Mst. LALAN vs NOOR MUHAMMAD and 12 others

' ABDUL QADEER CHAUDHRY, J.---Leave to appeal has been sought against the judgment of the High Court dated 27-6-1993.

2. The facts in brief are that Respondents Nos. 1 to 4 brought a suit for permanent injunction with a prayer that the petitioner was causing hindrance to the right of passage, which they were using for the last over 50 years. It was also prayed that the petitioner may be directed to remove the wall constructed by her. The suit was decreed by the learned Civil Judge. The petitioner being aggrieved filed an appeal against the judgment of the learned trial Court. During the pendency of the appeal the parties agreed to the appointment of Ch. Muhammad Akram, Advocate, Chakwal, as a referee in the matter, for deciding the question as to whether the passage in dispute remained under constant use of the respondents for long and there is no alternative passage for them. Ch. Muhammad Akram submitted his report before the learned lower Appellate Court on 7- 5-1987. The learned Additional District Judge dismissed the appeal on the basis of the report. The petitioner challenged these orders in Civil Revision before the High Court, which was dismissed by the impugned judgment.

3. Learned Counsel for the petitioner submitted that as the evidence had been recorded by Ch. Muhammad Akram, Advocate, as such he was an Arbitrator, therefore, an opportunity should have been given to the petitioner to file objection to the award. This contention has no force. Ch. Muhammad Akram was appointed to resolve the dispute, by the parties themselves. He had taken the evidence to settle the real dispute between the parties. Such evidence was necessary because the contention of the petitioner was that there was an alternate passage for the use of the respondents, and that they had not been using such passage. After taking evidence, Ch. Muhammad Akram resolved the controversy which formed the basis of the judgment of the Additional District Judge. Even if Ch. Muhammad Akram be treated as Arbitrator, there was no allegation of misconduct against him, therefore, his report was properly accepted by the Courts below. The learned High Court has adverted to the facts of the case and observed as under:-- "Report of the referee Exh. C.1 on the basis whereof the judgment has been rendered by the learned first appellate Court clearly reflects the right of passage of the respondents on the basis of easement of necessity inasmuch as they do not possess an alternate passage, consequently, it cannot be said that the report has neither been misread or the learned lower appellate Court has rendered a wrong judgment."

Not only the learned trial Court but also the learned High Court disposed of the case on merits.

There are concurrent findings by all the Courts below. There is no misreading of evidence. No point of law of public importance requires determination by this Court.

' There is no substance in this petition. The same is dismissed and the leave prayed for refused.