JUDGMENT IJAZ AHMAD, J.---Respondents Nos.1 to 9 instituted a suit for declaration and permanent injunction. The petitioner instituted a suit for permanent injunction in respect of the same property.
Both the suits were consolidated. The parties led evidence. The suit instituted by respondents Nos.1 to 9 was decreed while that of the petitioner was dismissed through a consolidated judgment and separate decrees dated 10-7-1997, passed by the learned Civil Judge, Rawalpindi. The appeal preferred by the petitioner was dismissed vide decree dated 26-9-2001, passed by the learned Additional District Judge, Rawalpindi.
2. The property bearing No.G/635, D.A.V. College Road, Rawalpindi, a house situated on the first floor; 0/635/A, G/635/B, G/635/C and G/635/D, garages situated on the ground floor and the Shops bearing Nos. G/639, G/640, G/641, G/642, G/643, G/644 facing D.A.V. College Road, were owned by one Ram Narain, an evacuee. All the properties are the units of a composite building. Out of said properties, the Property bearing No.G/635 comprising a house and G/635/A and G/635/B comprising of garages were transferred to Abdul Rasheed and Muhammad Shabbir sons of Rahim Bakhsh., The PTOs were issued in the years 1961 and 1979. The Shops bearing Nos.G/640 and G/642 were transferred to one Abdul Ghafoor Bhopal, father of respondents Nos.2 to 9, on 5-7-1963. Shop No.G/641 was transferred on 28-11-1963 to one Abid Hussain, father of respondent No. 1. The rooms comprising House number G/635 are built over Shop No.G/639. The transferees of House No.G/635, G/635/A and G/635/B mutually divided the properties. The half portion of the first floor of House No.C.3/635 was owned and possessed by Abdul Rasheed whereas the other consisting of one room, kitchen and toilet fell to the share of Muhammad Shabbir. Ro of-tops of all the shops were being used by the possessors of G/635, as the courtyard. Mst. Khursheed Bibi, were of Haji Muhammad Ramzan, an owner of Shop No.G/644, moved an application to the Settlement Department for demarcation of the roof of Shop No.G/644 claiming the roof-top to be a part of her shop underneath. The D.S. & R.C. Cantonment Area, Rawalpindi, vide order dated 7-1-1964, held that the rooftops of Shops No.G/642 to G/64 were Being used as a courtyard by the owners and House No.G/635, are the part and parcel of the house. The appeal preferred by Mst. Khursheed Bibi was dismissed by learned A.S.C; Rawalpindi, vide order dated 29-2-1964. Muhammad Shabbir, one of the owners of House No.G/635, transferred half portion of the same to the petitioner through a registered sale-deed, dated 23-10-1991. The petitioner submitted site plan to the Municipal Corporation, Rawalpindi for raising a construction over his courtyard that was roof-top of the shops. The approval yet awaited, the parties resorted to above said litigation in the civil court.
3. It is contended by the learned counsel for the petitioner that the civil court had no jurisdiction to entertain and decide the matter relating to the title of the property that had accrued to a party in consequence of an order passed by the Settlement Authorities under the Displaced Persons (Compensation, and Rehabilitation) Act, 1958, after the passing of the Evacuee Property and Displaced Persons Laws (Repeal) Act XVI, 1975. Places reliance on PLD 2003 Lahore 441 titled Muhammad Din and 8 others v. Province of the Punjab through Collector and others, 2010 SCMR 687 titled it. Col. (R) Hamid Tarique Hanif and others v. Muhammad Shahid and others, 2008 SCMR 491 titled Mirza Inayat Baig represented by Muhammad Aslam Baig and others v. Muhammad Younus, and 2004 SCMR 1786 titled Mst. Zinab v. Mst. Muni, and others. It is further contended by the learned counsel for the petitioner that after the remand of the case through an order dated 27-3- 2001, passed by this Court, in Civil Revision No.129-D of 2001 wherein the learned Additional District Judge, Rawalpindi was directed to appoint the Deputy Director (Architecture) of the Municipal Committee, Rawalpindi, as a Local Commission to inspect the site and to ascertain his views whether the rooftops were courtyard of the house. Although the report was prepared yet the same was. Liable to be set aside, as the same was in violation of the direction made by this Court. The Local Commission had not prepared the site plan of the shops and the house in question; that the learned appellate court has illegally relied upon the report of the Local Commission wherein he has opined that the roof-tops are not part and parcel of House No.G/635, as the transfer documents of the shops indicated that the shops were the independent units. The Local Commission had not prepared the notes after the spot inspection, therefore, the report is devoid of value and sanctity.
Places reliance on 1993 MLD 338 titled Mst. Asia Begum v. Nehmat Ali and 6 others and 2001 CLC 795, titled Abdul Faheem and 5 others v. Pir Muhammad. He also seeks support from the judgments reported as PLO 1980 Karachi 99 titled Muhammad Ramzan and 2 others v. Abdul Ghani and 4 others, 1982 SCMR 4 titled Habibullah v. Settlement Commissioner and others and PLD 1973 SC 439 titled Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others to argue that in case of a composite building, the extension of the right of ownership in the vertical direction is not an absolute criterion and other factors like the possession and the contiguity should also be taken into consideration. The ownership and the right to make use of a space could also extend in horizontal direction. He submits that the suit of the respondents No.1 to 9 was not maintainable under section 42 of the Specific Relief Act, 1877, as they had not prayed for possession; that the learned courts below have misread the evidence of P.W.1/Abdul Khaliq, Special Attorney for respondents Nos.1 and 2, P.W.2, Ashiq Hussain, the respondent No.1 plaintiff and Shah Nawaz, D.W.1 defendant. The referred evidence shows that the roof-tops of the shops are in fact the courtyard and an integral part of House No. G/635.
4. On the other hand, the learned counsel appearing on behalf of respondents Nos.1 to 9 contends that the shops belonging to respondents are independent units and their roof-tops are not in any way part of the Property No.G/635; that the roof-tops belong to the owners of the properties underneath who have an exclusive and absolute right to its infinite vertical use. Places reliance on 1981 SCMR 829 titled Nazir and others v. Syed Israr Ahmad and others and 2008 SCMR 491 titled Muhammad Aslam Baig and others v. Muhammad Yunus. He argues that even if the roof-top of a property is allowed to be used as a courtyard by the owner of the contiguous property, the same cannot be taken to have matured into the ownership of the user. Places reliance on 1998 MLD 53 titled Saeed Ahmad, and others v. Mst. Khatoon Begum and others and" titled Fazal Muhammad and 6 others v. Member, Board of Revenue and 10 others. He further argues that even if the PTO makes no mention regarding the ownership of the roof, it will be deemed to be a part of the underneath property. The learned counsel lastly argues that the court, under Order VII, Rule 7, C.P.C.
May award such relief, as it thinks fit in the circumstances of the case, though not claimed in the plaint. Places reliance on 1986 MLD 2915 (Lahore) titled Wajid All v. Muhammad Hussain and others, 1991 MLD 2178 (AJ&K) titled Fazal-ur-Rehman v. Muhammad Ilyas and 2 others and 1985 SCMR 241 titled Haji Ibrahim v. S. Rehmatullah (represented by Legal heirs).
5. I have heard learned counsel for the parties and also perused the record.
6. The basic questions that need be resolved are the ownership and the right to make use of the roof-tops of Shops No.G/640 to G/644. Respondents Nos.1 to 9, being owners of the shops underneath; claim their right to infinite vertical void as the general rule of division of property is. The petitioner having been making use of the roof-tops as a courtyard and as a part of her House No.G/635 claims an unobstructed right to use the same as courtyard and the right to raise further construction upwards on it.
7. The various factors necessary to determine the extent of ownership in the case of a composite building would be:-- The language of transfer-deed and if it is not clear or it is ambiguous then:
(ii) The propriety of extension in vertical or horizontal direction; (i.e) The principle of indispensability;
(iv) The principle of contiguity and continuity and
(v) Lastly, the possession of the parties.
I don't see any misreading or non-reading of evidence by both the courts below. The arguments advanced on this point by the learned counsel for the petitioner have no force. As far jurisdiction of the learned B civil court is concerned, the stance taken the learned counsel for the petitioner loses its force for two reasons: the petitioner not only acquiesced to the jurisdiction of the civil court by filing the written statement but also herself instituted a suit for permanent injunction. Having failed in the suit and in the appeal, she cannot be allowed to challenge the jurisdiction of the civil court.
Moreover, the respondents have not challenged any order passed by the Settlement and Rehabilitation Authorities. They have only sought the declaration of their exclusive right of ownership of their roof tops. The civil court is not debarred by law to adjudicate upon the matter.
The law referred by the learned counsel for the petitioner reported as PLD 2003 Lahore 441 titled Muhammad Din and 8 others v. Province of the Punjab through Collector and others, 2010 SCMR 687 titled it Col. (R) Hamid Tarique Hanif and others v. Muhammad Shahid and others, 2008 SCMR 491 titled Mirza. Inayat Baig v. Muhammad Younus and 2004 SCMR 1786 titled Mst. Zinab v. Mst. Muni and others is not applicable to the instant case.
8. As far non-maintainability of the suit for declaration in view of section 42 of the Specific Relief Act, 1877, relief by way of possession is concerned, the court under Order VII Rule 7, C.P.C. Is empowered to grant such relief, as the circumstances of the case may require. Moreover, in the circumstances of this case, the respondents Nos.1 to 9 cannot be said to be out of possession of the roof-tops. Any person making the use of the ceiling of a shop will be deemed to be in possession of its rooftop as both are the leaves of a page. The mode of possession in all the circumstances is not the same. In some circumstances, the daily use of a place would express its possession and in others, mere possession of underneath property would suffice to signify the possession of the other side which is the instant case. Even if the petitioner was making use of the roof-top, she cannot claim the ownership or the right to use the same for raising further construction over it. The judgments relied upon by the learned counsel for the respondents reported as 1998 MLD 53 (Peshawar) titled Saeed Ahmad and others v. Mst. Khatoon Begum and others, 1984 CLC 1004 (Lahore) Haji Faqir All v. Siraj Din and another and 1980 CLC 1370 titled Fazal Muhammad and 6 others v. Member, Board of Revenue and 10 others are fully applicable in the circumstances of this case. The other factors to determine the extension of the right of ownership and the right to make further use of the roof-top is supported by the PTD, Exh.P.2, Exh.P.3 and Exh.P.4, which show that the shops have been transferred as independent units in favour of the allottees.
The transfer documents support the case of the respondents. The division of the property and the extension of the property in general circumstances are in vertical directions downwards and upwards till infinite void. The special circumstances which could justify the horizontal division are not available in the instant case. The roof-top is neither indispensable for the proper use of the house in question owned by the petitioner nor is subservient to property of petitioner's house. Under the principle of continuity, the right of ownership of a shop underneath the roof-top continues above the roof to an infinity. All the factors that could determine the right of the ownership of the parties on the roof-tops lead me to the conclusion that respondents Nos.1 to 9 have an exclusive right to the ownership of the roof-tops of their shops to a vertical infinity. The petitioner has no right to make use of roof-tops of the respondents on the principle of contiguity. I seek support from 1981 SCMR 829 titled Nazir and others v. Syed Israr Ahmad and others and 1984 CLC 1004 titled Haji Faqir Ali v. Siraj Din and another. The courts below have not incurred any illegality or irregularity while passing the impugned judgments and the decrees. This petition is dismissed..