2011 SCMR 1064 (PLP)

SARDAR MUHAMMAD ASLAM, J.

Leave is sought from the Judgment dated 7-5-2008, passed by a learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, dismissing Civil Revision.

2. Facts necessary for disposal of this petition are that respondent No. 1, filed a "suit for permanent injunction seeking restraint order from use of stair case and dheori of House No.Y-278 against Subedar Khuda Bakhsh, predecessor of the present petitioners and respondents Nos.2 to

5. It was decreed on 4-2-1966. Khuda Bakhsh aforesaid filed an appeal which came up for hearing before a learned Additional District Judge and was allowed on 23-5-1968. Respondent No.1, filed RSA No. 512 of 1968, in Lahore High Court, Lahore, which was accepted on 5-5-1982, and, decree passed by trial Court dated 4-2-1966 was restored.

3. Decree of the trial Court in suit filed by respondent No.1 was to the following effect:-- "It is ordered that I hereby, grant a decree in favour of plaintiff against the defendant for permanent injunction restraining the defendant from the use of stairs and dheori of the house No.Y-278, Rawalpindi, with costs, and as a consequential relief restraining the defendant from opening any door in the plaintiff's dheori".

4. The decree was executed through the process of court on 14-7-1982. Respondent No.1 filed an application against the petitioners under Order XXI, Rule 32, C.P.C. alleging gross violation of the judgment and decree dated 4-2-1966. Petitioner's submitted reply, pleading that decree relates to the user of stair case and does not restrain the petitioners from use of the kitchen underneath the stair case. Trial Court framed the issues, parties produced their respective evidence. Learned trial Court allowed the application vide its order dated 25-1-1994, directing the petitioners to remove the structure and other objects raised below the stair case and respondent No.1-decree holder was required to fill the gap in between the wall. Petitioner assailed this order, in appeal, before the First Appellate Court, which ended in dismissal on. 15-4-2004. Appellate judgment was challenged in C.R.No.379 of 2004, which too, was dismissed on 7-5-2008, giving rise to this petition.

5. In support of this petition, learned counsel argued that revisional judgment suffers from misreading/non-reading of evidence; that no executable decree was in the field and that petition under Order. XXI, Rule 32, C.P.C. was not maintainable.

6. We have heard learned counsel at length and perused the record. Respondent No.1 was transferred House No.Y-278, along with stair case and dheori, while petitioner got House No.Y-279 in litigation on Settlement side, attaining finality. Parties then commenced their litigation in Civil Court on 3-6-1964. After protracted litigation, decree in favour of respondent No.1 by trial Court was affirmed in revision by the High Court. Execution was filed by respondent No.1. A local commission was appointed who visited the site and submitted his report A with site-plan on 13-7-1982. Opening of doors in the lower portion of the house of petitioners and the upper storey shown as "Mark-(sic.)" and "Mark" respectively, were closed down. Execution petition was, thus, disposed of in terms of commission report. Petitioner, owner of adjacent house bearing No.Y-279 was thus left with no access from stair case or dheori to his house. Petitioners approached first storey of their house, through wooden ladder, from the courtyard. Closure of petitioners doors opening in stair case and dheori, was to bring an end to the hostility between the two neighbours for all time to come so that they may live in peace and tranquility. Visual site-plan annexed with the report of the local commission goes a long way to show dispute ended between the parties on submission of report and consigning of the execution filed in accordance with commission's report. Though the original decree does not find any mention of kitchen under the stair case and the learned counsel for the petitioners may be correct in raising a plea of maintainability of an application under Order XXI, Rule 32, C.P.C., yet we cannot skip notice of the fact that no kitchen was existing at the time of inspection of the local commission. A long standing litigation between the parties came to an end and do not admit of its re-opening on account of technicalities. Suffice it to say, that the petitioners having no access to the stair case and dheori, as is clearly evidenced from the commission's report, are not entitled to run a kitchen underneath the stair case. Concurrent findings of fact have been recorded by all the Courts below in adjudication of petition under Order XXI, Rule 32, C.P.C., against the petitioners, who have failed to point out any misreading or non-reading of evidence or illegality in the impugned judgment, calling for interference.

7. For what has been discussed above, this petition is without force and is dismissed. Leave is accordingly refused. S.A.K./A-13/SC Leave refused.