MUHAMMAD SHABBIR And Others vs ANWAR HUSSAIN And Other
The matter involves a dispute over a passage between properties transferred by the Settlement and Rehabilitation Department. The respondent, claiming ownership of a quarter, filed a suit for declaration and injunction, alleging that the petitioners encroached upon a passage essential for accessing his property. The trial court decreed the suit, finding the passage existed and was used by the respondent, a decision upheld by the first Appellate Court and the High Court in revision. The petitioners challenged these findings before the Supreme Court, arguing that the lower courts misread transfer orders from Settlement Authorities and ignored evidence that the respondent had alternative access through Khasra No. 229. The petitioners further contended that the disputed area was part of their own transferred property and not a public street. Upon review, the Supreme Court found that the contentions regarding the misreading of evidence and the interpretation of the Settlement Authorities' orders required deeper examination. Consequently, the Court granted leave to appeal and ordered the parties to maintain the status quo pending final disposal.
- Can a court grant leave to appeal based on allegations of misreading of evidence regarding property transfer orders?
- Does an order of a Settlement Authority conferring property rights necessarily include an implied right of way over adjacent land?
- Is a suit for declaration and injunction maintainable when the existence of a disputed passage is contested as an encroachment on private property?
ORDER
ZIA MAHMOOD MIRZA, J.---The dispute between the parties relates to a passage shown as A.B.C.D.
In the site plan Exh.P-1. Anwar Hussain plaintiff/respondent who is the transferee/owner of one of six quarters bearing Property No.SE-9-R-58 claims that he came to occupy the said quarter and the courtyard in front thereof after the partition in the year 1947 and since then he has been using the said passage for access to his quarter though the occupants of other quarters have been using another path going through Khasra No.229 shown as E.F.G.H in the site plan. The passage in dispute, it is stated, is situate in-between the to Properties bearing No.SE-9-R-56 and SE-9-R-54 which have been transferred to the to petitioners, the real brothers who, it was alleged, had encroached upon the said passage thus blocking the respondent's access to his quarter. According to the plaintiff, there is no other direct access to his quarter except through the passage in dispute. With these assertions, respondent No. I brought a suit for declaration and injunction against the petitioners and the Administrator, Lahore Municipal Corporation and the Province of Punjab through Settlement and Rehabilitation Department in the year 1975 seeking it to be declared that the passage in dispute in part of Property No.SE-9-R-58 "and same is passage to be used by the plaintiff exclusively for having access to his house." As a consequential relief, Administrator, Municipal Corporation, Lahore was sought to be mandated to demolish the entire structure raised by the petitioners over the disputed passage and a prohibitory injunction was sought to h;, issued to the petitioners to restrain them "from obstructing the plaintiff in using the passage ABCD in any way or manner and further prohibiting them permanently from raising construction of any type or nature over the passage ABCD ....."
2 The suit was contested by the petitioners on the ground, inter alia, that it was barred by limitation and was also hit by the bar of res judicata. It was pointed out by the petitioners that an earlier suit filed by the plaintiff against them was dismissed by the Civil Court which operated as res judicata.
The petitioners denied the existence of the passage in dispute and claimed that it was an open courtyard forming part and parcel of Property No.SE-9-R-56 transferred to Muhammad Shabbir petitioner and it was never used as a street by any person including the plaintiff.
3. Learned trial Court after framing the necessary issues arising from the pleading of the parties and taking/considering the evidence adduced by them accepted the existence of the passage in dispute and its user by the plaintiff and decreed the plaintiff's suit vide judgment dated 12-9-1982.
The findings of the trial Court were upheld by the first Appellate Court as also by a learned Judge in the High Court who dismissed the petitioners' revision vide the impugned judgment.
4. Learned counsel for the petitioners has contended that the learned Judge in the High Court has misread the transfer orders passed by the Settlement Authorities in holding that permanent right of user of the passage in dispute was conferred on the plaintiff by those orders. According to the learned counsel, no such right was given to the plaintiff by any of the orders of the Settlement Authorities. He has referred to the order of the Settlement Commissioner dated 19-10-1973 to contend that only one room in Property No.SE-9-R-58 and nothing else was transferred to the plaintiff. Learned counsel also took exception to the observation/finding of the High Court that it was only due to the availability of the passage in dispute that the room/quarter in possession of the plaintiff was treated as an independent unit and transferred to him. Learned counsel with reference to the site plan Exh.Pl has submitted that the plaintiff and other occupants of different quarters had independent access/passage through Khasra No.229 and the Settlement Authority had the said passage in mind when holding that Property No.SE-9-R-58 was divisible. Learned counsel also pointed out that the plaintiff himself admitted in para.3 of his plaint that the access to the quarters in Property No. SE-R-58 lay through Khasra No.29 which was a street. Learned counsel also made a grievance that the orders of the Administrator, Lahore Municipal Corporation dated 23-8-1961 Exh.P2 and of the Commissioner Exh.P3 have also been misread by the learned Judge in the High Court. According to the learned counsel, it was nowhere held in these orders that the petitioners had made any encroachment on the passage in dispute.
5. Contentions raised by the learned counsel need deeper examination. Leave to appeal is, therefore, granted to the petitioners.
Both the parties shall maintain status quo pending the final disposal of the appeal.