1. MUHAMMAD SHAFI SIDDIQUI, J.---This revision application is arising out of impugned order dated 10-9-2008 whereby the appeal of the applicant was dismissed and the judgment and decree dated 20-2-2006 and 21-2-2006 respectively passed by the Trial Court were maintained in terms of the impugned order.
2. Precisely the facts of the case are that respondent No,1 filed Suit for Declaration and Permanent Injunction before the IVth Senior Civil Judge Hyderabad with following relief:-
(a) That the very provisional allotment dated 30-1-1987 and sketch thereto is illegal, void ab initio.
3. Malicious and not binding on the plaintiff and application for reconsideration filed by Muhammad Issa Abbasi may be deemed to be infructuous bad in law and malicious.
(b) It may be declared that plaintiff has got personal rights, right of amenity easement of western air and muhag in the said piece of land bordering with western of plot on plaintiff and land is sold, be sold to the plaintiff.
(c) That mandatory injunction is issued against defendant No,1 Muhammad Issa to demolish the entire construction made illegally on the alleged provisional allotment of land not to interfere in the right of amenity of the plaintiff.
(d) That the cost of the suit be borne by the defendants.
(e) To grant any other relief as deemed fit and proper by this honourable Court.
4. Against this the appellant along with other defendants filed their respective written statements.
5. It is the case of the applicant that the suit of the plaintiff should have been dismissed as the learned Trial Court pursuant to the issue No,4 has declined the easementary rights to the respondent No, 1/plaintiff and as such since the plaintifffailed to establish their rights in respect of the plot in question therefore suit ought to have been. Dismissed and the learned Judge should not have commented and gone further with regard to the status of the property in question as to whether it is a bhada land/government land_ and that further observations are uncalled for. It is further contended by learned counsel for the applicant that the suit was barred under section 91 of C.P.C. As well as under section 42 of Specific Relief Act and under sections 54, 70 and 70-A of the Co-operative Societies Act. Learned, counsel submits that since the subject plot was allotted by the Chairman of Society though it was cancelled by the competent authority of the society but it touches the business of the society therefore, the suit was barred under the provisions of Co- operative Societies Act and also that since respondent No,1/plaintiff has claimed Public Nuisance therefore. Permission ought to have been obtained by the respondent No,1 from the concerned Authority/ Advocate General. It is further claimed that since under section 42 of the Specific Relief Act plaintiff failed to establish rights in, respect of the property in question therefore, suit of the respondent No,l/plaintiff ought to have been dismissed on this score alone.
6. On the other hand Mr. Ghulam Qadir. H. Siyal advocate for respondent No,6 submits that the Chairman ,of the Society had no authority to issue any provisional or confirm allotment order and that too for a land which belongs to government where road has been carved out and as such the act of the Chairman whereby the allotment was made was illegal void ab-initio as if he never issued any provisional allotment. He further submits that in fact it is a common road in between two societies i,e, Employees Cooperative Society and Muslim Co-operative Society and as such there is no question of allotment of this land and does not constitute the business of society.
7. Mr. M. Yousif Leghari, learned counsel for respondent No,1/plaintiff in reply to the arguments of learned counsel for applicant submits that in terms of sections 54, 70 and 70-A of the Co-operative Societies Act the business of the society means any business which could lawfully be done by the competent authority of the society. He further submits that any act of the society which does not cover their business is not the act done under the law and as such grievance in respect of those acts could be agitated through/by filing suit which cannot be deemed to be barred under the said provision of law as it does not touches the business of the society. Learned counsel further submits that respondent No, l/plainfiff filed suit for Declaration and permanent Injunction in respect of their easmentory rights which was being affected and infringed by unlawful occupation and encroachment of adjacent land of respondents plot by applicant, of course by an unlawful allotment by the chairman of the society for which he never possessed such powers and as such this is not a case which is affected by section 91, C.P.C. As the grievance of the respondent No,1 pertains to his rights arising out of his land with regard to the easement. In support of his contentions he relied upon the cases reported as:--
(1) Pakistan National Oils Ltd. And another v. Sattar Muhammad (1980 SCMR 686).
(2) Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board, Karachi and 4 others (PLD 2003 Karachi 495).
(3) Mst. Seema and others v. Messrs Millennium Developers and others (2003 CLC 632).
(4) Islamuddin and others v. Ghulam Muhammad and others (PLD 2004 Supreme Court 633).
(5) Ghulam Muhammad and others v. Murad Bakhsh and another (PLD 1969 Lahore 95).
(6) Fazlur Rehman v. Younus Ali Gilani and 9 others (1999 MLD 1565).
(7) Mst. Naz Shaukat Khan and 3 others v. MRs, Yasmin R. Minhas and another (1992 CLC 2540 Rooh ul Qadoos v. Muhammad Rafique and 2 others (2002 CLC 379).
(8) Muhammad Hussain v. Faiz Bakhsh and another (2001 CLC 1203).
8. Mr.A.B. Soomro learned Addl.A.G. Subtnits that the suit filed by respondent No,1 was not maintainable and it ought to have been dismissed by the Trial Court. On query he submits that though they are aggrieved of the order passed by the Trial Court however they did not file any appeal in respect of the judgment and decree passed by the Trial Court and so also by the Appellate court.
9. I have heard the learned counsel and perused the record.
10. It appears from the bare reading of the plaint that respondent No, I was aggrieved of the alleged allotment of the land, adjacent to the society's plot more particularly Plots Nos. 65 and 74 which belongs to applicant and respondent No,1 respectively. In para-4 of the plaint the boundaries of Plot No, 65 which is allegedly owned by the applicant was proposed to have been bounded as under:-- North 40 wide road South Plot No. 62 East Plot No. 66 West Boundary line of the society and a recognized public road.
11. Against this the applicant filed written statement and admitted the above contents of paras. Nos. 1 to 4 with further reply that they have not furnished the site plan. Thus at the very outset the issue of plot being bounded by public road on the western side is not denied. It is concurrently held by the Trial Court as well as Appellate Court that this strip of 300 sq.Yds which is adjacent to the plots .Of applicant and respondent No,1 was being maintained as pathway being bhada or government land. The submissions of learned counsel for applicant that the wall was being erected on account of security reasons is of no help to the applicant as the said wall could not be erected on the public road/government land. If any safety is to be ensured by the society or applicant it ought to have been erected on their own land and the encroachment of additional land under the garb of security is of no help to the applicant. The contention of learned counsel for the applicant that the suit in respect of public nuisance could not have been filed without permission of the Advocate General is also not applicable as the applicant has filed the suit in respect of his rights of easement which he claimed pursuant to his plot bearing No, 74 situated in Muslim Cooperative Housing Society and hence from the face of it the provisions of section 91, C.P.C. Are not applied. If any reference is required PLD 2004 SC 633 can be looked into. Relevant passage touching the subject issue is reproduced as under:-- "We have heard partiescounsel and have also gone through the available record thoroughly. It is to be noted that before initiating legal proceedings the respondents/plaintiffs sought permission from Advocate-General of the Province as required under section 91, C.P.C. To institute a suit. This provision of law envisages that either the Advocate General can himself file a suit or he can consent in writing for, institution of a suit on the application of two or more persons. It is to be noted that satisfaction of the Advocate-General to give consent for filing of a suit to private persons to whom no special damage has been caused, prima facie, indicates that a case of public nuisance exists. Although, an individual in whose fav r a right exists, independently can file a suit for declaratio /injunction on the stated allegation of causing public nuisa but obtaining the consent of the Advocate-General stren thens the cause of the person who wants to institute a suit or eclaration/injunction in respect of alleged public nuisa ce and institution of such suit of public nuisance would be deemed to be a representation on behalf of people residing in the vicinity where the commission of public nuisance is being alleged. It is submitted before us that the respondents/plaintiffs had filed a suit in representative capacity under Order I, Rule 8, C.P.C. But procedure laid down therein was not followed, therefore, the suit should be deemed to be on behalf of, respondents/plaintiffs in their individual capacity. It is not possible for us to accept this assertion of the appellants in view of the consent of the Advocate-General in favour of respondents/plaintiffs to institute a suit. Even otherwise, there is no bar upon a individual to institute a suit for a right existing in his fav e r in respect of the cases pertaining to public nuisance witho t obtaining consent of the Advocate-General, therefore, non- ollowing the procedure under Order I, Rule 8, C.P.C. Would not be fatal in given circumstances of the case. Besides it, in view of the findings of the High Court namely "in case of public nuisace and private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General as required under section 91, C.P.C. Would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance" the objection being raised on behalf of appellants has no substance." similarly removal of encroachment from the common passage path way is not covered by this section. If any reference is needed 1988 CLC 1301 can be looked into. In addition the subsection (2) of section 91, C.P.C. Also provides the safety valve to the respondent No,1 which says that nothingin this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provision. In addition if the lis is of multiple causes as for instance public and private, C the plaint cannot be rejected on account of permission having not been obtained and thus in my view section 91, C.P.C. Has no application in the case in hand and also section 42 of Specific Relief Act does not bar filing of suit by respondent No,1 in pursuance of easmentary rights arising out of the Plot No, 74 as the same were infringed by illegal occupation and encroachment of the adjacent land by the applicant.
12. As far as the applicability of sections 54, 70 and 70-A of Co-operative Societies Act is concerned I agree with the submission of the learned counsel for respondent No,1 that it was never the business of the society to allot the land which was never owned by society and that too without procedure prescribed under the Co-operative Societies Act. The business of the society shall mean and in fact include only that act which is lawful and rests within the jurisdiction, powers and domain of the society. Any act done beyond the parameters of the society's business is not an act done under the law and as such raising grievances in respect of those acts by filing suit would not be hit by sections 54, 70 and 70A of Societies Act. Learned counsel for respondent No,1 has taken me to all the documents which have been filed by the applicant which are available from Page 155 to Page 185 which relates to the correspondence between Building Control Department and the applicant and the applicant prima facie conceded in these correspondence that it was a common passage/pathway/road which he claimed to have been allotted as it is adjacent to his plot in question.
13. Learned counsel for the applicant in support of his arguments regarding section 42 of the Spedific Relief Act has relied upon AIR 1952 Punjab 387 AIR 195 Madras 53 and AIR 1988 Rangoon 143. The ratio of these judgments is to the extent that mere declaratory decree cannot be granted where consequential relief could be 'claimed which has not been claimed. Learned counsel for applicant has not submitted as to what consequential relief the respondent would be entitled for which he has not claimed. Even the facts of the referred judgments are totally distinguishable from the case in hand hence not applicable.
14. Learned counsel for the applicant has also cited the case of Messrs Chaudhry Brothers v. The Gerahanwala Central Bank Limited. Reported in 1968 SCMR 804 and the case of Bin Yamin and others v. Hakim reported in 1996 SCMR 336. The above cases were referred on the ground that no evidence can be led or looked into regarding which no plea has been taken.
15. There is no cavil to above proposition however it has not been pointed out by learned counsel for the applicant as to which part of the evidence the learned trial Court and the appellate Court has relied upon which constitutes out of pleadings. The contention of learned counsel that once the learned trial Court has observed that respondent is not entitled for any easmentary rights then further proceedings or discussing the status of property is uncalled for is perhaps misconceived as in terms of issue No,4 as framed by the trial Court, the respondent No,1 was never refused such rights which he hasclaimed in the suit. The learned counsel for the applicant also relied upon the case of Lahore Cann. Co-Operative Housing Society v. Messrs Builders and Developers reported in PLD 2002 SC 660 and 2004 CLC 587 in support 'of his arguments under section 70 of, the Co- Operative Society Act.
16. 1995. However, as observed earlier, the act of Chairman of the Society was not the one which could be considered as an act touching the business of society and as such is excluded from the application of sections 54 and 70 of the Co Operative Society Act, 1925.
17. Similarly the applicant in the instant case has never challenged the easmentary rights of the respondent which were granted by the trial Court and confirmed by the appellate Court. The ratio of the judgment referred as PLD 2002 SC 660 to the extent that plaintiff has asserted and saddled with heavy burden to establish its legal right under Easement Act, 1882 whereas in this case the concurrent findings of two Courts below establish such assertion and even learned Additional A.G.
18. Claims that the property belongs to the Government who was maintaining road between two societies on this piece of land. As- such the case isdistinguishable in terms or these facts. The declaration has also been granted by the trial Court to the extent that subject property is to be maintained as path way/road.
19. In addition to "the merits discussed above, there is no illegality irregularity or jurisdictional error pointed out by the learned counsel for the applicant to enable me to interfere in the concurrent findings of two courts below. Nothing could be pin-pointed effectively and convincingly which may persuade me to disagree with the concurrent findings of the learned Courts below. No material piece went unnoticed by the learned Trial Court as well as learned Appellate Court. They have scanned the entire evidence in true perspective and their findings cannot be termed either perverse or arbitrary. Concurrent findings of fact supported by the evidence are immune from further scrutiny in an application filed under section 115 C.P.C. The judgments cited by learned counsel for the applicant cannot be advantageously used in the present set of circumstances.
20. These are my reasons for short order announced on 15-10-2012.