NASIR SAEED SHEIKH, J. - This civil revision is directed against the judgment and decree dated 20.09.2003, passed by the learned Additional District Judge, Sialkot against the judgment and decree dated 31.07.1999, passed by the learned Civil Judge, Sialkot, whereby the suit instituted by the respondent for permanent injunction alongwith consequential relief was decreed in its favour.
2. Briefly stating the facts of the case are that the respondent instituted a suit for permanent and mandatory injunction before the learned Senior Civil Judge, Sialkot against the present petitioner on 08.02.1996. It was contended by the respondent that a plain vacant land, described in para 1 of the plaint, situated on the northern side of the Mosque of the plaintiff/respondent Anjumn-e- Islamia shown as A, B, C, D and F in red colour was an open place through which the respondent/plaintiff has been enjoying uninterrupted right -of passage for the previous- hundred years, in paragraph No. 5 of the plaint, it was contended that previously a civil suit dated 18.02.1961 was instituted before ' the Civil Judge, Sialkot, wherein uninterrupted easement rights of the plaintiff/respondent were accepted and established in the said suit in appeal through the judgment and decree dated 06.01.1962, passed by the learned Additional District Judge, Sialkot. It was contended that the respondent/ plaintiff has been enjoying this passage and right of easement as stated above and the defendant/petitioner has constructed a Khokha in the said open space and also started parking cycles and in this way the defendant/petitioner was obstructing the uninterrupted use of the said passage and easement of the respondent. A permanent . Injunction was sought restraining the defendant/petitioner from raising any further construction, parking cycle therein or blocking passage in any magnifier whatsoever. As a mandatory injunction, the prayer was made for removal of the constructed Khokha of the petitioner/defendant.
3. This suit was contested by the petitioner, who submitted a written-statement, it was contended that this is a frivolous suit, which has been instituted to cause embarrassment to the defendant, it was further contended that there was a dispute of possession and title between the parties and a simple suit for permanent and mandatory injunction -was not maintainable. The petitioner/defendant denied the easement rights of the respondent/plaintiff as claimed in the plaint, it was further alleged in the written- statement by the petitioner/defendant that the subject land was in the exclusive ownership with possession of the defendant/petitioner. Insofar as the previous litigation as asserted in para-5 of the plaint by the respondent/plaintiff is concerned, the defendant replied that the full particulars of the said litigation have not been given, therefore, the para-5 cannot be replied without the necessary details.
4. The learned Civil Judge entrusted with the suit framed the following issues:--- ISSUES.
(1) Whether the suit cannot proceed in its present form? OPD.
(2) Whether the plaintiff is entitled for decree as prayed for? OPP.
(3) Relief.
5. The parties produced their respective evidence. The .Learned Civil Judge recorded a detailed finding^ on Issue No. 2 and held that on account of the previous decision of the litigation, which was established through documentary evidence of Ex.P. 19, ' Ex.P.20, Ex.P.21, Ex.P.22 and Ex.P.23, uninterrupted right of easement was established in favour of the plaintiff, therefore, the plaintiff/respondent was entitled to the grant of decree as prayed for and resultantly the judgment and decree dated 31.07.1999 was passed in favour of the respondent/plaintiff.
6. The petitioner preferred an appeal against the judgment and decree of the learned Civil Judge, which came up for hearing before a learned Additional District Judge, Sialkot, who confirmed the finding recorded by the learned Civil Judge and dismissed the appeal of the petitioner through the judgment and decree dated 20.09.2003. Hence, this civil revision.
7. It is contended by the learned counsel for the petitioner that in paragraph No. 2 of the written- statement submitted by the petitioners, it was contended that the subject vacant land is owned and possessed by the petitioner/defendant, but no issue had, been framed by the learned Civil- Judge on this point. The learned counsel contends that the learned Additional District Judge in dismissing the appeal of the petitioners took note of this aspect in paragraph No. 8 of the impugned judgment and decree and observed that the learned Civil Judge has not even read the plaint, written-statement and the material placed before it at the time of framing the issues, it is contended that the petitioners did not produce evidence with respect to their ownership because only the right of easement was alleged by the respondent/plaintiff in the plaint, it is next contended that the learned Additional District Judge in paragraph No. 13 has observed that the right of passage of Anjuman-e-Islamia the plaintiff/respondent is already accepted in the judgment of the Appellate Court dated 06.01.1962 (Exh. D.1/Exh.P.22), but the learned Additional District Judge did not decide the matter in accordance with the said already rendered decision of the Civil Courts on the point, it js next contended that the respondent/plaintiff was just claiming the right of easement over the subject space and that they cannot compete with the right of ownership of the petitioners.
The learned counsel next contended that the judgment and decree passed in the present round of litigation was granted keeping in view the prayer clause and without properly appreciating and looking into the earlier judgment dated 06.01.1962, passed in the mater.
8. Nobody has appeared on behalf of the respondent despite service. Therefore, the respondent is proceeded ex parte.
9. I have Considered the arguments of the learned counsel for this petitioner and have perused the record.
10. The perusal of the judgment and decree passed by the learned Civil Judge dated 31.07.1999 transpires that on the basis of oral as well as documentary evidence, the learned Civil Judge held in paragraph No. 10 that the evidence on the record establishes the uninterrupted usage of the site as passage by the plaintiff/respondent, which was not only acknowledged and proved through the previous litigation, but was also confirmed through the evidence produced before the learned Trial Court.
11. The learned first Appellate Court upheld the said finding of the learned Civil Judge, by holding in paragraph No. 13 as follows:-- "13. Earlier Maqbool Hussain Shah filed a suit against Anjaman-e-lslamia, Sialkot. This suit was dismissed and an appeal was preferred by Maqbool Hussain Shah in the Court of learned District & Sessions Judge, Sialkot and his appeal was accepted by the Appellate Court vide Ex. D.1 order dated 6.1.1962. Whereby the rights of the parties were determined, in this judgment the right of the passage of Anjuman-e-Islamia was accepted, but it was observed that the whole plot cannot be usurped by Anjuman-e-Islamia in the absence of any objection from Maqbool Hussain Shah. Ex. P.8 is a map, which is prepared on the instruction of Anjuman-e-Islamia in suit titled Maqoob Hussain Shah v. Anjuman-e- Islamia, whereas, Ex.P.14 is a map in the same suit property submitted by Maqbool Hussain Shah. Ex.P.18 is also a map of the same property. Copy of Shajra Khasra is also annexed with Ex.P. 18, whereby this passage is shown. The accumulative of these documents has lead me to the conclusion that the right of passage of Anjuman-e-Islamia is accepted in the judgment of Appellate Court dated 6.1.1962 Ex. D.1. Although that litigation was between Maqbool Hussain Shah and Anjuman-e-Islamia. But the rights of the parties were settled in that litigation.
Ahmad Hussain defendant/appellant cannot transgress the rights determined in favour of Anjuman-e-Islamia. The order and judgment dated 31.7.1999 passed by Mr. Kamran Basharat Mufti, the then Civil Judge, Sialkot is perfectly in accordance with law. The judgment is maintained and appeal filed by Ahmed Hussain is dismissed".
12. The easement rights in favour of the respondent/plaintiff were established nor only through the judgment and decree of the Appellate Court dated 06.01.1962 (Ex. D.1), but the site plan (Ex.P.14), which was exhibited during the trial and the Aks Shajrah (Ex. P. 18) was also considered as a supportive piece of evidence by the learned Additional District Judge.
13. There is no force in the contentions of the learned counsel for the petitioner that the two Courts- below have not decided the suit in accordance with the previous judgment and decree of the learned Additional District Judge dated 06.01.1962 passed in the matter. Keeping in view the decision in the earlier litigation as well as the uninterrupted use of the passage in question by the respondent/plaintiff, the matter was decided by the two Courts below on the basis of the available evidence. The concurrent findings of facts have been recorded against the petitioner and no legal defect is found or pointed out in the said findings of facts recorded in the matter. The judgments and decrees passed by the two Courts below; are in accordance with law and are based upon evidence and no interference is called for. This civil revision has no merits and is dismissed with no orders as to costs. Civil revision petition dismissed.