JAWWAD S. KHAWAJA, J.- The petitioner/defendant impugns the concurrent orders of the learned Trial Court dated 10.6.2005 and of the Appellate Court dated 8.9.2005 whereby an application filed- by Mahmood Ahmad Khan, respondent/plaintiff under Order 39, Rules 1 and 2, CPC has been allowed.
2. The facts of the case are straightforward. The respondent/plaintiff was owner of two houses which were separated by a street one of these houses bearing No. 570 has been sold to the petitioner through sale-deed dated 16.8.2004. This sale-deed has been executed by Ijaz Ahmed, respondent No. 2, as general attorney of the 1 respondent/plaintiff.
3. The case of the respondent/plaintiff is that he had placed, iron girders over the street dividing the two houses and was using the area over these iron girders. In para 4 of the plaint it has been expressly averred that the respondent/plaintiff had earlier entered into an agreement with respondent No. 2 for the sale of the house now purchased by the petitioner. It appears that as part of the sale transaction he has also constituted respondent No. 2 as his general attorney vide registered power-of-attorney dated 5.1.2004.
4. According to the contents of the plaint, while entering into an agreement with respondent No. 2, the respondent/plaintiff had stipulated that the wall of the house which supported the iron girders, would be a common wall and will not be demolished.
5. Learned counsel for the petitioner contends that no such stipulation was incorporated in the power-of attorney executed by the respondent/plaintiff in favour of respondent No. 2. It is further submitted that the sale-deed in favour of the petitioner itself is very clear and unambiguous. It expressly states states t house has been sold without any encumbrance. More specifically the right to make all types of construction and all rights under and above the house sold to the petitioner were expressly conveyed to the petitioner.
6. According to learned counsel, even if there was any agreement between the respondent/plaintiff and respondent No. 2 to the effect indicated in para-4 of the plaint the petitioner had no notice of the same. On the contrary, the power-of-attorney and the sale-deed, as noted above, also did not specify any encumbrance or easement entitling the respondent/plaintiff to retain support for the iron girders placed on the wall of the house sold to the petitioner.
7. In the above circumstances, it is contended that the respondent/plaintiff, even as per contents of the plaint and the documents filed with it, was unable to establish a prima facie case and was, therefore, not entitled to the grant of an interim injunction. Learned counsel submits that the learned Courts below have committed error and have proceeded against the record by restraining the petitioner form demolishing the wall of his house'
8. Learned counsel for Mehmood Ahmad Khan (respondent/plaintiff) has not been able to controvert the above submissions. He has merely argued that in the agreement executed by the respondent/plaintiff in favour of ljaz Ahmad (respondent No. 2) some stipulation was made in respect of girders placed on the wall of the house purchased by the petitioner. On this basis, he argued the aforesaid girders and the structure raised thereon by the respondent/plaintiff resulted in an easement. This contention is misconceived because any agreement, between the respondent/plaintiff on the one hand and respondent No. 2 on the other, was a private matter between them. No notice of the contents of the said agreement can be imputed to the petitioner merely on the basis of such agreement .
9. Learned counsel for the respondent/plaintiff next argued that an encumbrance by way of an easement, was in existence whereby the respondent/plaintiff was entitled to the continuing support of the wall of the petitioner's house. This contention also has no merit because of the express wording of the sale-deed whereby the respondent/plaintiff, through his attorney (respondent No. 2), expressly conveyed the property to the petitioner free from any encumbrance.
10. In the above circumstances, it is clear that the learned Courts below fell in error. Considering the above circumstances, the respondent/plaintiff has not been able to establish a prima facie case.
His application under Order 39, Rules 1 & 2, CPC therefore, merited dismissal. This revision petition is therefore, allowed and the aforesaid application is dismissed.
11. Before parting with this judgment I need to observe, firstly, that any observation made in this order is of a tentative nature and shall not influence the trial of the case. Secondly, if the petitioner demolishes the wall in question and ultimately the respondent/plaintiff succeeds in his suit, the petitioner shall be obliged to provide such support to any structure proposed to be raised by the respondent/plaintiff, as may be determined by the learned Trial Court.
12. This petition is allowed subject to the above observation.
Civil accordingly.