KHAN MUHAMMAD Versus MUHAMMAD ALI

1. ORDER in a civil suit seek leave to appeal against the judgment of the Lahore High Court dated 10th of May, 1980 whereby the judgment in appeal passed by the District Judge which was one of variance was left intact dismissing the revision petition in limine.

2. The plaintiffs-respondents claimed to be the owners of a plot of land in Mitha Tiwana, Tehsil Khushab, District Sargodha. Adjacent to it was the house of the petitioners newly constructed one in which they had opened a window towards the land of the plaintiffs respondents. The latter sought a decree of declaration that they were owners of the plot with the consequential relief of perpetual injunction restraining the defendants from opening the window and closing the one at their expense which they had opened towards their land. The defendants-petitioners claimed ownership in the property which the plaintiffs-respondents were claiming and also the right to open the window and contested the suit. A number of issues were framed but the trial Judge dismissed the suit observing as follows: -

3. "Let me say at the very outset that the plaintiffs' claim is ambiguous. They have merely produced oral evidence to prove their ownership regarding plot. There are circumstances on record which make their alleged title doubtful. The plaintiffs have admitted that the water of the hand pump owned by the defendants flows towards the plot. It has also come on record that the plaintiffs tried to raise some construction but they were stopped by the defendants in denial to their title. They stopped the construction. There is oral evidence qua oral."

4. The District Judge reversed the findings of fact observing as hereunder:--

5. "Although it was disclosed that they stopped further raising it on the objection by respondents-defendants, yet the very factum of constructing it was suggestive of their possession. Further these witnesses supported the appellant's ownership. Unluckily the credit of these witnesses was not assailed on any motive or interestedness. Therefore, for all practical purposes their testimony emerged unscathed." and further that -

6. "The impugned window appears to have been constructed only three years. Since it opens towards the impugned site, it may well be allowed to continue unless a case for easement had been proved. No such prayer was made and therefore, the issue was not rightly decided by the lower Court. "

7. The High Court refused to interfere with this order finding no fault with it.

8. The learned counsel for the petitioners contended that the title could not be decided in favour of the plaintiffs-respondents in the manner and on the evidence on, which it was settled. Besides, the plaintiffs had not established any right to claim a permanent injunction against the opening of the window or closing the one which had been opened and that the finding of District Judge that "it may a nuisance" is only conjectural and hypothetical and on then basis of such a finding, relief sought for could not be granted.

9. We find that certain questions of law do arise on the submissions made by the learned counsel for the petitioners and leave to appeal is hereby granted. The petitioners shall deposit a sum of Rs.2,500 as security within thirty days from today failing which the order granting leave to appeal shall stand rescinded and the petition dismissed. This punitive order is being passed, because the learned counsel has pointed out that despite his writing to the petitioners twice, he has received no instructions from them and he is not in a position to have the petition dismissed for want of instructions but has tried to argue it.

10. M.I./K-36/S. Leave granted.