' Property No, P-230, Ward No, 5, Bhawana Bazar, Lyalipur (now Faisalabad), which was an evacuee property, consisted of a residential portion and some shops. Out of these shops one was transferred to the respondent Noor Ahmad, while the residential portion was transferred to one Fazal Din. Subsequently the said Fazal Din sold the residential portion to the petitioners, namely, Inayat Ullah and Muhammad Arshad. After acquiring ownership of the residential portion, the petitioners attempted to raise construction on the roof of the shop transferred to the respondent whereupon he filed a suit against the petitioners seeking declaration to the effect that he was owner in possession of the shop with vacant roof and that the petitioners had no right whatsoever to raise any construction over the roof and to interfere in his possession in any manner. By way of consequential relief he asked for a permanent injunction restraining the petitioners from doing the said acts.
2. The suit was resisted by the petitioners by contending that the roof of the said shop was a part of the residential portion transferred to their predecessor-in-interest, Fazal Din, and, therefore, they had every right to use the same. Their plea, however, did not find favour with the Civil Judge who had decided the suit as the conclusion reached by him was that the roof of the shop was not part of the residential portion. Resultantly, the suit was decreed by him. The judgment and decree passed by the learned trial Court were challenged by the petitioners by means of an appeal but without success. They have, therefore, come up in revision to this Court.
3. Learned counsel for the petitioners contended that while deciding the suit, learned Civil Judge had not taken into consideration copy of the order of Additional Settlement and Rehabilitation Commissioner, Exh. P. 5, report of the Local Commissioner appointed by him and, therefore, his judgment and decree suffered from a material irregularity.
4. In reply, it was submitted by learned counsel for the respondent that although no specific reference was made to the said document yet it was considered by the learned trial Court while deciding the suit. It was also maintained by him that in their memorandum of appeal filed before the appellate Court as also in the petition submitted in this Court the petitioners had not made any grievance regarding non-consideration of Exh. D. 5 and, therefore, it was obvious that according to them Exh. D. 5 was not a material document and its exclusion from consideration did not amount to a material irregularity. In addition, it was pointed out by him that even according to Exh. P. 5 the shop in dispute was an independent and distinct unit. As regards the report of the Local Commissioner, the plea raised by him was that the said report was obtained by the learned trial Court for the purpose of deciding the application for grant of temporary injunction and since it had nothing to do with the final decision of the case, the learned trial Court was justified in not taking it into account while disposing of the main case.
5. The portion of the order of the Additional Settlement and Rehabilitation Commissioner, as embodied in the copy of his order Exh. P. 5, which was relied upon by learned counsel for the petitioners, reads as follows :- "I have inspected the spot, heard the parties, at length and have also gone through the relevant record of the case. The property in dispute comprises of 3-4 shops on the "Bhawana Bazar" side and lane side with a residential portion on top and at the back of it."
' It was in view of the words "on top" appearing in the aforesaid extract from the order of the Additional Settlement and Rehabilitation Commissioner that it was urged by learned counsel for the petitioners that the roof of the disputed shop was also a part of the residential portion.
6. I am afraid that the said two words cannot be taken into consideration in isolation. In his order which follows the portion relied upo by learned counsel for the petitioners, the Additional Settlement and Rehabilitation Commissioner had given clear indication of the fact that the residential portion comprised of upper and lower storeys and these tows storeys were independent and separate units. By making this observation, he wanted to convey that the upper storey of the residential portion was the one which was just above the lower storey of that portion. In other words, the residential portion had to go up vertically in straight line an could not be stretched so as to include the roof of the adjacent shop on the ground floor. In the copy of the order of the Deputy Settlement Commissioner Exh. D. 6, by which the residential portion and the shops wet transferred, the residential portion was dealt with separately and no together with any shop. It is also to be noted that the dispute before the Additional Settlement and Rehabilitation Commissioner was not in regard to the petitioners' claim that the roof of the disputed shop was a part the residential portion. Therefore, the use of the words "on top" by hi have little bearing on the question involved in the present case. The respondent had produced overwhelming evidence to show that the roof o his shop was not a part of the residential portion. Therefore, looking at the entire evidence on the record including copy of the order of the Additional Settlement and Rehabilitation Commissioner, Exh. D. 5, the concurrent findings of the two Courts below that the roof of the respondent's shop is not included in the residential portion purchased by the petitioner is not open to any legitimate exceptions.
7. Now, I take up the report of the Local Commissioner. Admittedly, the said report was obtained by the learned trial Court for the purpose of deciding the respondent's application for grant of temporary injunction. This was done before the framing of issues. Objections were not invited in regard to the said report nor the parties were allowed any opportunity to produce evidence for or against the report. The said report could not, therefore, he considered for the purpose of deciding the suit in the light of the issues framed therein and the evidence produced by the parties on those issues. There is thus no merit in the arguments of the learned counsel for the petitioners that the learned trial Court had committed a material irregularity by overlooking the report of the Local Commissioner.
8. In result, this civil revision fails. It is, therefore, dismissed with costs.