' MAULVI ANWARUL HAQ, J.---On 16-6-1994 the petitioners filed a suit against the respondent. In the plaint, it was stated that the petitioner No,1 and his brother Masood Javed are owners of a shop, described in para. 1 of the plaint vide gift deed registered on 3-3-1985. It was then stated that the shop was allotted to their grand-mother and then was inherited by the father and uncle of the petitioner No,1 and that the inherited portion was gifted by the father to the petitioner No,1 and his brother Masood Javed while petitioner No,2 is an owner vide sale-deed dated 8-11-1986 and his brother Zaheer Ahmad is in possession of that portion of the shop. Regarding the respondent it was stated that he is residing over the said property owned by the petitioner No,1 and some other neighbours, he has constructed residential flat but he is using the roofs of the properties owned by the petitioners as a courtyard. A few days ago, the respondent started repair and maintenance work and told the petitioners that he was going to place a lintel over the roof of the said shop.
However, the petitioners did not agree as they had already placed a lintel on the shop. However, the respondent is going to demolish the roof of the shop. It was then stated that since they are businessm en and would suffer irreparable loss they filed suits for permanent injunction, which were disposed of on 11-5-1994 in view of the statement of the respondent to the effect that he will not dismantle the roof of the shop owned by the petitioners and will raise the construction only on the previously constructed walls. Then this was objected to. The prayer made was that it be declared that the petitioners are the owners in possession of the walls and roofs of the shop and the respondent has no interest herein and he be restrained from raising any construction over the walls and the roof.
2. The respondent in his written statement took the plea that he is the lawful transferee of the entire upper flour Property No,38-R-191 vide T.O. Dated 6-6-1979 and this includes the roof of the petitioners' shop. It was also denied that the roofs of the shops were open to sky. He explained that a notice was served upon him by the Municipal Corporation, Lahore, to get the upper storey repaired otherwise it will be demolished. Consequently, some portion of the structures were demolished and when this was done the petitioners filed suit. He categorically stated that he has no intention of demolishing any portions of the shops. Issues were framed. Evidence of the parties was recorded. The learned trial court decreed the suit on 31-7-1995. A first appeal filed by the respondent was allowed by a learned A.D.J., Lahore, on 20-7-2002.
3. I may note here that another shop owner, namely, Nizam-udDin, had also filed a suit for similar relief. However, his suit was dismissed by the learned trial court on the same date. He also filed an appeal and both the appeals were heard together by the learned ADJ. The appeal of Nizam-ud- Din was dismissed and I am told by all present that he has not further challenged the judgment.
4. Learned counsel for the petitioners contends with references to the cases of Nazir and others v.
Syed Israr Ahmad and others (1981 SCM R 829), Muhammad Rafiq v. Malik Sikandar and others (1994 CLC 2300) and Mst. Khairun Nisa through General Attorney v. Abdul Wahid (1998 SCM R 492) that as per terms of the PTD, the shop was transferred to his clients 100% and since there is nothing to the contrary it shall be deemed that it was transferred from the ground to the sky. He also takes exception to the permission granted by the learned appellate Court to the respondent to lead additional evidence in the course of appeal. According to him, the evidence on record has been misread by the learned ADJ while passing the impugned judgment. Further contends that the respondent had, in fact, withdrawn his Form filed by him for transfer and as such cannot claim any right in the upper storey of the building. Learned counsel for the respondent, on the other hand, explains that his client as well as Ghulam Abbas had separately filed Forms for transfer of the upper portion of the said building. The respondent did withdraw the Form but the Form of Ghulam Abbas was processed and ultimately the property was transferred to him. He entered into an association deed with Ghulam Abbas, which was approved and ultimately the upper storey was transferred to the respondent. The transfer was made under Settlement Scheme No,8 on the basis of possession and that this client is continuing in possession since 1947. The petitioners have never used any part of the upper storey for which the respondent has an independent staircase. He relies on the cases of Ch. Bahar Muhammad v. Chief Settlement and Rehabilitation Commissioner, Lahore and another (1977 SCM R 189) and Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others (PLD 1973 SC 439) to urge that it was within the competence of the Settlement Authorities to effect a horizontal partition of the property. According to him, the learned ADJ acted within his domain while allowing the respondent to lead additional evidence and the petitioners also led evidence in rebuttal.
5. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. The material contents of the pleadings have already been reproduced above. The PTD issued in favour of Mst. Kubra Begum the grandmother of the petitioners is Exh. P.1. It bears the date of final payment as 23-5-1963 and bears the legend that shop No,S-38-R-191, Circular Road, Lahore, finally transferred to Mst. Kubra Begum widow of Allah Din. The reference by the learned counsel to 100% is, in fact, the interest of the evacuee in the said property. It has been noted against the description that it is a subunit of shop. The sale-deed Exh.P.2 narrates that Abdul Rashid son of Sh.
Allah Ditta is transferring the Eastern one half portion of shop No,S-38-R-191/4 to Shahid Kamal petitioner No,2 while gift deed Exh.P.3 narrates that Habib Ahmad son of Allah Ditta is gifting away the Eastern half of the shop to his sons Mahmood Javed (petitioner No,1) and Masood Javed.
Exh.R.2 is the Form filed under the revised Settlement Scheme No,8 (house) for the transfer of House No,S-38-R-191 by Ghulam Abbas wherein he claimed to be in possession since 1947. This Form is dated 10-10-1973 and against column No,8 it is mentioned that Ijaz Ali Shah is also in possession.
The Form filed by the respondent is Exh. R.3. Ex.A.I is the order dated 27-4-1976 of the D.S.C., Farid Kot House, Lahore. There is reference to earlier proceedings and orders passed by various Settlement Officers and Authorities. It was found that Ghulam Abbas is a J&K refugee and is in possession and is prepared to pay the price and the residential portion of the said property was transferred to Ghulam Abbas while it was noted that Ijaz Ali Shah has withdrawn his Form, which is rejected. The matter was processed vide Exh.A.2 which reads that Ghulam Abbas died and his widow and sister have been appointed as heirs and have entered into an agreement of association with the respondent. Initially it was for surrendering of half the property but later the said heirs have reported that they are unable to pay the price and have surrendered the entire property. The deed of association is Ex.A.3 whereupon the statements of the said heirs were recorded and it was approved. Transfer Order Exh.D.8 was issued in favour of the respondent. It narrates that residential portion of S-38-R-191, Circular Road, Lahore, has been transferred to the respondent.
6. A Local Commissioner was also appointed who inspected the site and filed his report on 21-2- 1995. He also prepared a site plan of the property. The Local Commissioner was examined as D.W.2.
He has reported that the entrance to the disputed property is from Pan Gali, Anarkali, which is a staircase leading to the first floor. According to this report, the roof of the top floor is linteled which covered 2/3rd of the first flour. It is supported by pillars as also the walls on Eastern and Western sides and similarly on the North and South are walls 2/3 feet in height. According to his examination, the wall on the East side is old and has a hole on the centre top for ceiling support which does give the impression that it is the remains of a room that existed previously. He also referred to the statements of witnesses recorded by him. On the South-West corner is a bathroom and adjacent is the staircase coming up from the ground floor. According to the plan, the shop of the petitioners is towards Pan Gali. The staircase leads from the Eastern end of the building and goes to the first floor. There is no denial of the fact that the respondent or the said Ghulam Abbas had been in possession since the year 1947.
7. Having, thus, examined the records, I do find that Building No,S-38-R-191 is a composite building facing Circular Road as well as Pan Gali. In the entire ground floor there are shops either facing Circular Road or Pan Gali and upper fluor is residential. The said upper floor stands ultimately transferred to the respondent while the shops in the ground floor had been individually transferred to several persons including the predecessor-in-interest of the petitioners. The position existing on the spot stands depicted in the said report of the Local Commissioner. Whereas it stands admitted in the plaint itself that the respondent is in occupation of the said first floor, it has not even been alleged that the petitioners have ever used the roof of the shop. There is no approach whatsoever to the upper floor from the said shop which is sandwiched in between two other shops. The approach to the upper floor is through a staircase leading from the eastern corner of the ground floor and is in the exclusive user of the respondent.
8. In the light of the said facts established on record, the judgment in the said case of Ch. Bahar Muhammad in the light of the facts and circumstances of the said case is squarely attracted in support of the respondent while the judgment in the said case of Muhammad. Yaqub does lay down that the Settlement Authorities are fully competent to effect partition of an evacuee property horizontally.
9. So far as the objection to the admission of additional evidence is concerned, the learned ADJ granted the said permission by means of a well reasoned order dated 23-5-2002. According to him, all the documents sought to be produced are certified copies of public record and are required for an effective adjudication of the matter. The petitioners were given a chance to rebut. I, therefore, find that no grounds exist for interfering with the said order in exercise of revisional jurisdiction.
10. For all that has been discussed above, the civil revision is dismissed but without any orders as to costs.