1. ' G. SAFDAR SHAH, J.-The background in which this petition has come up to this Court against the judgment of the Peshawar High Court, dated 14th March 1978, is as follows :- ' The parties herein have been litigating with each other over the use of the roof of a shop bearing No, C. A. 334/918/01-2 and on the back of which is situated the house of the petitioners bearing No, C. A. 334/G. 6/ P. 1-2. Both the properties are said to be situated on Tipu Sultan Road, Peshawar Cantonment. The main reason for which the respondent No, 1 herein was driven to institute a civil suit against the petitioners. In one of the Courts at Peshawar was that he intended to repair the proof of his said shop as well as raise on it further construction to which, however, the petitioners raised objection. The precise objection raised by the petitioners in their written statement was that on the roof of the shop of respondent No, 1 they had constructed a kotha and further that the roof in question had been used by them as passage for the enjoyment of the upper storey of their house since the last twenty years and which right of them had matured due to prescription. Upon the pleadings of the parties the trial Court framed in the proceedings six issues, the reproduction of which however, is not necessary, as the only issue with which we are concerned is issue No, 5, which is to the following effect :- "5. Whether the plaintiff is entitled to the grant of a decree for perpetual injunction against the, defendants as asked for ?"
2. ' Upon this issue, the parties led their respective evidence and thereafter the learned trial Judge decreed the suit of the petitioners. The First Appeal filed by respondent No, 1 before the District Judge, Peshawar, having failed he went to the High Court in its revisional jurisdiction which was allowed by a learned Single Judge of the Peshawar High Court, vide his judgment dated 14th March, 1978.
3. ' Mr. Karimullah Khan Durrani, the learned counsel for the petitioners has made grievance of the fact that the learned Judge in the High Court had no jurisdiction under section 115, C. P. C. To set aside the concurrent finding recorded in his favour by the two Courts below. We are afraid, there is no force in this contention. It is true that the trial Court as well as the Court of the learned District Judge both had non-suited the respondent. But the learned Judge in the High Court, after having gone through the record of the case and all the evidence, disagreed with the said finding and recorded the following conclusion :- "That this `barsat' extended over the adjoining shop is not evident from either Survey Register or the first transfer deed by Muhammad Ibrahim in favour of kst. Karma Wali. In a latter deed, by Mst.
4. Karma Wali in favour of the respondents, a mention is made that `barsat' extends over roof of the shop and that the right of use is also sold alongwith the house.
(7) It is abundantly clear from the deed in favour of Mst. Karma Wali that such a right was not transferred. It is not proved, how it accrued. Survey Register on which reliance is placed (Exh. D. W.
5. 1/2) mentions `barsat' but on the roof, which can only mean that it is on the upper part of the building being transferred.
6. ' Having noted these facts, the learned Judge proceeded to observe "Shop is in the main bazar.
7. There is no superstructure on first floor of this shop. House is on the back side. Even if the only way to the roof is through the house of the respondents, it cannot be denied that such an approach can be constructed. Independent units, any way could not be divided horizontally because there was no question of division at all. The contention of respondents' counsel that Survey Register Exh. D.W.
8. 1/3 does not disclose transfer of first floor ignores the factual position. There was no first floor on the shop. There is only one shop with roof and want of mention of first floor does not in any way help his case".
9. ' The learned counsel for the petitioners has not questioned the correct-ness of the above facts noted by the learned Judge in the High Court. In fact he did not even press his case on the point, and of which specific mention had been made in the written statement filed by his clients in the Court of the learned trial Judge, that on the roof the shop of respondent No, 1 they (petitioners) had constructed a kotha about twenty years ago. The only point on which he pressed his case was that a part of 'barsat', which extended from the upper portion of the house over the roof of the shop of respondent No, 1, gave them a right of easement so as to prevent the respondent from constructing any structures on the roof of the said shop. We are afraid, there is no force in this contention. In the first place the learned counsel has not been able to show us any law as to how upon these facts can the right of an easement be claimed, and in the second place the said right did not find any mention in the settlement record, through which the learned Judge in the High Court seems to have gone through with care nor indeed in any other transfer deed (as the house of the petitioners seems to have changed hands on several occasions) except in the sale-deed executed in his favour by Mst. Karma Wali respecting whose claim, however, the learned Judge rightly felt dissatisfied and rejected the same. It is in the judgment of the High Court that the house of the petitioners, after having changed quite a few hands was sold to one Mohammad Ibrahim by the last owner through a registered deed who in turn sold it to Mst. Karma Wali. In the deed executed by Mohammad Ibrahim in favour of Mst. Karma Wali also no mention was made of the fact that the `barsat' of the petitioners extended over the roof of the respondent. And hence the finding recorded on that point by the learned Judge in the High Court seems to be unexceptionable.
10. ' In the Courts below, as well as in the High Court the case of the petitioners also proceeded on the basis of their claim that they had used the roof the shop of the respondent as a passage for the use of the upper portion of their house for the last twenty years. But before us the learned counsel did not urge any such contention. Be that as it may, we are in respectful agreement with the finding recorded by the learned Judge in the High Court in that behalf that even if the said right had been enjoyed for twenty years, it could not come in the way of the respondent to repair the roof of his shop or to construct more structures thereupon if he so desired.
11. ' From all this discussion, we are, therefore, satisfied that the judgment of the High Court is unexceptionable. This petition, therefore, fails and is dismissed.