Rana MUHAMMAD ALI KHAN Versus MUHAMMAD YASEEN
This Regular Second Appeal is directed against the judgments and decrees dated 17‑6‑1968 and 18‑I1‑1968, passed respectively by a learned Civil Judge, Bhalwal, and a learned Additional District Judge, Sargodha.
2. Briefly stated the facts giving rise to this appeal are that Rana Muhammad Ali Khan, the appellant herein, filed a suit for perpetual injunction against the respondents, namely, Yaseen and Gulla, seeking injunction to the effect that the respondents should close their doors indicated at points `A' and `B' in the plan annexed with the plaint and should not interfere with the appellant's right to raise his construction on the aforementioned points `A' and `B'. Evacuee plots bearing Nos. 4, 5 and 6 were transferred by the Rehabilitation Authorities to the appellant while the adjacent plots bearing Nos. 2 and 3 were transferred to the respondents. It was alleged by the appellant in his plaint that about four years prior to the institution of the suit. the respondents wrongfully constructed doors at point `A' and `B' towards the plots which stood transferred to the appellant and thereby an obstruction was caused to his raising of construction on the said points.
3. The suit of the appellant was vehemently resisted by the respondents who pleaded that the plots transferred to the appellant as also to the respondents belong to one and the same evacuee. The doors at points `A' and `B' shown in the plan annexed with the plaint were constructed long ago by the evacuee owner and were in existence since times immemorial. Before the transfer of these plots to the appellant and to the respondents, these doors existed. It has been canvassed that the respondents did not construct these doors and that they were under no legal or moral obligation to close these doors. In fact, they had no other passage of the houses transferred to them. It was also pleaded that the plan annexed with the plaint was incorrect.
4. The divergent pleadings of the parties gave rise to the following issues:‑
(1) Whether the plan attached with the plaint is correct"' If not what is the correct plan and with what effect? O.P.P.
(2) Whether the defendants are the owners of the place where the disputed doors at `A' and `B' as shown in the plan annexed with the plaint are situated? O.P.D.
(3) Since when the doors in dispute exist on the spot and with what effect? O.P.P.
(4) 1f issue No. 2 is not proved, then whether the disputed doors are situated in the plots owned by the plaintiff? If so, with what effect? O.P.P.
(5) Relief.
5. After recording the parties evidence and after hearing them, the learned trial Court came to the conclusion that the doors in question existed since before the transfer of the plots to the defendants‑respondents and that the respondents being the lawful transferees of the said plots, the doors in question exist in their own property. It was thus found that the doors were not wrongfully constructed by the respondents a few years prior to the filing of the suit, as alleged by the appellant. Consequently, the plaintiff's suit was dismissed. His appeal also failed and hence the present appeal.
6. It has been mainly contended on behalf of the appellant that the learned Courts below have passed the impugned judgments and decrees mainly on the consideration that the respondents on the basis of right of easement were entitled to avail of the facility of the existence of the doors in question although, in fact no plea of easement was raised by the respondents in their pleadings nor an issue was framed in this behalf.
7. It is true that no plea of easement as been raised in the pleadings nor an issue to that effect has been framed. As a matter of fact, the learned Courts below have not pointedly found that the respondents enjoyed the right of easement in regard to the doors in question. They have, however, used the word easement' in their respective judgments but the ultimate conclusion is based on the consideration that the appellant failed to prove that the respondents constructed the doors illegally and wrongfully a few years prior to the institution of the suit after the plots were transferred to them. Both the Courts have recorded a unanimous finding on a question of fact that the plots owned by the respondents were duly transferred to them and that in these evacuee plots the doors in question already existed since time immemorial. It has further been found that the adjacent plots transferred to the plaintiff /appellant also belong to the same evacuee and when these plots have been transferred to him the doors in question already existed. The appellant being a transferee of evacuee plots has no right to claim any structural change in the adjacent plots and houses belonging to the same evacuee. He is obliged to avail of and enjoy the transfer of plots to him in the same shape in which these have been allotted to him. He has no right to ask the transferees of adjacent portion of the same property to make structural change in their construction. It has also been noticed that Yaseen respondent entered into an agreement of association with one Muhammad Hanif‑‑a displaced person. The said Muhammad Hanif who has become party at the stage of second appeal is in occupation of the portion of the plot originally transferred to Yaseen and for that portion no passage is available to Muhammad Hanif except the door at point `B', in the plan annexed with the plaint. He cannot possibly be deprived of the right of passage to the portion of plot in his possession to facilitate undue enjoyment by the appellant of the plots transferred to him.
8. In the light of the foregoing conclusions, this appeal has no merit and, therefore, it must fail. Accordingly, the appeal is dismissed with costs throughout.
H.B.T./M‑964/L Appeal dismissed.