ZARIN GUL Versus MALIK SAN

ORDER

1. FAZAL ILAHI KHAN, J. ‑‑‑Leave to appeal is prayed for against the judgment of the learned Peshawar High Court, Peshawar dated 12‑6‑1993 in Civil Revision No. 79 of 1992.

2. Facts of the case briefly stated are that Malik Jan respondent herein brought a suit, representative in character, on behalf of the proprietary body of the village against the petitioner for a mandatory order restraining the petitioner from interference in the right of passage of the inhabitants of the village over Shamilat land comprising Khasra Nos.170 and 171/1 and for removal of the hurdles created by the petitioner.

3. It was alleged in the plaint that the path in dispute is in existence since time immemorial which was blocked by the petitioner without any legal justification. That the action is causing great inconvenience to the respondents.

4. The suit was resisted by the petitioner in his written statement on various pleas. The learned trial Judge after recording evidence of the parties dismissed the suit on 30‑9‑1991. The respondent's/plaintiff's appeal challegning the judgment and decree of the trial Court was accepted by the learned District Judge on 13‑2‑1992, the judgment and decree of the trial Court was set aside and the respondent's suit was decreed as prayed for in the plaint. The learned High Court dismissed the revision petition maintaining the judgment and decree of the learned District Judge vide judgment dated 12‑2‑1993 against which leave is prayed for.

5. We have heard the learned counsel for the petitioner and perused the record. Admittedly the suit property bearing Khasra Nos. 170 and 171/1 is Shamilat Deh and the respondents are co‑owner in it. These Khasra numbers are shown as such in the Jamabandi of the year 1986‑87. Khasra No.170. totally measuring 75 Kanals 11 Marlas is "Banjar Oadeem" and "Maqbooza Malikan" while in Khasra No. 171/1 totally measuring 162 Kanals 13 Marlas only 20 Kanals is shown in the Hissadari possession of the petitioner, rest of it in Maqboozan Malikan. The learned Commissioner who visited the spot prepared the site plan wherein he has shown the existence of the thoroughfare stretching towards North of the village. The disputed portion is shown in it as (MUTNAZA JAGA) which is 17 feet in length and 10 feet in width. The Commissioner in his statement recorded in Court has stated as follows:‑‑

6. Evidently the Commissioner found the disputed path passing through the Shamilat land and a portion of it was found blocked by the defendant by raising a Baar.

7. The contention of the learned counsel that even if the thoroughfare is found to be in existence one Qabil Shah who owns the land across the TOI" would not allow the respondents to pass through the land even if the disputed path is restored, has got no force. At present respondents have no grievance against Qabil Shah and he has, therefore; not been made party to the suit and the issue raised was not an issue before lower Courts. The property is Shamilat Deh and Maqbooza Malikan therefore, it has been rightly held that there was no justification for the respondents to raise obstruction. The learned District Judge and the learned High Court both having concurrently held that petitioners are entitled to the decree prayed for, the finding arrived at is supported by evidence on the record. We find no infirmity in the judgment of the learned High Court. The petition is, therefore, dismissed.

8. AA./Z‑179/S Leave refused.