1993 PLP 1216 (CLC)

(1) Whether the suit is not maintainable in its present form in view of para. No.3 of the preliminary objection? OPD. (2) Whether the suit is barred by the principle of res judicata? OPD. (3) Whether the plaintiff has no locus standi and cause of action to bring this suit? OPD. (4) Whether the plaintiff is owner in possession of the suit property? OPP. (5) If issue No.4 is proved, whether the defendants have made encroachment as alleged in para. in the plaint? OPP. (6) Whether the defendants have encroached upon the street of M.C. Sialkot ii so, with what effect? OPP. (7) Whether the defendants Nos.2 and 3 are entitled to special costs under section 35‑A, C.P.C.? OPD. (8) Relief.

3. The learned Civil Judge answered issues Nos.l to 3 against the plaintiffs. On issue No.4 his finding was that the plaintiffs were owners in possession of Khasra No.2206 and under issues Nos.5 and 6 his conclusion was that the respondents‑plaintiffs were. not entitled to any relief. In appeal the learned District Judge reversed the findings. According to him after the dismissal of the previous suit the Municipal Committee had demolished the encroachment made by the petitioners‑defendants and now when again the encroachment was tried to be made, the respondents‑plaintiffs had a fresh cause of action, the suit was competent, they had the locus standi to file the suit and on issues on merits (Issues Nos.5 and 6) there was more than sufficient evidence that the defendants‑respondents had made encroachment.

4. Learned counsel for the parties have been heard and record gone through with their help. Learned counsel for the petitioners has unsuccessfully tried to beat 'about the bush but without any success. No substantial contention or question was raised by him for reconsideration by the Court in revisional jurisdiction. It is clear from the judgment of the learned Additional District Judge that not only notice was issued to the petitioners by the Municipal Committee to remove their encroachment, rather order for the demolition of the encroachment was also passed by the Administrator. There is oral evidence on behalf of the petitioners‑defendants that no such encroachment was removed but neither the notice nor the order of the Administrator have been filed on the record of this revision petition though exhibited in the learned lower Court. Hence the conclusion arrived at by the learned Additional District Judge cannot be interfered with in revision. Even the other exhibited documents were not filed with the revision petition by the petitioners as required under section 115, C.P.C. To make the understanding of the case easier for the Court, learned counsel tendered at the bar copy of the site‑plan (Exh.P.2). Appreciating the evidence, judgment and the pleadings of the parties with its help it is clear that the plot of the petitioners‑defendants was on the North and that of the plaintiffs‑respondents on the South. In between is running a thirty feet wide Municipal street. It means that they have so conducted themselves that by jumping over the street they have started raising construction not only in ten feet wide passage from the street, but on a portion of the respondents' plot three feet on the East and 13 feet on the West. They have not filed any site‑plan of their house indicating that the street was made to run through their Khasra leaving the disputed strip on the South of the street.

5. For all the above discussion the revision petition is dismissed being without any force with costs. H.B.T./M‑3102/L Revision dismissed.