1. This appeal under section 96 Civil Procedure Code is directed against the judgment/decree dated the 30th July, 1973, passed by the learned District Judge, Quetta, whereby he has dismissed the appellant's suit for perpetual injunction and removal of encroachment in the lane in dispute.
2. The facts briefly are that appellant Miss S. Mall is the owner of property situated on Khasra Nos. 3185 and 3486, measuring 5050 ft., in Ward No. 10, Mauza, Tappa and Circle No. 3, Tehsil Quetta. On the said property she has constructed a house which is bounded by walls, a portion of the property extends to Patel Road and in front of the other portion runs a lane 10 feet wide with an entrance from Patel Road. The lane is about 100 feet in length. It contains drains on its either side constructed by Quetta Municipal Committee, which joins the main, drain on Patel Road. These drains are for the purpose of carrying sewage water from the houses in front of which they are running and they are being washed and cleaned by the Sanitary Department of Quetta Municipal Committee. The said lane has been so shown in the plan of revenue record.
3. Sometime in the month of December, 1963 appellant went to Punjab to spend winter season, during her temporary absence respondent No. 1, who had by then got some property on the other side of said lane, removed a portion of the drain running by the side of appellant's property and started to make construction 'involving a part of lane thus extending into said lane and by side of wall of appellant's property depriving her of amenities she has been enjoying not only of use of lane but also flow of her sewage water from her property was stopped as well as door of her house got closed due to construction of wall by respondent. The lane in question is stated to be 100 feet in length and 10 feet wide. It has been the case of appellant throughout that respondent had no right to make any encroach--ment at said portion of lane and to deprive her of amenities she has been enjoying. The illegal construction not only stopped passage of flow of sewage water from her property but also deprived her from use of a part of lane which she has been using along with other people living on both sides of lane since a long tithe because this lane his a public one maintained by Quetta Municipal Committee and was in existence before partition of Indo---Pak Sub-Continent which was later on made Pucca by Municipal Committee. Initially she applied to Municipal Committee Quetta to take cognizance, of the matter and prevent respondent from making any illegal construction and demolish the same and maintain status quo of lane as it has been since long and before encroachment of respondent.
4. Respondent No. 1, Abdur Razzak in his written-statement took the stand inter alia that he got a plan approved by Quetta Municipal Committee and raised construction by way of extension of his house on his own lane and that he made no encroachment upon any portion of appellant's lane nor affected her existing drainage system or closed her already existing door by constructing a wall along her house on the lane and suit was filed mala-fide to barras him. However he admitted that the length of lane is 100 feet and a portion of which he has used. Respondent Quetta Municipal Committee filed a written-statement .On 17th March, 1964 apart from showing ignorance about the allegations in appellant's plaint, .Submitted that respondent Abdur Razzaq had carried out certain construction in his property situated at Patel Road, Quetta, in accordance with the plan approved by Municipal Committee. In other words stand of Municipal Committee at that time was of a non- committal nature.
5. Trial Court framed issues, recorded evidence of witnesses produced by parties and passed judgment stated above.
6. I have heard Mr. 1. H. B. Hanafi, counsel for appellant and Mr. Munawar Ahmed Mirza, counsel for respondent No. 1 and his successors in interest respondents 3 and 4 and Mr. Yusuf Cliaudhary, Assistant Advocate-General on behalf of Quetta Municipal Committee at length, and with their assistance gone through the record of case and statement of witnesses produced by the parties.
7. Learned counsel for appellant submitted that conclusion reached by lower Court that appellant did not state in her statement that her existing drain was blocked by respondent by construction of house is unwarranted and against documents on record and that the lower Court came to incorrect finding by holding that appellant's drainage system has not been blocked by construction or any encroachment by the respondent. He submitted that sketch and the 'report of the Local Com--missioner Khwaja Safdar Rashid Advocate -appointed by the Court below clearly support the case of appellant that she has been deprived of use of her existing sewage system as well as the use of a part of lane, and existing door of house, has been ignored by the trial Court, had this report and other documents been considered minutely the result would have been other-- wise, and that due to encroachments raised by respondent in the said lane, appellant has been deprived of use and utilization of larger part of open portion of her house and that judgment of the trial Court suffers from non-considera--tion of important pieces of evidence on record., He therefore prayed for setting aside the judgment in question.
8. Mr. Munawar Ahmed Mirza Advocate appearing for respondents 1, 3 and 4 took the stand that lane in question where construction has been made did not belong to appellant. However on questioning he had to concede that it did not belong to respondent either and that this lane of. 100 feet long 10 feet wide was used by all the residents who have their houses on both the sides of lane.
9. He argued that none of other residents did complain or come to the Court to obviate their grievance with regard to the construction made by respondent. By this he wanted to convey that although lane may be a public lane or Municipal lane for the use of the residents or the general public still a suit could not be maintained unless all the residents come forward. This argument has no force because in the first instance it is the person whose rights get affected, has a grievance and it is him who normally goes to the Court and in this case there is no dispute' about the fact that construction made is on the tail end of lane, is in from of appellant's house, whose sewage system and existing door has been closed depriving her of the existing amenities. Naturally it would be appellant whole will first come to the Court.
10. The contention of appellant that her well-established right of passage of drainage and of fresh air has been badly affected due to encroachment made by respondent are further fortified by report dated 27-9-1971 of Mr. Khwaja Safdar Rashid Advocate, who was appointed by trial Court as local Commissioner wherein he stated; "About 35 feet long portion of the house of the plaintiff adjoins the disputed construction. Due to the disputed construction, the plaintiff cannot go on the land underneath the disputed construction and cannot open a door or window in the 35 feet long wall of her house which adjoins the disputed construction ; The disputed construction is not a hinderance in the flow of water in the existing drain of the house of the plaintiff, but due to the disputed construction the plaintiff is not able to drain out the water of 35 feet long portion of her house which adjoins the disputed construc--tion, except that the plaintiff may construct a drain inside her house and connect it with the existing drain situated in the lane ; and The existing windows of the house of the plaintiff are not affected by the disputed construction, but a door fixed in the 35 feet long wall of the house of the plaintiff is blocked by the disputed construction."
11. I may observe that this report of the local Commissioner was simply ignored by the lower Court.
12. Had it been considered perhaps situation would have been otherwise.
13. As to the observation of the trial Court that encroachment of building was completed by respondent on 22nd February, 1964, and the suit was filed on 21-2-1964 therefore the plaintiff had failed to prove any encroachment of her right within time. I am afraid it is also factually not correct because Chairman Municipal Committee Quetta on an application of appellant dated 21-1-1964 issued a show-cause notice to respondent for unauthorise construction (Exh. P/1 page 37) of Paper Book wherein it has been stated that :- "You have started unauthorised construction on unnamed lane shooting from Patel Road, Quetta.
14. You are hereby required to demolish the newly constructed portion on the said lane within seven days from the date of receipt of this notice, falling which legal action will be taken against you at your risk and cost."
15. It goes to show that Municipal Committee was satisfied that the encroachment was not complete.
16. The matters do not end here. Exh. P/2 dated 13th July, 1967 is another letter by Chairman Municipal Committee Quetta to Commissioner, Quetta Division wherein he complained of illegal construction and blocking of public lane, this was in reply to appellant's application, the letter reproduced below :-- "As far as the construction of the building belonging to Mr. Abdul Razzaq on Patel Road, is concerned, it is constructed with the permission of Quetta Municipality vide resolution No. 13 dated the 31st August, 1963. The construction is not unauthorised as stated by the complainant, but from the inspection of the site it is quite clear that illegal encroachment has been made by Mr. Abdul Razzaq on the lane which is used by the inhabitants of the same lane with the result that the gate of house belonging to Miss S. Mall has been closed. It is not understood how Mr. Abdul Razzaq had managed to construct a room by closing the main lane from which the complainant had very right to use it. But however Mr. Abdul Razzaq being an influencial person had managed to get the permission of the Municipal Committee to construct a room in the lane for which he had no right to do so.
17. Now there is no alternative except to lodge a complaint in the Civil Court which the complainant has already done and the case is pending there. The Municipal Committee cannot demolish the construction for which it has already given its approval once before in 1963. The result of Civil Suit which she has lodged in the Civil Court may be awaited."
18. Over and above Exh. P/4 dated 1-4-1964, Exh. P/5 dated lit April, 1964 and Exh. P/6 dated 12th May, 1964 are letters by Deputy Settlement and Rehabilitation Commissioner, Quetta Kalat Region, Quetta and an applica--tion by one Muhammad Shaft Gilani wherein he issued show-cause notice to respondent Abdul Razzaq on ground that there is some new construction made by him which has blocked the passage of premises No. 5-11/18 which has not yet been disposed of and he is in unauthorised occupation and evaluation price has not been paid and he was directed to show cause that why the property No. 5-11/-:8 has been amalgamated into house No. 5-11/12. Already transferred to him. Exh. P/6 is an order .For enquiry by Deputy Settlement Commissioner, as to how respondent managed to mutate the property which was not transferred to him, that means the property in dispute to this case.
19. All these important facts which go to the very root of this case have been ignored by the learned Court below and his observation that appellant has no cause of action to move a Court .Of equity holds no water. No doubt, section 54 of Specific Relief Act provides that :-- "Injunction may be granted, where there exist no standard for ascertaining the actual damage caused, or likely to be caused by invasion, where the invasion is such that pecuniary compensation would not afford adequate relief."
20. But the trial Court was wrong in my opinion to hold that the appellant has failed to establish her legal right being encroached to entitle her to grant of injunction or that she has to show an actual or threatened invasion of such right. Mr. Yusuf Chaudhry Assistant Advocate-General appearing for Municipal Committee argued that the impugned judgment is not based on evidence on record and is not correct. Mr. I. H. B. Hanafi Counsel for the appellant relied on Abdul Haflz and another v.
21. Muzaffar Karim (1), a Single Bench decision wherein it was held:-- "Nuisance is incapable of exact definition but for the purpose of law of tort, it may be described as unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land."
22. He next relied upon Jalal Din and another v. Ch. Abdul Qayyun and others (1977 SCMR 245and section 55 of Specific Relief Act, 1877; wherein it was held :- "Appellant encroaching upon adjoining public path and raising structure thereon thereby blocking passage of light and air to adjoining property of respondent and blocking its entrance door, windows, ventilators and water-spout-case, held not one of interference with easement right of respondent but one of removal of nuisance resulting in injury to respondent's property and respondent entitled to ask for relief of mandatory injunction."
23. The same judgment was relied by Assistant Advocate-General appearing for Municipal Committee in support of his argument and submitted that encroach--ment may be removed on lane belonging to Municipal Committee having a public lane for benefit of general public.
24. Mr. Munawar Ahmed Mirza relied on Parundaung Bazar Co. Ltd. v. Ellerman's Arraccan Rice & Trading Co. Ltd. (AIR 1934 Rang. 144wherein it was held that :-- "Where the plaintiff has given notice before the defendant's building has been completed that the defendant thereby will obstruct his easement of light or air, the plaintiff is not disentitled to claim an injunction in a suit that he has brought after the building has been completed, merely because he had not filed a suit or sought an interim injunction at an earlier stage."
25. But facts of above case are materially different than the present case, hence is of no help to counsel. Appellant filed various applications to the Chairman Municipal Committee and Commissioner, Quetta and finally filed suit for injunction and during this period the controversial was not complete.
26. Counsel of respondent Mr. Munawar Ahmed Mirza during course of argument offered compensation to the appellant for encroachment but this submission was not only opposed by the counsel for appellant but also counsel for Municipal Committee, Quetta on the grounds that the compen--sation is not adequate remedy in the present circumstances of the case because main affected part of lane belongs to the public and the residents ofthe area and appellant has been deprived of many amenities which she has been enjoying such early. These objections are weighty in the circumstances of this case otherwise I would have allowed appellant to be compensated.
27. Chairman of Municipal Committee and its Engineer along with their counsel appeared in person in Court on the date of hearing. They submitted that it is necessary that illegal encroachment be removed. Seeing the position Mr. Munawar Ahmed Mirza, learned counsel for respondent stated that he be given two months time to remove the encroachment, to which counsel for other side raised no objection: For the reasons stated above I accept this appeal, set aside the impugned judgment and decree of the District Judge dated 3Q-7-1973 with costs throughout and direct the respondents to remove encroachment within the period of two months from the date of this judgment.