2023 PLP 1839 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Through instant petition filed under section 115 of the Code of Civil Procedure, 1908 (C.P.C), the petitioners have questioned the validity and correctness of the judgment and decree of the learned District Judge/ Zila Qazi, Dir Lower at Timergara dated 07.12.2016, whereby their appeal against the judgment and decree of the learned Civil Judge/Illaqa Qazi-V, Dir Lower at Timergara dated 22.04.2015 dismissing their suit, was dismissed.

2. Arguments heard and record perused.

3. It appears from the record that the petitioners through their suit for mandatory injunction contended that the road from Government High School Malakand Payen Teshil Balambat to Gadla Bala Kohi, being a constructed road, is a public thoroughfare/property, which is being used by them and other inhabitants as a passage, as such, the respondents/defendants cannot create any hurdle for them in their right of use of the road. Perpetual injunction was also sought in terms of restraining the defendants/ respondents from blocking the road as described in the headnote of the plaint. In Para No.7 of the plaint, it was averred that the constructed road from Government High School Malakand Payen to the Abadi of Gadla Kohi is a public thoroughfare and that they have got every right to use it, hence, the respondents/ defendants can neither deny the entitlement of the petitioners/ plaintiffs from use of the road nor can create any blocked, impediment or hurdle affecting their right of use of the road. Suit was resisted by the respondents/ defendants. After recording of evidence and hearing the parties, the learned trial Court vide its judgment and decree dated 22.04.2015 dismissed the suit, where-against the appeal filed by the petitioners/ plaintiffs also failed vide judgment and decree of the learned Additional District Judge/Izafi Zila Qazi, Dir Lower at Timergra dated 07.12.2016.

4. Scrutiny of record reveals that during pending adjudication of the suit, the learned trial Court appointed a local commission, who proceeded to the spot and prepared a sketch showing the disputed road. When learned counsel for the respondents/ defendants was confronted as to whether the defendants/respondents could deny from the right of the petitioners from the use of constructed road or a thoroughfare leading to their houses or could they restrain the petitioners through any impediment or barrier, who submitted at the bar that since the road is crossing from middle of the houses of the respondents/ defendants, as such, it affects their privacy and that they have compensated the owners at the time when the road was being constructed, hence, the petitioners/ plaintiffs have rightly been restrained by them from use of the road because they have an alternate road leading to their houses just from Gul Dheri towards west, however, this contention of learned counsel for the respondents/ defendants could not provide any justification to the respondents/ defendants for restraining the petitioners/ plaintiffs or anyone else from use of the road/thoroughfare. Once, it is admitted by the respondents/ defendants that it is a public path/road then the petitioners/ plaintiffs could not be restrained from the use of it. Similarly, no one else could be restrained by the respondents/ defendants from the use of this road irrespective of the fact that it is passing through across to their houses or from the middle of the abadi rather it is for the respondents/ defendants to make an arrangement for their privacy but it does not mean to restrain anyone including the petitioners/ plaintiffs from use of the road. Had it been the private path leading to the houses of the respondents/ defendants then their course of action could be held justified but this is the public path/thoroughfare, over which, anyone including the petitioners/ plaintiffs has got equal right of passage as that of the respondents/ defendants. In a similar controversy, this Court in the case of "Raees Khan and others v. Samar Ali Shah and others" (1997 CLC 349, Peshawar), has held that: "There is a difference between thoroughfare and a private path. A thoroughfare, which happens to be shamilat, is used and enjoyed by every person of the village irrespective of the fact that whether he is owner or not, and a person if recorded its owner cannot convert it to his own use as laid in PLD 1996 Peshawar 19, but if there is a private path, then an owner thereof shall certainly have a right of use and conversion according to his own requirements and choice. Such a path shall be as good property and ownership as any other property can be." Reliance may also be placed on the case of "Saghir Ahmad v. The State of Uttar Pardesh and others" reported as AIR 1954 SC 728, 1955 SCR 707 (Indian Jurisdiction).

5. The fact of constructed road starting from Degree College having an exit from the road Balambat to Maidan towards west passing through from Government High School Malakand Payen, mosque, Gadala and houses of the respondents/ defendants over a culvert towards south and connecting it from the road leading towards west from Gul Dheri towards the Abadi of Kohay (construction of the plaintiffs) is admitted on record by the respondents/ defendants. In cross examination of PW-2, it was placed on record by the respondents/ defendants that the disputed path is crossing through from their village and Rahmat Gul, Muhammad Gul and Said Bahadar have got their houses but were not impleaded as plaintiffs. It was further placed on record during the cross examination of this witness by the respondents/ defendants that:

6. Adverting to the evidence of the respondents/defendants. Muhammad Naeem Khan entered into the witness-box as DW-1, who in his cross examination deposed that: He further admitted that: It has been brought on record during his cross examination that: DW-2, in his cross examination, admitted that from Government High School Malakand Payen towards Gadala Payen there is one-kilometre constructed road. When learned counsel for the respondents/ defendants was confronted regarding the admission of the respondents/ defendants, who submitted at the bar that the petitioners/ plaintiffs were required to prove their case rather they could not take any advantage from the weaknesses of the defendants/ respondents. Be that as it may, in the instant matter, it is an admitted fact that the dispute is regarding the use of the road constructed by the Government, which is passing through from houses of the respondents/ defendants, who as per their own interpretation, whims and desire, have developed an opinion that since the road is passing through from their village/houses, therefore, it is affecting their privacy but neither it is a justification nor could authorize them to restrain anyone from use of the road.

7. Moreover, when the fact that there exists a metalled road constructed by the government then it is public property as held by the apex Court in C.M.A. No.209-K of 2014 in C.P. No.152-K of 2014 that: "The term 'public property' has wide meaning and, therefore, we would like to clarify it in the order to avoid any ambiguity. The term 'public property' shall include the following places: (i) Roads. (ii) Sidewalks. (iii) Islands in the Centre of a road/ service land -including but not limited to 'Sponsored Islands' whereby the entire Island is maintained by a private person who displays his name and products on the traffic signs. (iv) Overhead Bridges and Underpasses. (v) Overhead pedestrian walkways/ bridges. (vi) Roundabouts - including but not limited to 'Sponsored Roundabouts' whereby the entire Roundabout is maintained by a private person/or any organization who displays his or their name and products on the traffic signs." In such circumstances no one can be allowed to create any hindrance in public property, street, road, thoroughfare or footpath or to obstruct anyone from the use of it as passage. Any such act of the respondents/defendants would amount to be an encroachment in the public property and shall be dealt with in accordance with law. In similar circumstances, in the case of "M/s. Eastern Carpets (Pak) Limited v. Province of The Punjab and another" (1994 MLD 558) it was held that: "The report of the Local Commission, and Mussavi coupled with other documentary evidence, namely Annexure-A, Site Plan, Annexure-C Report of the Revenue Authorities and Annexure-D, letter from Chief Corporation Officer, LMC would show beyond doubt that the disputed passage was a thoroughfare. There is no evidence having been produced by the respondents to prove that the passage is not a thoroughfare. This being so, I do not feel any hesitation to declare the encroachment made by the respondents Nos.1 and 2 over the property in dispute without lawful authority and of no legal effect. The passage is accordingly declared to be a public thoroughfare. The encroachment shall have to be removed by the respondents. The petition succeeds and is allowed."

8. Insofar as the contention of the respondents/defendants that form of the suit was not correct as the petitioners/ plaintiffs have prayed for mandatory and perpetual injunction but have not sought any declaration in their favour is concerned, suffice it to say that Para No.7 of the plaint is pertaining to the rights of use of the road as alleged by the petitioners/ plaintiffs in terms of section 42 of the Specific Relief Act, 1877 and denial thereof by the respondents/ defendants is ineffective upon their rights, therefore, this objection of the respondents/ defendants, in any way, could not provide any justification for dismissal of the suit rather it is the duty of the Court to consider the prayer in juxtaposition with the contents of the plaint and to grant the relief in terms of their prayer clause irrespective of this fact that it was specifically mentioned therein or not. The administration of justice requires that justice should not only be done but it should be seen to have been done. In the instant case, in view of the admitted position, the sketch prepared by the local commission, admissions of the respondents/ defendants, Para No.7 of the plaint regarding the road, being a thoroughfare, has established that the petitioners/ plaintiffs have got every right to use the public path/ road leading towards their houses across the houses of the respondents/ defendants.

9. In view of the above, both the learned Courts below have not properly appreciated the evidence in its true perspective rather the findings of the learned Courts below are based on misreading and non-reading of the record, as such, the concurrent findings of the learned Courts below are not only against the law but also against the facts on the record, which could not sustain in view of the principle enunciated by the Hon'ble Supreme Court of Pakistan in cases of "Nazim ud Din and others v. Sh. Zia ul Qamar and others" (2016 SCMR 24) and "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012 SCMR 1373) that erroneous concurrent findings based on misreading and non-reading of evidence are no longer sacrosanct from interference while invoking revisional jurisdiction under section 115, C.P.C. Thus, for the reasons discussed above, the instant petition stands allowed, consequently, the judgments and decrees of both the Courts below are set-aside and the suit filed by the petitioners/ plaintiffs is hereby decreed in their favour in the following terms: i. The constructed road commencing from Degree College Malakand Road passing through from Government High School Malakand Payen, Gadala mosque across the houses of the respondents/ defendants over khwarl culvert leading to the road from east to west and intersects therewith at point No. B of the sketch prepared by the local commission, over which, the plaintiffs/ petitioners have a right to use it as a passage being a public thoroughfare; ii. The respondents/ defendants could not deny from the legal and vested rights of the petitioners/ plaintiffs in respect of the road; and iii. The respondents/ defendants are permanently restrained not to create any hindrance, impediment or barrier in the road as described above. No order as to cost. SA/148/P Petition allowed.