2012 PLP 168 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

Vide this single judgment, I intend to dispose of C.Rs. Nos.55, Nos.61 and Nos.62 of 2004, having the common subject-matter and the same question of law and facts. The petitioners filed a declaratory suit against respondent of each civil revision by claiming themselves to be the owners of Khasra No.2661, measuring 6 marla, and by further alleging that defendant/ respondent of each case has got no concern whatsoever with the same and they cannot use the suit property as a thoroughfare. Their said suits were dismissed by the trial Court vide judgment and decrees dated 30-5-2000 and appeals thereagainst of the present petitioners also met the same fate when Additional District Judge, Peshawar dismissed their appeals vide judgment and decrees dated 1-11-2003. Hence present revision petitions. Learned counsel for the petitioners submitted that findings of the two Courts below are not only against the law and record of the case but are also based on misreading and non-reading of the material evidence available on file. He next contended that the petitioners admittedly being the owners of the suit property have got every right to protect the same, as the respondents have got no concern whatsoever with the same. As against that, the learned counsel for the respective respondents submitted that they are the bona fide purchasers of their respective properties for construction of their houses from one of the co-owners of present petitioners, namely Aslam Khan son of Awan Khan, and they have made construction over their respective purchased properties since 1994. The suit of the petitioners, being meritless, is not maintainable, as there are many other co-owners in the suit property, who have not been made parties, who too have similar ownership rights in the property as claimed by the petitioners. The nature and status of the suit property is that of ( ) (water channel), which is now being used as a common drain by the inhabitants of the area as the adjoining lands have since long been converted into built-up properties. Merely being recorded owners in the water channel to the extent of their share which too is a meagre one would not entitled them for the relief claimed for. So, the findings of the two Courts below were accordingly based on proper appreciation of evidence and the present petitioners are liable to be dismissed as such. Learned counsel for the parties were heard and record of the case was perused. Perusal of the record would reveal that the present respondents purchased their properties for the purpose of construction of houses from one Aslam Khan son of Awal Khan in khasra No.2662, adjacent to the suit property comprising of khasra No.2661. Perusal of the record would further reveal that as per revenue record, copy of which is Exh.P.W.1/6, there are many other co-owners in the suit property. The vendor of the respondents is also one of the co-owner amongst many others, who has also his right of ownership in the disputed property which has now been transformed into a water channel being used by the entire locality. He and many other owners of khasra No.2661 have never objected to the use of their property as water channel. The dispute between the parties cropped-up since the purchase of respondents, who opted for filing a complaint under section 145, Cr.P.C. The report of the Local Commissioner (Exh.DW/23) during the said criminal proceedings would reveal that houses of the respondents were constructed by that time on their respective purchased properties and a small bridge was also built over the disputed khasra number i.e. 2661 to cross the water channel. It was specifically mentioned in that report that there is no hindrance of flow of water in the said drain and this very fact could not be denied by the learned counsel for the petitioners but he was consistent about rights of ownership of petitioners. Besides the above all, the entire khasra number i.e. 2661 measuring 6 marla has now been converted into a regular drain under the control and supervision of Town-III City District Government. The petitioners are not the only owners of the disputed khasra number and they also cannot change the nature and status of the suit property, which was earlier used as a water channel for irrigation purposes of the landed property and later on it transformed into a regular drain after construction of the residential houses in the locality. The available record on the file would suggest that the petitioners have got no cause of action and they failed to establish any of their rights being infringed by the respondents to enable them to approach the court of law for seeking declaration under section 42 of the Specific Relief Act. Mere entry of ownership in their name, that too, to the extent of a meagre share for a water channel would not entitle them to deny the right of flow of water to the inhabitants of the area as the status of the suit property recorded in the revenue recorded since settlement is and as per law, no one even an owner of the same can stop the flow of water. As a sequel to what has been discussed above, all these petitions, being merit less, are hereby dismissed with no order as to costs. S.A.K./318/P Petitions dismissed.