2004 PLP 1569 (YLR)

Respondent No.2: ex parte. Date of hearing: 22nd April, 2003. Through the filing of the present revision petition, the petitioner/defendant No.2 has called in question judgment and decree dated 22‑9‑2001, whereby the learned Additional District Judge dismissed petitioner's appeal and maintained the A judgment and decree dated 24‑7‑2000, passed by the learned Civil Judge, through which he decreed the suit for permanent and mandatory injunction filed by Sardar Muhammad.

2. Briefly stated the facts leading to the filing of the present petition are that respondent No. l filed a suit for permanent and mandatory; injunction against the petitioner/defendant No.2, alleging therein, that he is the owner in possession of plot measuring 3 Marlas and 144 Sq. Ft., vide sale‑deed dated 30‑8‑1986, which includes four feet wide street and the same is the only approach to his house. It was further claimed that the petitioner has no concern with the said street still he had forcibly opened the door of his house in the street. The suit was contested by the petitioner by way of filing the written statement, thereby controverting the allegations made in the plaint. It was pleaded that the said street is a "public street" being used by the petitioner and others (or the last 40 years. The learned Civil Judge framed as many as four issues, recorded the evidence of the parties and proceeded to decree the suit, favouring the respondent No.1, vide judgment and decree dated 24‑`7‑2000. Feeling aggrieved, the petitioner filed an appeal but without any success as his appeal was also dismissed by the learned Additional District Judge, vide judgment and decree dated 22‑9‑2001, hence the present petition.

3. Learned counsel for the petitioner has contended that although basic question involved in the suit was as to whether the plaintiff was exclusive owner of the street, yet no issue on this material controversy was framed. He has further submitted that the said respondent/plaintiff did not lead any evidence with regard to this ownership, but he was declared as exclusive owner of the street in question. According to the learned counsel both the judgments are not sustainable. Conversely, learned counsel for the respondent, while referring to the sale‑deed, issued in favour of Sardar Ahmed by L.D.A., and relying on survey form, has submitted that the plaintiff is the owner of the street, therefore, the suit has rightly been decreed in his favour.

4. Upon the examination of the impugned judgment, I find that the same is contradictory inasmuch as on the one hand it has been acknowledged that "lot of irregularities have been taken place in the exhibits and the documents" and on the other hand, it has been held that "the said street is the ownership of respondent No. l on the basis of documents of original title". It is not discredible from the judgment that on what material the learned Additional District Judge has held that the said street is the ownership, of the respondent No. 1, specially when neither any issue on this material controversy was framed nor parties led the evidence on the said dispute. I do not find any evidence on record, on the of which it can be held that the respondent is the exclusive owner of the street in question. The learned Appellate Court has neither discussed nor adverted to any material or evidence on record before coming to the conclusion that the plaintiff is the owner of the street in question. I have examined the sale‑deed, issued in favour of the plaintiff, but the same also does not indicate that the street was transferred/sold to the plaintiff. Although there is photo copy of survey register on record but I am of the view that the same is not part of the record, as the same has not been exhibited. After the perusal of the impugned judgment, as noted above, I am of the view that the same, comprehensively, suffers from misreading and non‑reading of the record, thus, the same not sustainable in law.

5. Now coming to the judgment of the learned trial Court, to my mind the same is equally unsustainable in law. From the pleadings of the parties, I find that although the real controversy between the parties was as to whether the street in question is the ownership of 'respondent No. l or it is a public street, yet surprisingly enough, no such issue was framed and instead thereof the learned trial Court framed Issue No.2 viz. "Whether the disputed street is a public street? If so its effect? OPD No.2" and onus of which was placed an the present petitioner. Admittedly, the plaintiff filed the suit, seeking a decree for permanent and mandatory injunction, against the petitioner, claiming the exclusive ownership and possession of the said street. When certain allegation. were made by the plaintiff in his plaint, it was obligatory upon him to prove those assertions through production of evidence before sought for decree could be passed in his favour. It appears that the learned trial Court framed the issues in complete oblivion of the pleadings of the parties and other material on record, while the learned Court is under an obligation to frame proper issues on the basis of materials, as envisaged under Order, 14, rule 3, C.P.C. Strangely enough, without deciding the ownership of the street, as asserted by the plaintiff, his suit has been decreed only on the basis of findings on Issue No.2 and on extraneous consideration. The learned Additional District Judge, to say the. least, instead of rectifying the legal errors, committed by the learned trial Court, has mechanically affirmed the decree, which approach of the learned Additional District Judge cannot be countenanced under any stretch of imagination.

6. In the above perspective, I have examined both the judgments and constrained to hold that both the Courts have committed grave legal errors in rendering the impugned judgments, which were passed not only in complete oblivious of the record of the case but the same are also trot sustainable in law. To my mind, both the Courts have committed illegalities and material irregularities, thereby calling for the interference of this Court in exercise of its revisional jurisdiction.

7. Upshot of the above discussion is that the present petition is allowed and both the judgments are set aside with no order as to costs, Resultantly, respondent's suit shall be deemed to be pending before the learned trial Court, which shall decide the same, afresh, after reframing the issues and calling upon the parties to lead oral as well as documentary evidence, if they so wish. H.B.T./M‑132/L Case remanded.