1999 PLP 312 (CLC)

This Revision Application has been filed by the legal heirs of the original applicant against the judgment given by VIth Additional District Judge, Karachi (East) on 12‑1‑1991 whereby he allowed Civil Appeal No.39 of 1989 which arose from the dismissal of. the Suit No.3257 of 1978 filed by the respondent in the Court of VIIth Civil Judge, Karachi (East). The plaintiff/respondent approached the Trial Court and stated that the applicant has raised construction of Jhugi/room and donkey cart outside the house of the plaintiff/respondent, and prayed for the following relief:‑‑ (a) By issuing mandatory injunction against the Defendants directing them to demolish and remove Jhuggi/Room and donkey cart outside of the plaintiff's house on the Western lane of Plot bearing No.GRE‑672‑VII AE‑663‑G/1‑A Garden East Clifton Road, New Town, Karachi. (b) By issuing permanent and perpetual injunction restraining the defendants, their agents and servants from raising any sort of construction over any of the lanes attached to the Plaintiffs Plot bearing No.GRE‑672‑VII‑AE‑663‑G/1‑A, and also from using the same as stand for Donkey Cart, or any other manner. (c) Cost of the suit The claim of the plaintiff/respondent was resisted by the applicant/defendant. Several issues were raised including the issue for valuation, issue of limitation and non‑maintainability under the Specific Relief Act. The trial Court framed the following issues:‑‑

(1) Whether the plaintiffs are the owners of the plot in question surrounded by four lanes on each side meant as passage for the use of the plaintiff? (2) Whether due to the defendants construction in the western lane of the plaintiff plot, the plaintiffs have been deprived from opening entrances, doors windows and ventilator on the Western lane? (3) Whether the defendant if using space of the plaintiff's house in such manners that it has become a nuisance for the plaintiff as alleged in paras.5 and 6 the plaint and it also affects the privacy of the plaintiff? (4) Whether the suit is maintainable in law what is the value of the subject matter of the suit? (5) Whether the suit is barred by limitation or under the Specific Relief Act? (6) What should the decree be? The plaintiff/respondent examined himself and produced the plans and closed his side. The applicant/defendant examined himself and two other witnesses, namely, Nazeer Ahmed and Nooruddin and closed their side. The trial Court decided issues Nos. l to 4 against the plaintiff/respondent, however, on the issue of limitation and maintainability of the suit i.e. issues Nos.5 and 6, decision was given in favour of the plaintiff/respondent and dismissed the suit filed by the respondent/plaintiff. In appeal the appellate Court as follows:‑‑ "The Advocate for the parties have agreed that following are the points for determination for this Court for the purpose of disposal of this appeal. (1) Whether there exists 20 feet lane on the Western side of the plot of the appellants. (2) Whether the respondents have constructed upon portion of the land in front of the plot of the appellants and diminishes its value and utility." The appellate Court visited the site and stated as follows:‑‑ In the impugned judgment:‑‑ "Moreover on my personal inspection of the site I myself found that there is a lane on the western side of the plot of the appellants which is being used as passage and now a metal road has been constructed over there. I also found that the inhabitants of the houses by the side of the road adjoining with the plot of the appellants have also entered their houses by raising further construction and has reduced the width of the lane. The construction of these structures is such which clearly show that they were constructed separately and after the construction of the original structure of their houses. I also found that in front of the plot of the appellants there is a semi‑constructed structure of the hutment of the respondents. This construction is adjoining with the front wall of plot of the appellants up to the side of the metal road, in the Western side of the lane." After discussing the evidence the first appellate Court reversed the finding of the trial court and allowed the appeal thereby decreed the suit filed by the respondent/plaintiff. That appellate judgment is now questioned in the revisional jurisdiction of this Court. This revision application was admitted. It was being fixed on several dates. Today, learned counsel for the applicant requested for adjournment but since the suit was filed in 1978 and since 19 years the cause is pending, therefore, I declined adjournment. Learned counsel for the applicant argued the case and his contention are as follows:‑‑ (i) The suit is time‑barred, the valuation is not proper, the suit was hit by the principles of Specific Relief Act and, therefore, not maintainable. According to him, the First Appellate Court has not discussed those issues. (ii) Learned counsel appearing for the respondent stated that the issues pertaining to the maintainability of the suit were decided in favour of the plaintiff/respondent. The applicant has not filed any cross‑objections before the lower appellate forum, therefore, there was no occasion for the appellate Court to examine those such issues. He has further stated that since the applicant acquired in the findings regarding maintainability of the suit before the first appellate Court, now that the case has been decided against the applicant by the lower appellate forum, they are estopped from raising such issues before this Court. He has relied upon the judgment of Honourable Supreme Court in the case of Allah Yar Khan v. Mst. Sardar Bibi 1986 SCMR 1957 and Liaquat Khan etc. v. Ghulam Muhammad PLD 1987 Pesh. 53 a judgment from Peshawar High Court in which it has been held that the findings of the A Trial Court, if not challenged before the lower appellate forum, could not be agitated in upper appellate/revisional forum. I would, therefore, hold that since issues Nos. 5 and 6 were decided against the applicant and he did not challenge the findings of the trial court before the lower appellate forum, therefore, cannot agitate those issues before this Court. I find from the judgment that the first appellate Court has held that the parties on the actual issues agree on the two points which has been quoted in the earlier part of this judgment. The lower appellate Court also visited the site and in the earlier part of this judgment the findings have been recorded. Learned counsel for the applicant was unable to point out from the record that the findings of the first appellate Court are perverse in law, or not sustainable on the basis of evidence so recorded. I would, therefore, hold that the findings of the, appellate Court are correct. Even otherwise, in case of the conflict in the judgment between the Trial Court and the appellate Court, the decision of the first appellate Court is to be preferred in the revisional jurisdiction which is being exercised by this Court. This has been so held by this Court in the case of Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar.

202. Lastly it has been contended that the applicant has constructed room since 1956 and is in possession of the premises ever since then, therefore, suit so filed in 1978 is time‑barred. I have already held that the issue of limitation has been decided against the applicant by the Trial Court. Such issue was not agitated before the lower appellate forum, therefore, I am not inclined to exercise the jurisdiction to examine such issue again. Issue of limitation is again a mixed question of law and facts. Since the decision has been given against the applicant by the appellate trial Court, and in view of the above cited judgments, I decline to reopen such issue in the revisional jurisdiction. The upshot of the above discussion is that the Revision Application has no merits. It is dismissed with costs. Q.M.H./M.A.K./I‑33/K Revision dismissed