' CH. MUHAMMAD TARIQ, J.---This civil revision has been directed against the judgment and decree dated 27-4-2000 passed by Mr.Safdar Hussain Malik learned Additional District Judge, Rawalpindi who dismissed the appeal and maintained the judgment and decree passed by Mr.Tahir Jamil Butt, Civil Judge, Rawalpindi.
2. Brief facts of the case as narrated in the plaint are that one Khawaj Bakhsh applied on C.H. Form for transfer of Shop No.I/323 on 15-7-1959 on the basis of his possession since 14-3-1950. It was allotted to him on 28-11-1959 by the Deputy Settlement Commissioner, Rawalpindi. P.T.D. Was issued in his favour on 2-8-1962. It was an independent unit and was allotted to him from earth to sky as it had no construction on the roof at the time of transfer. Khawaj Bakhsh sold this shop to Mst. Musharaf Jehan through registered sale-deed dated 30-1-1968. Mst. Musharaf Jehan further alienated it to the petitioner through registered sale-deed dated 16-7-1986 while respondent No.1 Shafiq-ul-Haq Sherazi claimed to be transferee of House No.I/322 and Shop No.I/320 and 1/321 which were separate units.
3. That roof of Shop No.I/323 had no construction when transfer of House No.I/322 was proposed in favour of respondent No.
1. Similar was the position of the roof at the time of allotment of Shops Nos.I/320 and 1/321 to respondent No.
1. The suit shop has an area of 23 feet x 13 and half feet. In the second week of July, 1986, respondent No.1 secretly constructed one room, a bath and opened two drainage on the roof of the suit shop damaging its walls. He also placed sui-gas pipe without the consent of the petitioner/plaintiff.
4. The petitioner/plaintiff filed a suit for possession of roof of the shop by demolishing and removing superstructure raised on it.
5. The suit was contested by respondent No.1 alone by filing written statement and took the plea that the petitioner/plaintiff has no locus standi to file the suit. The construction was raised by him according to the approved site plan of Municipal Corporation in the knowledge of the petitioner.
6. Out of the divergent pleadings of the parties following issues were framed:- ISSUES
(1) Whether the plaintiff has no cause of action or locus standi to bring the suit? OPD
(2) Whether the suit has not been properly valued for the purpose of court-fee, if so, what is the correct valuation? OPD
(3) Whether this suit is bad due to misjoinder of parties? OPD
(4) Whether the plaintiff is entitled to possession of the suit property as described in the head note of the plaint by demolition of super structure constructed there as shown in red colour with letters `EFGH' in the site plan attached with the plaint? OPP
(5) Relief.
7. After recording of oral as well as documentary evidence, the learned trial Court vide judgment and decree dated 17-12-1995 dismissed the suit.
8. The petitioner/plaintiff filed appeal which was also dismissed by Mr.Safdar Hussain Malik learned Additional District Judge, Rawalpindi on 27-4-2000, hence this civil revision.
9. The learned counsel for the petitioner contends that the judgments and decrees passed by the learned Courts below are result of misreading and non-reading of evidence. According to the documents placed on the file, House No.I/322 and Shops Nos.I/320, 1/321 and 1/323 were separate and independent portions which were separately assessed as evacuee properties and were disposed of as such by respondent No.3 under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958. He further contends that Shop No.I/323 was transferred to Khawaj Bakhsh, the predecessor-in-interest of petitioner on his C.S. Form dated 15-7-1959 and on the basis of allotted possession since 1-3-1950 while House No.I/322 without any portion of shop in dispute and Shops Nos.I/320 and 1/321 were transferred to respondent No.1 on his form on 25-6-1960 on the basis of allotted possession with effect from 1-12-1950 vide order dated 5-8-1960. The respondents have no title, right or concern whatsoever with the suit property and the petitioner is absolute owner of suit property on the basis of legal and genuine documents, therefore, civil revision be allowed, impugned judgments and decrees passed by the lower Courts be set aside and suit of the petitioner be decreed with costs throughout.
10. On the other hand, learned counsel for respondents have vehemently opposed the civil revision and have contended that the suit is badly barred by time. Respondents Nos.1 and 2 are lawful owners of the suit property who raised construction long ago after spending huge amount in the knowledge of the petitioner, therefore, civil revision be dismissed.
11. Arguments heard. Record perused
12. Learned counsel for the petitioner has advanced lengthy arguments and has pointed out a number of documents in support of his contentions. Learned counsel has put more emphasis on the point that respondents Nos.1 and 2 are owners to the extent of Property No.I/322 and have no concern whatsoever with other properties mentioned in the plaint. Learned counsel further contends that respondents Nos.1 and 2 were also served with legal notice dated 15-7-1986 requiring them to remove the construction from the suit property and handover its vacant and peaceful possession to the petitioner but on their denial, the petitioner/plaintiff was forced to file the instant suit. Perusal of record shows that allotment of properties which are situated adjacent to each other is not disputed. A mere question of possession of roof is concerned where respondents Nos.1 and 2 have raised construction. To resolve the controversy between the parties, Exh.D-3 is an important document. According to which, the Municipal Corporation, Rawalpindi sanctioned the building plan of the respondents Nos.1 and 2 on 11-3-1975 which is not denied by the opposite side, thereafter the respondents Nos.1 and 2 raised construction according to the approved plan over the suit property in the knowledge of the petitioner/plaintiff and started putting up there. Similarly respondents Nos.1 and 2 also applied for utility connections such as sui-gas connection, electricity and water connections which were accordingly installed in the property. Again in the year 1983, respondents Nos.1 and 2 raised second storey after approval of revised building plan from the Municipal Corporation, Rawalpindi and after completion of second storey, in the year 1988 the suit house was hired but during all this period, the petitioner/plaintiff remained mum and had been watching the affairs carried out by respondents Nos.1 and 2. During all this period, the petitioner has neither objected the sanctioning of original building plan or revised building plan before the concerned authority nor obtained any restraint order from a competent Court of law restraining respondents Nos.1 and 2 from making any development, raising any construction, or changing the nature of suit property which amounts an implied consent on behalf of the petitioner.
13. The building plan was sanctioned in the year 1975 and thereafter construction was completed.
The petitioner has filed the instant suit for recovery of possession on 29-6-1987 which is not proceedable because the petitioner/plaintiff is estopped by his conduct to file the instant suit. The respective properties were allotted to the parties during the decade of 1950 to 1960 but petitioner/plaintiff never bothered about the possession which he claims in the year 1987 in shape of instant suit after completion of construction by other party. Suit for possession is badly barred by time. Secondly the possession of suit property is disputed. In the circumstances simple suit for possession without seeking relief of declaration is otherwise not maintainable. There are also concurrent finding of facts against the petitioner.
14. As discussed above, the civil revision is without any substance, no interference is called for.
Order accordingly.