P L D 1975 Lahore 472 (PLP)

Qazi Muhammad Ashraf for Appellant. Syed Abid Hussain for Respondent. Date of hearing : 6th May 1974. This second appeal is directed against the judgment and decree of the learned Additional District Judge, Lahore at Sheikhupura dated 1st June 1960 who affirmed the judgment and decree of the learned Administrative Civil Judge dated 14th March 1960 whereby the suit of the plaintiff was dismissed with costs.

2. The plaintiff has come in appeal. In the town of Chuharkana a dispute arose between the plaintiff and the Municipal Committee as to whether the latter was entitled to lease out a portion of the street indefinitely and thereby render the ventilation of the plaintiffs house ineffective by the closure of windows on account of lease of a thara in front of his house where some construction has been raised. The trial Court framed the following issues :- (1) Are the tharas in dispute situate in public street ? (2) Had the tharas in dispute been in existence for a period of 20 years prior to the institution of the suit and what is its effect ? (3) Did the plaintiff have any windows opening towards these tharas 7 If so, what is its effect upon the present case, (4) Is the plaintiff entitled to open the doors, ventilators and windows of his shop towards the tharas ? (5) Relief.

3. It is argued by learned counsel for the appellant that the Committee is not competent to lease out permanently a portion of the street and the closure of the windows of the plaintiff on account of action of the Municipal Committee is not proper. The question which requires consideration in this appeal is as to what is a public street and can the Municipal Committee lease it out. In order to answer this question reference is made to section 3(13) and section 169 of the Punjab Municipal Act, 1911. In Municipal Board of Agra and another v. Sudarshun Das Shastri 26 1 C 206 a Division Bench of the Allahabad High Court held that metalled or unmetalled parts of public street cannot be separated for the purposes of the interpretation of the definition of public street. Both the parts are to be treated as public street. In Municipal Committee Hafrzabad v. Bhola Nath A I R 1939 Lah. 44 a learned Single Judge of this Court distinguished Municipal Committee, Delhi v. Mohammad Ibrahim A I R 1935 Lah. 196 a Division Bench judgment of this Court, in the interpretation of powers of leasing out or of closing of public street under section 169.1 With due respect I am persuaded to follow the Division Bench judgment of this Court reported as Municipal Committee v. Muhammad Ibrahim in which it was held that on a public road the Municipal Committee could not interfere with the rights of owners of houses abutting on road with regard to road and diminish comforts of occupants of houses. The owners have actionable claim against the Municipal Committee. In this case the learned trial Judge has excluded from consideration the evidence of Irshad Ahmad (P. W. 6) Draftsman of Sheikhupura who has stated in cross-examination that the two windows have been closed and the closure is visible at the spot. The learned Additional District Judge on this issue has entirely excluded from consideration the evidence of Irshad Ahmad. The findings of fact shall not be sacrosanct when the Courts below have either ignored evidence or relied on inadmissible evidence or have misread the evidence. The findings of fact in the instant case before me suffer from both these defects, one by the -' trial Court and the other by the lower appellate Court. I would, therefore, remand this case to the District Judge, Sheikhupura, to rehear the appeal and decide issues Nos. 3 and 4 afresh. He may also take into consideration they application which has been made in this Court under Order XLI, rule 27, C. P. C. if he finds it necessary to come to a just decision.

4. Before parting with this case I must make it clear that with the growth of population in the country and restrictions placed on the powers of the Municipal Committee for leasing out any portion of a public street provisions of section 169(g) have to be kept in view wherein it is mentioned that the Committee subject to the provisions of any rule prescribing the conditions on which property vesting in the Committee may transfer, lease, sell or otherwise dispose of any property acquired by the Committee under clause (f ), or any land vesting in and used by the Committee for a public street and no longer required therefore, and in so doing may impose conditions regulating the removal and construction of buildings upon it and the other uses to which such land may be put. It cannot, therefore, be left to the sweet wish of the Municipal Committee to lease out any portion of the public street without framing any rules and without keeping in view the factum that the portion which it is leasing out or is otherwise disposing of by way of' sale, is no more required for the purposes of public street or is likely to disturb any easement rights of light etc. of any person whose house abuts on that street.

5. For the foregoing reasons the appeal is accepted and the case is remanded to the District Judge, Sheikhupura. In view of the complicated question of law involved the parties are left to bear their own costs. s. A. H. Appeal accepted.