P L D 1973 Karachi 252 (PLP)

5. That the defendants now propose to cover the encroached portion with roof which they have not done so far which will complete the encroachment over the area of the plaintiff.

6. That the defendants propose to fix a permanent show case extending up to the encroached area belonging to the plaintiff which will an addition to the encroachment on the area of the plaintiff will also block his shop."

3. The allegations were denied in the Written Statement Led by the appellant No.

1. It was alleged that the projection stood on both the sides of the shop which included the respondent's shop, but as no proprietary or easement rights of the res pondent had been violated, the suit was liable to be dismissed with costs. The same stand was adopted by the appellant No. 2 in the Written Statement filed by him. On the basis of the plead ing between the parties, the trial Court struck the following Issues :‑ "(1) Have the defendants encroached upon the area of the plaintiff as mentioned in paras. 4 and 5 of the plaint? (2) Whether the construction and placing of show‑case by the defendants obstructed the view of the shop of the plaintiff and is the plaintiff entitled to get it removed? (3) What should the decree be?"

4. The respondent apart from himself, examined Asghar Ali wile the appellants apart from themselves, examined Abdul Majid, Kalu Khan and Sher Ali.

5. It was found by the learned Civil Judge that the construction had been raised on the Thalia, belonging to the Municipal Committee and the only encroachment was on the wall of the shop of the respondent, to the extent of 2 ft. which had been used for supporting a show‑case. As this act on the part of the appellants was a nuisance which obstructed the respondent from the free use of the property and interfered with the comfortable enjoyment thereof, he directed the appellants through mandatory injunction to remove the show‑case and other fixtures. They were further directed to remove alt the constructions on the com mon wall towards the shop of the respondent. The appellants were further restrained from encroaching upon the area of the respondent by building a common door or show‑case in front of the shop of the respondent. Appeals were taken to the District Court, Hyderabad by both the appellants which came to be dis missed on the ground that the appellants had no justification for placing the show‑case in front of the portion of the shop of the respondent, even on the Municipal land, as the placing of the show‑case beyond the centre line of the common wall between the two common shops, amounted to trespass.

5. Mr. Nasiruddin Shahmir, learned counsel for the appel lants, contended in the main that the Courts below had fallen into error by basing their judgments on pleas, which were never raised in the plaint. In support of his contention he cited the cases of Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi (P L D 1971 Kar. 505), Budho and others v. Ghulam Shah (P L D 1963 S C 553), The Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid‑ud‑Daula and others (P L D 1961 Lah. 993) and M/s. Karim Commercial Co. Ltd. v. The United Oriental Steamship Co. and 2 others (P L D 1970 Kar. 427). There can be no quarrel with the proposition advanced. However, it has to be seen that in Amin Yousuf Nizami v. Rashid Rayon Mills's case, the pleas raised in defence were totally inconsistent. It appears that during the exchange of the correspondence it was denied that the injuries received by the appellant were in the factory and if in the factory, the same were aggravated by the employee's negligence. However, at the trial they confined to the latter plea. These were found to be totally inconsistent pleas.

6. In Mls. Karim Commercial Co. Ltd v. The United Oriental Steamship Co., the question on fact had not been pleaded, in the plaint at all. It was, therefore, held that if the agreement with the defendant for the extension of time for the delivery of bales had been pleaded, it would have afforded a chance to the latter to produce evidence in rebuttal. Since the question of fact had not been specifically pleaded, the plea was not available at the stage of argument.

7. In the Chief Administrator of Auqaf v. Pir Rashid‑ud‑Daula and others, it was, however, observed that if the relief had not been claimed by the party but granted by the Court it will not be set aside, if there was material on the record, though no issue had been struck on the subject. It was observed in the Supreme Court case that; "It is not necessary for a plaintiff to state in the pleadings the legal effects which flow from the facts that he alleges. He is bound to state the facts and is confined to a statement of facts. He is presumed to rely upon all the facts which he states in the plaint, because according to the rule quoted above, (Order VI, rule 2, C. P. C.) he is to state the material facts on which he relies . . . . . By what process those reliefs flow from the facts alleged, it was not necessary to explain in a plaint which is to contain by law, only facts."

8. A bare perusal of the plaint filed by the respondent shows that he had given all the material facts on which he relied. The dings of tile Courts below cannot also be said to have gone Ali beyond the pleadings. The learned Civil Judge was of the view that the extension of the door by the appellants 2 feet on the other side of the common wall and the installation of the show case about 6/7 feet high adjoining the wall of the respondent's shop, prevented the latter from exercising the rights of full owner‑ship of his own property. The alterations would not permit the respondent to extend the door up to the common wall or instal any window or ventilator on the area of the wall in front of which the show‑case had been installed. He had thus been restricted from comfortably enjoying his own property which was tantamount to nuisarsce. The learned District Judge held that the appellants could not place the show‑case in front of the por tion of the shop of the respondent, even on the Municipal land, as it was his right to have the frontage of his shop unobstructed. The appellants, according to him, could not extend the show‑case beyond the centre line of the common partition wall, as it consti tuted trespass. As is to be found in Stroud's Judicial Dictionary, 3rd Edition, p. 1936 "Nuisance is incapable of exact definition but for the purpose of law of tart, it may be described as unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land." According to Winfiled on Tort, 7th Edition, p. 39; "Every invasion of property, be it ever so minute, is a trespass."

9. Both the Courts below have found that encroachmen was involved. As held in Special Manager, Court of Wards, 1, Balrampur Estate and another v. Shyam Lal (1621 C 836). "The plaintiff has stated his facts and it was for the Court to apply the law if the facts were found to be true." As held in Daudkhan Musekhan v. Chandulal Manhayalal Bhujan (A I R 1923 Bom. 370); " . . . . .If the wall is joint, then each party is entitled to act as owner of his own half and he cannot compel the owner of the other half to bear any greater burden than he chooses to place upon it so that‑one joint owner cannot encroach on the other half of the wall in defiance of the other owner's right". Call it nuisance, trespass, or encroachment ; the appellants cannot make the alterations in question under the law to the detriment of the respondent.

10. The learned Civil Judge had made a local inspection of the site himself. Beside, there was the site plan which had been produced by the learned counsel of the appellants through the respondent. Under the circumstances, the fact that the City Surveyor was not examined at the trial, makes hardly any difference. The findings of facts by the Courts below are con current. The same cannot be said to be perverse, unsupported or vitiated by any essentially wrong approach. Under the circumstances, no occasion has been made out to interfere with n the same.

11. In the result, I would affirm the judgment and decree and dismiss the appeal with costs. S. A. H. Appeal dismissed.