1991 PLP 668 (MLD)

Party producing evidence was bound by the statement of its own witness. Rana Nasurallah Khan for Petitioner. Nemo for Respondent. On 14-7-1986, Malik Muhammad Shah respondent filed a suit for permanent injunction restraining Mukhtar Ahmad petitioner/defendant from using the common wall of their houses and also for direction to the defendant to remove encroachment made by him, in the Court of Senior Civil Judge, Sialkot. The houses of the parties are contiguous to each other. The dispute relates to the common wall standing on the eastern side of the house of the respondent/plaintiff. According to the respondent/plaintiff, he was/is the exclusive owner of the disputed wall whereas the petitioner/defendant's plea was/is that the wall in dispute was a joint/common property. The suit was resisted whereon 8 issues were framed. The parties led their evidence. The Trial Court decreed the suit on 8-11-1988. The appeal filed by the petitioner/defendant was dismissed by the learned Additional District Judge, Sialkot on 25-6-1990, hence this revision.

2. Before me, the learned counsel for the petitioner submits that the findings of the Courts below suffer from misreading of material evidence, more particularly the sanctioned plan Ex. D1 and the statement made by Safdar Siddiq D.W. 1; that mandatory injunction cannot be issued after the completion of the construction and that the appellate Court has not applied its independent mind to the evidence on record.

3. I have considered the submissions made by the learned counsel with care. I do not agree with him. The question of the ownership of the disputed wall is a question of fact. Both the Courts have concurrently found that the disputed wall was/is exclusively owned by respondent/plaintiff. The learned counsel has not been able to point out any misreading/non-reading of the sanctioned plan or of the statement made by Safdar Siddiq D.W.1, who has clearly stated: The petitioner is bound by the statement made by his witness. There was/ is no legal bar for the Civil Court to grant mandatory injunction after the completion of construction of the disputed wall. The learned counsel has also failed to point out any illegality, material irregularity or jurisdictional defect in the impugned judgments. In his judgment, the learned Additional District Judge has stated that: "The plaintiff has successfully proved one thing that property owned by him is independent and distinct property. All the P.Ws. supported the version of the plaintiff. If the property owned by the plaintiff is distinct property then the wall of its eastern side must be exclusively owned by the plaintiff. The disputed wall was not demolished by the defendant when he demolished his house to reconstruct it according to the sanctioned plan. The report of the Local Commissioner also supports the version of the plaintiff. The D.Ws. have categorically made admissions which cannot be overlooked." Learned counsel for the petitioner has not been able to controvert the aforesaid observations made by the learned Appellate Court. Pursuant to the above discussion, the revision application fails and is accordingly dismissed in limine. A.A./M-2582/L Revision dismissed.