1984 PLP 2223 (CLC)

(a) Civil Procedure Code (V of 1908)‑ --O. XXXIX, rr. 1 & 2‑Temporary injunction, grant of‑Coloniza tion Officer sanctioning passage through land of petitioner in 1936, with consent of parties and same never challenged by any one‑Passage continuously in use of respondent for nearly half a century and res pondents acquiring easement right‑Issue of temporary injunction by trial Court restraining petitioner from obstructing use of way to respondents, held, justified and proper. (b) Civil Procedure Code (V of 1908)‑ ‑‑O. XXXIX, rr. 1 & 2‑Temporary injunction, grant of‑Issuance of Court mandate‑Trial Court granting temporary injunction restraining petitioner from obstructing use of passage by respondents legally sanctioned to them and also issuing directions to revenue authorities through Court mandate to restore such passage‑ Contention that issue of such mandate without formal prayer by respondent, not justified and Court acted in excess of jurisdiction‑Held, Court mandate was essential to make temporary injunction effective and pur poseful. Chiragh Din v. Chairman, Thal Development Authority 1970 S C M R 29 ref. (c) Civil Procedure Code (V of 1908) ‑‑S. 115‑Concurrent findings of Courts below not suffering from any legal defect, held, not open to exception. This revision petition has been filed by the petitioner against the order, dated 10th December, 1981 passed by the learned District Judge. Vehari, affirming the order of the learned Civil Judge 1st Class, Vehari, dated 29th July, 1980 whereby temporary injunction in favour of the res pondents was granted and the petitioner appellant was restrained from obstructing the respondents from using the "way" which pass through the land of the petitioner.

2. Briefly stated facts of the case are, that both the parties reside in Chak No. 481/E. B., district Vehari where they own landed property contiguous to each other. The respondent filed a declaratory suit in the Court of Civil Judge, Vehari alleging that he owned land in Square No. 7‑A "Kacha road" respondents pass through Killa Nos. 23/2, 24 and 25 of Square No. 8 owned by the petitioner, which was in his continuous use since 1936 being the only means of approach to his lands and prayed that a declaration be issued in his favour as he had acquired a "right of easement" to use the road. Apprehending that the petitioner would demolish the road, he also applied for temporary relief restraining the petitioner from demolishing it or obstructing the respondents to use the same during the pendency of the suit.

3. The learned Civil Judge appointed a commission to know if the road in dispute existed at the spot and if did not exist then a report should be made as to when it was demolished. The commission in his report, dated 9th July, 1980 reported that the petitioner by taking oath on the Holy Book admitted before him that he had demolished the road under dispute on 1st June, 1980 i. e. a day prior to the institution of the suit by the respondents.

4. The learned Civil Judge being satisfied that a katcha road exis ted since 1936 till 1st June, 1980 and that it was being used continuously by respondents he issued temporary injunction in favour of the respondents as prayed for and further directed the Tehsildar through Court mandate, A to restore the demolished "way". Appeal against this order filed by the petitioner failed before the learned District Judge, hence this revision petitions.

5. I have heard the learned counsel for the parties and also perused the record.

6. Learned counsel appearing on behalf of the petitioner submitted: that because no entry pertaining to the disputed road (passage) existed in the revenue records, therefore, the learned lower Courts were not justified to issue the temporary injunction. He further submitted that there was no prayer by the respondent‑plaintiffs for restoration of the road (passage) through a Court mandate and the learned Civil Judge acted in excess of his jurisdiction by granting the relief which was not prayed for. Reliance is placed on Chiragh Din v. Chairman Thal Development Authority (1970 S C M R 29) in support of the last contention.

7. It appears from the record that Muhammad Ramzan (father of the petitioner) had consented to the sanctioning of "passage" through his lands to be used by Nizam Din (father of the respondents) and conse quently Colonization Officer sanctioned" it on 1st February, 1936. This order admittedly was never challenged. Obviously, therefore, the respon dents have been continuously using the way for nearly half a century. In these circumstances the grant of temporary injunction does not seem to be improper.

8. As for the objection to restoration of "way" through the man date of the Court is concerned, the petitioner had himself admitted before the commission appointed by the lower Court that the "road" existed till 1st June, 1980 and thus he supported the stand of the respondents. Therefore, I am of the view that the issuance of Court's mandate was essential to make the "temporary injunction" effective and purposeful. Also I find that this relief is not consistent with the "suit filed" or the `relief claimed" by the respondents. The authority cited by the learned counsel for the petitioner does not apply to the facts of the case in hand inasmuch as the disputed "road" in this case was demolished so as to bring a right which had accrued to respondent before.

9. For the foregoing reasons, I find that the concurring findings of the Courts below do not suffer from any legal defect and are, therefore, not open to exception.

10. The result is that the revision petition fails and is hereby dismissed. There is no order as to costs. M. Y. M. Petition dismissed.