutation. In the present case, the right or 'interest of the parties was created by the compromise (Exh.P-2) and not by Mutation No.2818. This right or interest came to vest in the parties because of the compromise and could be asserted by them regardless of the fact that the same was or was not entered in any mutation. The learned Courts below, therefore, misdirected themselves by proceeding on the erroneous premise that Mutation No.2818 had resulted in the creation of rights in favour of the parties, in the disputed passage.

25. I next take up for consideration two aspects of the compromise (Exh.P-2) which prevailed with the learned trial Court while decreeing Hassan Din's suit. It was, firstly, noted that Hassan Din was neither a party in the pre-emption suit and nor was he one of the contracting parties in the compromise (Exh.P-2). It is true that in the text of the compromise Hassan Din was not mentioned as one of the parties. However, he undeniably was one of the attesting witnesses. The learned trial Court considered extensive case-law while concluding that' attestation of a document by a witness does not mean that the witness had knowledge of the contents of the document or was bound by its terns.

26. As a general principle of law, there can be no cavil with the aforesaid observation made by the Court. However, the question as to, whether Hassan Din was aware of the contents of Exh.P-2 or intended to be bound by its terms, is one of facts and has to be determined on the basis of evidence. Here it may be noted that in his plaint, although Hassan Din raised many objections to Exh.P-2, he did not deny knowledge of its contents. Additionally, the circumstances of the case are such that knowledge of the contents of Exh.P-2 must be imputed to Hassan Din. Firstly, as noted above, Hassan Din did not appear as a witness to testify that he was unaware of and was not committed to the terms of Exh.P-2. This is of the greatest significance because his failure to testify and be cross-examined on oath, raises the inference that had he appeared he could not have denied knowledge of the terms of Exh.P-2 or that a passage existed on Khasra Nos. 4725 and 4726.Secondly, the evidence of the D.Ws proves that a common passage existed on parts of Khasra Nos.4275 and 4276 and remained in use from the date of the compromise. The failure of Hassan Din to appear as a witness, coupled with the uncontroverted testimony of the D.Ws conclusively proves that Hassan Din was fully aware of the terms of Exh.P-2 and had, in fact, acted upon the same for a period of almost seven years preceding the filing of his suit.

27. The case-law, referred to in the judgment of the learned trial Court and relied upon by it, also supports the case of Ilam Din petitioner/defendant. It is true that mere attestation of a document by a marginal witness does not preclude such witness from denying his consent to the transaction incorporated in the document. However, it is equally well-settled that where evidence and circumstances show that the attesting witness was a close family member of a party to the document and was otherwise aware of the nature and contents of the document, he is bound by the terms of such document to the extent it affects his rights. This is the ratio of the precedents cited in the judgment of the learned trial Court, which unfortunately, has not been applied in the matter.

28. The conclusion in para. 26 above is further strengthened by the fact that Hassan Din was the husband of Mst. Zainab Bibi and father of her attorney Muhammad Azam. There is no evidence of any estrangement between him and his family. Moreover, Hassan Din also permitted the use of portions of Khasra Nos. 4275 and 4276 as part of the disputed passage, without objecting to the same. There can be no evidence stronger than this to show that Hassan Din was not only aware of the contents of the compromise but was a party to the compromise. There can be no doubt, in the light of such compelling evidence, that Hassan Din had fully accepted, acquiesced and agreed to the terms of the compromise. He was thus bound by the terms of the compromise (Exh.P-2) even though he may have signed the same ostensibly as an attesting witness. If any support for this proposition is required, reference can be made to the cases titled Torabaz Khan and another v. Nanak Chand and another AIR 1932 Lahore 566 and Feroz Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647 and to the precedents referred to' in the judgment of the learned trial Court.

29. Estoppel was also pleaded and argued by the petitioner/defendant based not only on the attestation of Exh.P-2 by Hassan Din, but also on account of his conduct, noted above. The circumstances, sufficient to establish estoppel, have already been considered above. Hassan Din himself has not appeared in Court to controvert the same. The principles of law, therefore, which have been enunciated by the Privy Council in the case titled Pandurang Krishnaji v. M. Tukaram and others AIR 1922 .Privy Council 20, apply in the present case. In the said precedent, the Privy Council reiterated the general rule that attestation of a document alone, did not operate as estoppel against the attester or raise the inference that he was aware of the contents of the documents. It was, however, clearly noted that this was a question of evidence and that the facts of a case would determine if the attester was estopped or was aware of the contents of the document attested by him. In the circumstances of this case, which have been elaborately discussed above, there can be no doubt that Hassan Din was estopped from raising the pleas set out in his plaint and from preventing the petitioner from un?interrupted use of the disputed passage.

30. The learned trial Court has next taken note of the fact that Khasra Nos. 4275 and 4276 were not subject matter of the pre-emption suit and, therefore, the compromise was compulsorily registrable under section 17 of the Registration Act. This observation is also not legally well-founded. The compromise (Exh.P-2) did not operate to transfer or extinguish title in any part of the land included in the disputed passage. The compromise merely stipulates that the property of the parties shall be used as a common passage. At most, this results in the creation of an easement over the suit property in the form of a common right of way. There is no evidence on record to show that the parties had put any monetary value to the easement mutually created by them as incorporated in Exh.P-2. It is true that the right of common use incorporated in G Exh.P-2 can have economic value. There is, however, no evidence on record that such value exceeded one hundred rupees: Thus, even if Khasra Nos. 4275 and 4276 were not subject-matter of the pre-emption suit, the compromise (Exh.P-2) was not compulsorily registrable under section 17 of the Registration Act. The learned trial Court fell in error by holding to the contrary.

31. The learned trial Court has also proceeded on the erroneous premise that in the present case the value of the land covered in the disputed passage has any relevance. It has confused the value of the land with the value of the easement created by Exh.P-2. Title to land and the right to pass over it are two separate and distinct legal interests which are recognized as such in our jurisprudence. As noted above, the parties did not intend to convey title in the land mentioned in the compromise. The same remains legally vested in them without change. Only mutually agreed easements have been created on the land comprised in the disputed passage. The learned Court has erred in holding that Exh.P-2 was compulsorily registerable because the land mentioned therein had a value exceeding one hundred rupees.

32. The learned trial Court next proceeded to hold that the terms recorded in Exh.P-2 were for the benefit of the parties thereto and were not available to Ilam Din as transferee from Muhammad Iqbal. This finding constitutes a misreading of the terms of Exh.P-2 and a non-reading of a material part thereof. From the portion of Exh.P-2, reproduced above, it is clear that he common passage was meant to be used jointly by the owners of the land, whether present or future. It is for this reason that the term ghair maalik was expressly used by the parties with the object of excluding a ghair maalik from use of the disputed passage. It is implicit in this clause of Exh.P-2 that a maalik would be entitled to use the passage. By virtue of the exchange deed, referred to above, Ilam Din petitioner is now vested with title in the land, which was previously owned by Muhammad Iqbal, including the area covered by the disputed passage. He, therefore, has become an owner and cannot be considered a ghair maalik. He, therefore, succeeds Muhammad Iqbal as a beneficiary of Exh.P-2.

33. Even otherwise, in the context of the circumstances mentioned above, it should be evident that a common passage was carved out as an appurtenance to the remaining landholdings of the parties and amounted to an easement attaching to the, said land. Direct proof of this can also be found in the testimony of Muhammad Azam, who is the son of Hassan Din and Zainab Bibi. In his cross-examination he admitted as under:--

34. There was, therefore, no warrant for holding that the rights created under the compromise (Exh.P-2), stood extinguished when Muhammad Iqbal transacted the exchange of land with Ilam Din. In addition to the above statement of Muhammad Azam, the uncontroverted testimony of the D.Ws. proves that the passage was meant for use by Ilam Din because Ilam Din had acquired the land along with the right of passage.

35. The learned Courts below have proceeded to reject the defence set up by the .petitioner/defendant on another ground also. They have held that no decree had been passed in the pre-emption suit and, therefore, the petitioner could not rely on the order of the learned trial Court dated 10-12-1987, whereby the pre-emption suit had been dismissed as withdrawn. This finding, I am afraid, is based on a misconception of the law. It is correct that no pre-emption decree was passed in the said suit because the pre-emptor therein, namely, Muhammad Iqbal chose not to press his right of pre-emption. However, it is incorrect that no decree was passed because the dismissal of the suit itself constitutes a decree. The order of the learned Court dated H 10-12-1987 recorded the terms of the decree by specifically mentioning that the compromise (Exh.P-2),which was placed on the record of the pre-emption suit as Mark-A was the cause of the reason for withdrawal of the suit and would be deemed a part of the order of the Court.

36. More importantly, however, I need to note that whether or not a decree had been drawn up in the pre-emption suit, has no relevance in the present case. The petitioner's defense rests on the compromise (Exh.P-2) and even if the same had not been mentioned in or made part of the order dated 10-12-1987, the petitioner nonetheless would be entitled to assert his rights in the disputed passage on the basis thereof. This is precisely what he has done. The Courts below were also, therefore, obliged to determine the respective rights of the parties on the basis of the compromise (Exh.P-2). Unfortunately, rather than proceeding on the basis of Exh.P-2, the learned Courts below have unduly engaged themselves in the fruitless discussion as to whether or not any decree had been passed in the pre-emption suit.

37. I now take up for consideration issues Nos. 9 and 10, reproduced above, in the suit tiled by Mst. Zainab Bibi. The case of Zainab Bibi is on much weaker footing than that of Hassan Din. She was a party in the pre-emption suit and was also one of the contracting parties in the compromise (Exh.P-2). She cannot, therefore, be allowed to resile from the contents of the said document. Only her son Muhammad Azam appeared as P.W. 1; He made self-serving statements. In his cross-examination, he conceded that the compromise (Exh.P-2) had never been challenged. He also conceded that he had signed the document on behalf of his mother Mst. Zainab Bibi as her attorney. The most important aspect of his testimony, however, is his admission reproduced above that the common passage was appurtenance to the agricultural land.

38. To sum up the above discussion, I find that Hassan Din and Zainab Bibi were entitled to a declaration that legal title in the respective Khasra numbers, owned by them and covered by the disputed passage, continued to vest in them. However, they were not entitled to a declaration that they were full and absolute owners of the said Khasra I numbers because their title was encumbered by and was subject to the contractual easement embodied in Exh.P-2. The disputed passage, without any shadow of doubt, was carved out of the respective landholding of the three owners whose land was included therein for their use and for the use of their successors-in-interest.

39. Finally, I would also like to record that the conduct of Hassan Din and Mst. Zainab Bibi is unconscionable and against equity as is evident from the circumstances considered above. This circumstance should have been taken note of while deciding issue No.9 in Hassan Din's suit and issue No.10 in Zainab Bibi's suit. The declaratory and injunctive reliefs sought by them, which are in the discretion of the Court, should have been denied to them for this reason also. The learned Courts below appear to have been unaware of this important aspect of their jurisdiction.

40. I am conscious that through this single judgment I have dealt with two separate suits. Copies of the impugned decrees and of the relevant record in both cases are, however, available on file. The two cases are inextricably linked and the subject-matter i.e. the disputed passage, is also common in both cases. I have therefore, found it most convenient to deal with the cases together.

41. In view of the foregoing discussion, I find the decree of the learned Courts below to be a result of patent illegality in the exercise of their jurisdiction. The same are, therefore, set aside and, as a consequence, the suits filed by Hassan Din and Mst. Zainab Bibi respectively are dismissed. It is held that the disputed passage exists and the petitioner Ilam Din cannot be restrained from using it.

42. The petitioner shall also be entitled to his costs throughout. M.B.A./I-129/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.