1990 PLP 1673 (SCMR)

AJMAL MIAN, J.‑Leave to appeal was granted to consider, whether the High Court was right to non‑suit the appellant under Issue No.5 while deciding R.SA. No.498 of 1976 filed by the appellant against the judgment and decree dated 9‑6‑1976 passed by the learned District Judge; Jhelum, in Civil Appeal No.190 of 1976.

2. The facts to be noted are that Ghulam Mehdi Khan owned Plot No.587. After his death the same was inherited by Muhammad Farooq who sold part of the plot to Abdul Karim and part to the appellant, the latter purchased the same through a registered deed dated 4‑6‑1968. It is the case of the appellant that after the above purchase, he submitted a building plan to the respondent which was neither approved nor rejected within 60 days and, therefore, he started the construction work. However, on 23‑5‑1969 he received a notice from the respondent asking him to remove the construction from the disputed portion which was, according to them, was a passage. Thereupon, the appellant filed Civil Suit No.422 of 1969 on 12‑6‑1969 in the Court of Civil Judge, 1st Class, Chakwal, for declaration and permanent injunction. The above suit was resisted by the respondent and inter alia it was pleaded that there was a passage on the disputed site which was used by the public. On the basis of the pleadings of the parties, the following issues were framed:‑‑ "(1) Whether the suit is not maintainable m its proper form? (2) Whether Union Committee is a necessary party? (3) Whether the general public using the t street and having a right of passage of water is also a necessary party? (4) Whether the plaintiff is estopped by the decree, dated 10‑2‑1968 and is barred by the plaint of Muhammad Farooq in said suit? (5) Whether the plaintiff is the owner in possession of the suit property and is thus entitled to injunction prayed for? (6) Relief." At first the matter was referred to a sole arbitrator but his award was set aside and thereafter the suit was proceeded with by the learned Civil Judge. The parties produced ocular and documentary evidence. The ,learned Civil Judge by his judgment and decree, dated 16‑4‑1975 decreed the suit. Thereupon, the respondent filed Civil Appeal No.190 of 1976 which was allowed by the learned District Judge, Jhelum, through his judgment, dated 9‑6‑1976. Against the above appellate judgment and decree, the appellant filed aforesaid R.SA. Which was dismissed by a learned Single Judge of the Lahore High Court.

3. In support of the above appeal, Maulvi Sirajul Haq, learned A.S.C. appearing for the appellant, has vehemently contended that no evidence was produced by the respondent that in fact there was any public street on the disputed site. His further submission was that since the respondent under duress got 10 ft. wide strip excluded for passage by the appellant's predecessor‑in -interest Ghulam Mehdi Khan, the same had no legal effect and that the appellant being the successor is entitled to claim the same. The learned first appellate Court has recorded the following finding of fact:‑‑ "...From the statements of Haji Ali Muhammad (P.W.1) and Mirza Abdul Hakeem (P.W.2) as well as Raja Nur Alam (P.W.3), it is more than clear that Raja Nur Alam respondent purchased the land over which he has raised a house, from one Farooq and this Farooq is the son of Master Ghulam Mehdi. It is also clear from their statements that Master Ghulam Mehdi had purchased an evacuee plot including the plot sold to Raja Nur Alam respondent and a portion of a few marlas to Abdul Karim (D.W.2) vide decree (D.6). According to the plaint the respondent purchased the plot of his house vide registered sale deed, dated 4‑6‑1968. Abdul Karim (D.W.2) purchased the portion of the plot vide decree, dated 10‑2‑1968 (before the present sale). Raja Nur Alam respondent himself as (P.W.3) stated that he had got the bargain of Abdul Karim (D.W.2) settled with Farooq, but he failed to remember how much land was purchased by said Abdul Karim. He also told that this sale by Farooq in favour of Abdul Karim (D.W.2) was through a Court decree and the place sold to Abdul Karim (D.W.2) was also indicated in a site plan. He also admitted that he himself had purchased the plot after the sale to Abdul Karim (D.W.2). He denied that the himself had shown a street of five feet width at the disputed place in his site plan. Anyhow it is admitted by Nur Alam in cross‑examination that he had got the bargain of Farooq and Abdul Karim settled. The sale as pointed out above, is evidenced by decree (D.7). Now in this decree the boundaries of the land sold to Abdul Karim have been described in detail. It is clearly in this decree that on the north (of the portion of the plot sold to Abdul Karim) was a street on the south was the house of Abdul Karim, on the east was also a street and on the west a house of Mauj Din. If we keep the site plan submitted with the plaint before us then it is more than clear that the disputed street would be the street on the north of the plot sold to Abdul Karim, on its east would another street, on the west would be the house of Mauj Din and it is in the statement of Abdul Karim that he had a house on the south of the portion purchased by him. The learned Civil Judge argued that the respondent was not bound by this decree as he was not a party to it, but the learned Civil Judge lost sight of the fact that the respondent had purchased the plot from Farooq, who had also sold a portion to Abdul Karim previously and in the decree he had clearly shown a street on the north of the portion sold to Abdul Karim, that is, the disputed street was shown by him and the conduct and action of the predecessor‑in‑interest of the respondent would be binding upon him as well. The matter does not end here. Master Ghulam Mehdi had submitted site plan (D.4) to the Municipal Committee covering the whole of the evacuee plot purchased by him and this was sanctioned by the Municipal Committee on 31‑8‑1965. It clearly shows that the northern portion of the evacuee plot was kept by Master Ghulam Mehdi himself (this can be also inferred from the evidence of the parties in the present case), on its south is the portion of open plot (which has now been sold to the respondent), on its south and on the north of the portion sold to Abdul Karim has been shown the disputed street which is ten feet wide." The above finding of fact has been concurred with by the High Court.

4. We have gone through the relevant original record and we find that the above finding of fact recorded by the learned first appellate Court is in consonance with the evidence on record inasmuch as Exh.D/4 is a blue‑print indicating the portion of the plot purchased by aforesaid Abdul Karim and by the present appellant. It also indicates ten feet wide strip. The house of Mauj Din referred to by the learned first appellate Court in the above quoted portion of the judgment is also indicated. It has not been brought on record by the appellant that at any point of time Ghulam Mehdi Khan after excluding ten feet wide strip from his plot of land for the street as per resolution of the respondent Committee had ever claimed the same as his property. The appellant, being the successor, cannot have better right than that said Ghulam Mehdi Khan who by his own act voluntarily excluded the above ten feet wide strip for the street, though at the behest of the respondent. The first appellate Court, being a Court on question of fact and law, could have recorded the above finding of fact on the basis of material on record, which has been upheld by the High Court. The appeal involves evaluation and appraisal of the evidence which has been done by the first appellate Court and the revisional Court. It does not suffer from any infirmity as to warrant interference by this Court. The appeal is, therefore, dismissed but there will be no order as to costs. AA./N‑262/S Appeal dismissed.