1991 PLP 904 (CLC)

Date of hearing: 9th September, 1990. This Civil Revision is directed against the judgment dated 28‑2‑1989 and decree dated 2‑3‑1989 passed by the l1nd Additional District Judge, Karachi West, whereby dismissing the appeal riled ' by the petitioner and upholding the judgment and decree passed by the XIth Civil Judge Second Class, Karachi. The facts leading to the riling of the above civil revision are that the petitioner and his two tenants namely Shaikh Abdul Hanif and Shaikh Arshad Mehmood riled 'a Civil Suit No.1577/85 (Old No.1859/72) against the respondents Nos.1 to 6 for declaration and injunction in the Court of XVIth Civil Judge 11nd Class a( Karachi. The case of the petitioner as set out in the plaint was that he is the lessee of Sindh Industrial Trading Estate Ltd., in respect of the immovable properties being two plots of land bearing Nos.C/52 and C/53 with building thereon situated in Sindh Industrial Trading Estate Ltd., Shershall Colony, Block V, Urdu Bazar, Karachi. It is the case of the petitioner that in tile premises on the said plots of land is being carried on the business of manufacture of cloth by means of powerlooms by Shaikh Abdul Hanif and Shaikh Arshad Mahmood who are the tenants of the petitioner. It is the further case of the petitioner that between the plots of land aforesaid and other adjacent plots runs a public road about 38 wide which is meant for common use of the public and on this road open two gates, each about 8' wide, one of each of the said premises of the petitioner. It is the further case of the petitioner that respondents Nos.2 to 5 are partners in the firm of respondent No.1, which carries on business of processing of raw hides and skins on the neighbouring plot of land measuring about two acres which they have acquired on lease from the Sindh Industrial Trading Estate Ltd. after the petitioner acquired his plots aforesaid on lease. It is his further case that the respondents have commenced use of the said public road and they are piling up raw hides and skins there and their workmen, employees and labourers who number many sit on the road from morning till evening engaged in proceeding of raw hides and skins by use of chemicals and acids etc. The skins are shorn of wool and wool is heaped there. The presence of raw hides and skins and the processing thereof has become a source of nuisance to the petitioner and their workmen and employees as it causes pollution of air, creates unhygienic conditions, generates offensive and unhealthy odors and threatens their health, well‑being and comforts. The presence of respondents' men and material obstructs the passage of the petitioner and their men and they are also hindered in movement of their goods. It is further case of the petitioner that they have protested to the respondents who have acted in a callous and hostile manner and indeed shown animus of continuing and perpetuating their activities. The respondents have denied the public character on the road and claimed it as their property although their own plot of land is situated away from it and is separated by the main road known as Urdu Bazar Road. In these circumstances, the petitioner filed the above suit against the respondents. The respondent No.6 has been impleaded as per order of the Court dated 13‑9‑1976. The respondents contested the suit and denied the allegations in their written statement. On the pleadings of the parties, the trial Court framed appropriate issues. The parties led evidence in support of their respective contentions. The trial Court on assessment of evidence adduced by the parties came to the conclusion that the petitioner claimed the property to be a public property but as Ext. D‑8 general lay‑out plan S.I.T.E. admittedly strip of land failing in between Plot Nos.C‑52 and C‑53 and plot of the respondent pertains to S.I.T.E* it has so far not been allotted to any body. The learned Civil Judge found that even general lay‑out ‑plan of S.I.T.E. does not show that it forms a part of road. In this view of the matter, he held that the petitioner has no locus standi to file the suit for declaration that the property in qu6stion is a public property. Similarly the petitioner in Suit No.1578/85 claimed the property to have purchased the suit property from Salch Shah but no such document has been produced to show that Salch Shah had any right or title in the disputed plot. In this view of the matter, he dismissed the suits. The petitioner being aggrieved against the judgment and decree went in appeal before the IInd Additional District Judge, Karachi West. The learned Additional District Judge, on re‑assessment of the evidence on record, affirmed the trial Court. The petitioner being aggrieved against the judgment and decree of the appellate Court, has filed the above revision petition. I have heard Mr. Mehar Hussain Mesawa, learned counsel for the petitioner in support of the revision petition and Mr. Tufail Ebrahim, learned counsel appearing for the Respondents. I have also gone through the pleadings and evidence adduced by the parties. I have perused the impugned judgments of the Courts below. Mr. Mehar Hussain Mesawa raised the same contentions as were raised before the appellate Court. The case of the respondents, as set out in their written statement, is that the area in dispute in between the plot of the petitioner is not a road but is a plot which is purchased by one Tanweer Ahmed from Salch Shah. The owner of Sher Shah and Tanweer Ahmed are partners of Shafi Tanneries i.e. respondent No.1 and the said portion of land is in occupation of Tanweer Ahmed since 1954 and being a partner of respondent No.1, the business of processing raw hides and skins of respondent No.1, has been carrying on the said plot. The learned Additional District Judge found that the two tenants of petitioner appeared in the witness‑box and. did not support the case of the petitioner. The tenant Abdul Latif (Ext.P/12) deposed before the trial Court that he has no grievance against respondent No.

1. He further deposed that the disputed plot is open in space and he does not know about its ownership. According to him, the disputed place was used by respondents for car‑parking. The findings brought on record would show that the open space in between, factories on Plots No.C‑52 and C‑53 and the space is about 30 feet is not the public passage. The perusal of the documents which were produced by the petitioner are maps of the area and the perusal of all the three maps brought on record by the petitioner himself does not show the area alleged by him as public as all the three sketches are silent in this regard. Even the lay‑out plan of site produced as Ext.D/8 does not show that the land falling in between plots Nos.C‑52 and C‑53 is a portion of road. In the view of the matter, he came to the conclusion that the petitioner has no locus standi to file the suit. These are obviously questions of fact and on these questions the Courts below whose competency in the matter has not been questioned, have recorded findings to the effect that the space between the plots is not a road. These findings of fact in the absence of illegality or material irregularity cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 115, C.P.C. Resultantly, I find no force in this revision petition. It is accordingly dismissed. In the circumstances of the case, the parties are left to bear their own costs. The above are the reasons for the short order dated 9‑9‑1990 dismissing revision petition on conclusion of the arguments. A.A./M‑1364/K Revision dismissed.