AMIR BEGUM Versus NASEEM AKHTAR

This civil revision arises out of a suit instituted on 25th November, 1979 by the respondent against the petitioner in the Civil Court at Lahore', for a permanent injunction restraining the petitioner from demolishing the boundary wall shown as A & B of the house of the petitioner and the terminal C & D of the respondent in Mumtaz Street, Lahore alleging that the plaintiff /respondent purchased the land originally vide two registered sale‑deeds from Malik Sadiq and thereafter constructed a house, property No.SE‑17‑R‑14 and also a terminal wall alongwith the boundary wall of the defendant‑petitioner which existed there for so many years and without having any exit or entrance of the petitioner in that wall. The petitioner had her independent entrance on the road side with the main gate of the building opening towards that. The petitioner intended to demolish her boundary well A‑B and thus to interfere with the privacy of the respondent's verandah of the house.

2. The petitioner contested the suit after raising objections as to the maintainability of the suit stating that by constructing a wall C‑D the respondent had frustrated the plan of the petitioner who wanted to install a gate to have an access to the street. The wall C‑D had been constructed with the sole object of annexing the street land with the land of the house to use the same for a lawn. The respondent had no right over the land on which he had raised the terminal wall. The terminal had been constructed in the street and thereby the passage to the petitioner's plot had been obstructed.

3. The learned Civil Judge gave his finding that the 'suit as brought was maintainable and that stood as proved that the disputed land was the property of the respondent as claimed by her which was not a part of the street and the petitioner had no legitimate right of passage towards that land. The disputed land was in full use and occupation of the respondent and she had got plan sanctioned from L.M.C which had not raised any objection to that about the existence of any street so the disputed piece of land could not be treated as a public street or thoroughfare from any angle of inter pretation. The learned Civil Judge expressed that he was satisfied as to the contention of the respondent. He held the respondent entitled to the relief to the extent of her own wall i.e. C‑D since the respondent would not be entitled to have wall A‑B as reconstructed so he decreed the suit in favour of the respondent as against the petitioner with the exclusion of wall A‑B vide his judgment dated 23‑2‑1985.

4. The petitioner being aggrieved of the decree passed by the learned Civil Judge carried an appeal which came to be decided by Ch. Mohammad Saeed. Additional District Judge, Lahore. The learned Additional District Judge after discussing the evidence observed that the submission of the petitioner was weightless in view of the fact that the respondent had proved that the street was not a thoroughfare and the petitioner was not entitled to use the same, besides the oral evidence, the documentary evidence had also supported the case of the respondents and disproved the case of the petitioner. The petitioner had failed to establish that she had a right to use the property in dispute. He upheld the finding of the learned Civil Judge and dismissed the appeal vide his judgment dated 20‑2‑1986.

5. The learned counsel for the petitioner had taken an exception to both the judgments of the Courts below on various grounds and has supported his submissions by a number of authorities. The learned counsel for the respondent in order to maintain that both the judgments arrived at by the Courts below are correct and not interferable has made various submissions and in support thereof has cited a large number of authorities.

6. It has been found here that the case could have been decided directly had a proper step been taken up rather than to have both the parties to go for blind jumps., to weigh that and there from to conclude the matter. As according to the respondents she purchased the land from one Mohammad Sadiq by two registered sale‑deeds but it has been noted down that the two registered deeds were not placed on the record nor both the Courts below felt any necessity of asking the plaintiff /respondent to, place on the record the two registered deeds since the appreciation of the same as to the basic question was necessary from the very direct evidence.

The present dispute can be resolved on a safer ground i.e. by looking into the deeds as to the area with its boundaries purchased by the plaintiff /respondent and then thereafter by appointing a commission as to see by metes and bounds that whether the disputed strip of land or the alleged street falls within the land purchased by the plaintiff /respondent or is beyond it in the absence of a set back, as some street or a land as a thoroughfare. The trial . Court is, therefore, directed to require the plaintiff respondent to produce all the registered deeds and then appoint a commission at the expense of both the parties to go for the measurement of the area so as to see that whether the disputed strip of land falls within the land purchased by the plaintiff‑respondent or is outside that and send the result to this Court alongwith its own view within four months for a better decision of this civil revision by this Court. The parties are directed to appear before the trial Court on 2nd January, 1988.

H.B.T./A‑228/L, Order accordingly.