GHULAM MUSTAFA through L.Rs,s vs TAJ DIN through L.Rs,s

' MIAN SAQIB NISAR, J.---Vide order dated 6-2-2006, the respondents have been proceeded ex parte and, therefore, the ex parte arguments of the learned counsel for the petitioners have been heard.

2. Briefly stated the facts of the case are that respondent No,1 on 19-3-1981 filed a suit for the declaration, possession and permanent injunction claiming that he is the transferee of an evacuee Shop bearing No,B-IX-15-S-41 and the open place in front of the said shop measuring 9 feet and 10 inches x 6 feet and 10 inches, forms part of his shop, and that the petitioners should not deny his title thereto, who are trying to grab that property. The petitioners took up the plea that this property is not part of the shop, rather is a part of the street.

3. Out of the pleadings of the parties, the learned trial Court, inter alia, framed the issue "whether open space measuring 9'-10" x 6'-10" is included in Property No,B.IX-15S-41 of the plaintiff." The parties were put to trial and the learned Civil Judge vide judgment and decree dated 31-5-1992 while returning his findings on the above mentioned issue, came to the conclusion that this property has never been transferred to respondent No,1 as there is no mention of the transfer of the open place in his transfer documents by the Settlement Department. It has been held that the property in question is part of the street. Accordingly, the suit of respondent No,1 was dismissed, against which, an appeal was preferred by him, which has been accepted and the learned Appellate Court came to the conclusion that the open space is part of the shop transferred to respondent No,

1. In this behalf, reference has been made to some irrelevant documents on the record.

4. Heard. Record shows that neither the open place ever formed part of the shop allotted to the respondent nor it is specified in his T.O.; there is no map attached to the Transfer Order establishing, if the shop contains the open space in front of it as well. Even according to the respondent's own case, the open space is not in the constructed form, connected to the shop, but it is only abutting thereto. Obviously, the open place, which is not part of the constructed shop transferred to respondent No,1, can never be given to him as it is not plinth area appurtenant to the house, which if so, could be transferred to a transferee of a house under the Settlement Law, but not in the case of a shop. The only reason that in the N.C.S. Form filed by respondent No,1, the some measurement has been given, would not been that the open place out of the precincts of the shop was also part of it and, therefore, it stood transferred to him. It is the shop in the form of constructed property, which stood transferred to respondent No,1 and he cannot raise any claim over any open place in front of the said shop. The learned appellate Court has grossly misread the evidence and decided the matter on extraneous considerations, therefore, such judgment and decree cannot sustain, which is hereby set aside. The revision petition is accordingly allowed.

Revision .