2007 PLP 2363 (YLR)

MAULVI ANWARUL HAQ, J.--On 29-3-2006, respondent No. I filed a suit against the petitioner and respondents Nos.2 and

3. In the plaint, it was stated that the house described in para.] of the plaint is owned by respondent No.1 and his brother. The land underneath the house, measuring 30 `Marlas, was purchased by them from Ashraf Hussain vide Mutation No.1256 attested on 15-6-2004. It was then explained that Khasra No.438 is measuring 9 Marlas while Khasra No.440 is measuring 1 Kanal and 6 Marlas. Out of Khasra No.440, 5 Marlas land had already been sold while remaining 1 Kanal and I Marla was purchased by respondent No.1 Khasra No.438 is located at the back of Khasra No.440. A private passage of some area was left in Khasra No.439, which is measuring 5 Marlas and no person other than the vendor of respondent No.l had any connection with the said 5 Marlas of land. Consequently, respondent No.l and his brother are exclusive owners of said five Marlas. Petitioner No.l owns a house towards north of the said Khasra No.439, which is circled by road and a passage in the back leads towards the village. Towards the road, petitioner No.l constructed five shops. Initially he himself left a passage between the shops to approach the back portion, but then declared that he would use the passage of Khasra No.439, whereupon construction has' already been raised by respondent No.1. Petitioner No.1 filed an application reporting encroachment and removal thereof from Khasra No.439. A notice was issued on 15-3-2006 directing respondent No.l to demolish the construction. This notice was stated to be void and without jurisdiction as according to respondent No.l he was exclusive owner of 5 Marlas in Khasra No.439. A declaration was accordingly sought. Along with the suit an application was filed for grant of temporary injunction restraining the official respondents from implementing the said notice. The plea taken by the official defendants as also petitioner No.l was that Khasra No.439 is a thoroughfare and recorded as such in the record. Apart from this respondent No. I has proceeded to raise construction without getting a plan approved by the competent authority. The said application was dismissed by the learned trial Court on 11-10-2006. First appeal filed by the respondents was allowed by the learned A.D.J., Sialkot on 20-12-2006 and temporary injunction was granted.

2. The learned counsel for petitioners contends that it is established fact on record that Khasra No.439 measuring 5 Marlas is a thoroughfare owned by "Bashindgan-i-Deh" and it is not even the allegation of respondent that he had purchased the same.

3. The respondent was duly served, but did not appear. He was, therefore, proceeded against ex parte on 5-4-2007.

4. I have examined the copies of records. it is in the plaint itself that respondent No.1 and his brother have purchased 30 Marlas of land described in para.2 of the plaint i.e. 9 Marlas in Khasra No.438 and 1 Kanal and I Marla in Khasra No.440. The land being claimed by respondent No.l to he exclusively belonging to hial is the land of Khasra No.439 and is measuring 5 Marlas. He had not at all alleged that he or his brother acquired the same in any lawful. manner. The stated case of the petitioner/defendants is that the said land is a public passage owned by "Bashindgan-i-Deh". A copy of Register Hagclaran Zamin for the years 2002-03 is available at page 49 of this file. Khasra No.439 measuring 5 Marlas is / shown as "Ghair Mumkan Raasta" in possession of Union Council and owned by "Bashindgan-i-Deh". Prima facie, neither respondent No.l nor his vendor has any right, title or' interest in the said land, which is a passage left by all the owners of village and in possession of Union Council. The learned A.D.J. has proceeded to grant relief by observing that the said passage only leads to Khasra No.438. in the first instance the observation is absolutely contrary to "Aks Shajra" available at page

34. Secondly, admittedly, Khasra No.440 has also been purchased by the respondent while Khasra No.439 also serves Khasra No.437/ I . Both said Khasras are located on the main road. Even if it is assumed that this passage leads to Khasra No.438 it is admitted position on record that the respondent has raised construction on the said passage. This being so, there was no justification, whatsoever, for the learned A.D.J. to have granted interim relief. The C.R. is accordingly allowed and the impugned order dated 20-12-2006 passed by learned A.D.J., Sialkot is set aside. No order as to costs. S.A.K./M-342/L Revision accepted.