1972 PLP 119 (SCMR)

SAJJAD AHMAD, J.‑This appeal, by special leave, arises out of the plaintiff‑appellant's suit for a permanent injunction to restrain the respondent from putting up any construction in front of the appellant's property, situated on City Survey Nos. 1452 and 1453, Ward `A', Larkana town. The suit was dismissed by the trial Court. On an appeal, the District Judge, Larkana, granted partial relief to the appellant, and ordered that the respondent (Municipal Committee of Larkana) shall demolish one shop, which lies nearest on the southern side to the door on the western side of the appellant's property. Thereafter, the respon dent filed a second appeal in the former High Court of West Pakistan,. Karachi Bench, which was allowed by a learned Single Judge, whereby the order of the lower appellate Court was set aside, and that of the trial Court was restored, resulting in the total dismissal of the plaintiff's suit. The plaintiff appellant in his suit had claimed that the plot on which the construction was being made by the Municipal Committee, formed part of a road way and blocked the plaintiff's access to his property from that road. In the Courts below, the plaintiff‑appellant pursued his ease on the basis that the' plot in question lying to the west of his property comprised in Survey Nos. 1452 and 1453, was a public street, which the Municipality, under its statutory obligations, was bound to maintain as such without any interference with its purpose or utility. The learned Single Judge in the High Court came to the conclusion that the plot on which the Municipality had construct ed the shops was its own property, and that the plaintiff-appellant had failed to establish arty easement for a right of passage on that plot. The learned counsel for the appellant has argued before us that the plot in question was part of a public bridge road, over which his client had a common law right of passage, which he was entitled to exercise as a private citizen without necessarily establishing a statutory right of easement as such. We consider that if it was the plaintiff's case that the plot in question was a public road to be maintained as such by the Municipality, he should have impleaded the Provincial Govern ment also as a party, apart from the Municipality, which was claiming it to be its own property under purchase from the Provincial Government. It is also a question, whether such a suit would not attract section 91 of the Code of Civil Procedure. The learned counsel for the appellant has conceded that his suit, as instituted, suffered from' formal defects without a clear comprehension as to what was the character of the disputed plot or the portion thereof on which constructions had been put up by the Municipal Committee. 1t is not at all clear whether the portion in question is a public road or a kasha part of that road, and whether it belongs to the Government or to the Municipal Committee which it has converted into the public street. . Nor does it seem clear as to what are the appellant's rights to claim access to his own property from this plot. The learned counsel for the appellant agrees that since con structions have already been completed on the plot in question by the Municipal Committee, his suit for an injunction to restrain the Municipal Committee from putting up the constructions is infructous. In view of all these circumstances, he has prayed that the appellant may be permitted to withdraw his suit, with permission to bring a fresh one for establishment of his rights, as claimed by him. We permit the withdrawal of the suit, as prayed for by the plaintiff‑appellant, with permission to bring a fresh one, if so advised. This appeal is thus disposed of with no order as to costs. Appeal dismissed.