' MUSHTAQ AHMED TARAR, J. --- The petitioners have directed this civil revision against judgment and decree dated 19.4.2007 passed by leaned Additional District Judge Vehari, whereby the appeal of petitioners against the judgment and decree dated 27.7.2006 passed by learned Civil Judge Vehari decreeing the suit of respondent No. 1 was dismissed.
2. The facts in brief leading to this revision petition are that respondent No. 1 filed a suit for declaration against the petitioners and respondent No. 2 with the assertions that he alongwith the petitioners are joint owners in the land measuring 200 kanals, 02 marlas bearing Khewat No. 32 Khatoni Nos. 110 to 116 situated in Chak No. 159/WB Tehsil and District Vehari; that in Khasra No. 16/15,16,25 of said land there is a `Ghair Mumkin' passage, whereas respondent No. 1 has installed a tube-well in Khasra No. 16/6 and he has constructed Dera there; that the said passage leads to his Dera and tube well and the same is being used by him and other people since long; that respondent No. 1 has also gave the land measuring 1 kanal, 04 marlas from his share to the petitioners in place of said passage; that the dispute regarding the said passage had arisen between the parties whereupon Aftab Ahmed Khichi, Member District Council was appointed as arbitrator who passed arbitration award on 15.07.1995; that he moved application before the District Collector for approval of the said passage which was illegally dismissed on 6.11.1996 against which order he filed appeal which was dismissed on 18.10.2000; that he filed revision petition before Member Board of Revenue which was also dismissed on 2.10.2002; that the orders of Revenue Authorities are illegal, unlawful and void; that he is using the said passage for the last about 50 years and there is no other passage leading to his tube- well and Dera except the said `Ghair Mumkin' passage; that the entry of said `Ghair Mumkin' passage is also available in the Revenue record; that he is entitled to use the said passage and the petitioners have no right to interfere in his said right. In the plaint the respondent No. 1 prayed that he being co-owner in the said land is entitled to use the said passage, the parties are bound to accept the arbitration , award dated 15.7.1995 and the petitioners have no right to , interfere into the right of respondent No. 1 for using the said passage. He also prayed that the orders of District Collectors dated 6.11.1996, Additional Commissioner (Revenue) dated 18.10.2000 and Member Board of Revenue dated 2.10.2002 be declared null and void.
3. The petitioners contested the suit by filing written statement wherein they took 08 preliminary objections on the maintainability of suit. On merits the petitioners contended that the said passage does not lead to the tube well of respondent No. 1; that another passage is available for the land of respondent No. 1 and he has no need for using of the disputed passage; that in the orders of District Collector, Additional Commissioner (Revenue) and Member Board of Revenue, it is alearly held that the passage cannot be made in the land of any person against his wishes and the application, appeal and revision of respondent No. 1 before Revenue Department have been dismissed; that they have not obtained land measuring 1 kanal 04 marlas from respondent No. 1 in place of the said passage. The petitioners controverted the averments of plaint and prayed for dismissed of the suit.
4. In view of pleadings of the parties the learned Trial Court framed the following issues:-
(1) Whether the impugned orders dated 06.11.1996 passed by District Collector, Vehari, order dated 18.10.2000 passed by Additional Commissioner Revenue, Multan and order dated 02.10.2002 passed by the Member Board of Revenue (Punjab), Lahore are illegal, against facts and void, therefore, ineffective qua the plaintiff's right? OPP
(2) Whether the plaintiff is entitled to a decree for declaration with permanent injunction as prayed for on the grounds mentioned in the head note of the plaint? OPP
(3) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD
(4) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(5) Whether the suit is based on mala fide and as such defendants are entitled to special costs?
OPD
(6) Relief.
5. After framing of issues the learned Trial Court recorded the evidence of the parties. In evidence respondent No. 1 Muhammad Akram himself appeared as PW1 and produced Muhammad Sharif as PW2. In documentary evidence he tendered copy of register haqdaran zamin for the year 1990-91 Ex.P1, copy of register haqdaran zamin for the year 1994-95 Ex.P2, copy of register haqdaran zamin for the year 1998-99 Ex.P3, copy of register haqdaran zamin Ex.P4, copies of Khasra Girdawaries Ex.P5 to Ex.P9, Akas Shajra Ex.P10, copy of order of Additional Commissioner dated 18.10.2000 Ex.P11 and copy of order of Member Board of Revenue dated 2.10.2002 Ex.P12.
6. Lh rebuttal Muhammad lqbal petitioner No. 1 appeared as DWI and petitioners produced Aitzaz Aslam as DW2. In documentary evidence the petitioner tendered copy of Khasra Girdawri Ex.D1, attested copy of application for partition of land Ex.D2. While concluding the trial the learned Civil Judge Vehari decreed the suit of respondent No. 1 vide judgment and decree dated 27.7.2006. The petitioners assailed the decree dated 27.7.2006 in civil appeal, which was dismissed by the learned Additional District Judge Vehari vide judgment and decree dated 19.4.2007.
7. Feeling aggrieved with the concurrent decrees of both the learned Courts below the petitioners have filed this revision.
8. Learned counsel for the petitioners argued that respondent No. 1 and petitioners are joint owner and their shares have not yet partitioned; that for carving passage in the landed property and for demarcation of joint property the Revenue Court or the Revenue Officer is competent forum and the Civil Court has no jurisdiction; that there is another passage leading to the land of respondent No. 1 and the learned Trial Court and the learned Appellate Court have illegally passed the findings in favour of respondent No. 1; that respondent No. 1 filed application for demarcation of land but after getting the impugned decree from Civil Court he withdrew the said application with mala fide intention; that no declaration regarding the passage existing on joint land can be passed in favour of respondent No. 1 and the learned Courts below have committed material illegality and sheer miscarriage of justice while passing the impugned judgments and decrees; that both the impugned judgments and decrees are not sustainable in the eye of law.
8-A. On the other hand, learned counsel for respondent No. 1 supported the decrees of learned Civil Court and the learned Appellate Court and contended that through oral as well as documentary evidence respondent No. 1 has proved that there is `Ghair Mumkin' passage at the spot leading to his Dera and tube well which is being used by him since long; that respondent No. 1 is joint owner alongwith the petitioners having 1/3rd share in the whole land and he is not stranger as illegally held by the Revenue Authorities.
9. Arguments heard, record perused.
10. In the plaint it is the case of respondent No. 1 that `Ghair Mumkin' passage is existing in Khasra No. 16/15,16,25 leading to his tube-well in Khasra No. 16/6 where he has constructed his Dera and he is using the said passage for the last 50 years. In evidence as PW1 he has corroborated the contents of his plaint and stated that he is co-owner of 1/3rd share in land measuring 200 kanals in the Khewat alongwith the petitioners and in Khasra No. 16/15, 16, 25 there is a road leading to his tube well and Dera constructed in Khasra No16/6 and he is using the said passage for the last 35 years.
11. The petitioner Muhammad lqbal in evidence as DW1 stated in his examination-in-chief that there is no passage in square No. 16/15, 16, 25 leading to the tube well of respondent No. 1 and there is a metalled road towards west of the land of respondent No.
1. He stated that respondent No. 1 moved application before D.C. In the year 1996 which was dismissed and the appeal of respondent No. 1 before the Additional Commissioner and Board of Revenue was also dismissed. He stated that suit has been filed just to harass him. During cross- examination he admitted correct that the land measuring 200 kanals is joint property in which respondent No. 1 is owner of 1/3rd and petitioners are owners of 2/3rd. He admitted correct that respondent No. 1 has installed tube well in Khasra No. 16/6. He denied that there is a passage in Khasra No. 16/15, 16, 25 leading to the tube well of respondent No.
1. He denied that he has obtained land measuring 1 kanal, 4 marlas from respondent No. 1 as alternative for the said passage. Then he stated that there is a passage in square No.
16. DW2 Aitzaz Aslam the witness of petitioners in his examination in chief stated that there are two passages leading to the land of respondent No. 1 in addition to the dispute passage. Then he stated that the disputed passage is necessary for leading to tube-well, however, the same should be carved out by the respondent No. 1 in his own land. During cross-examination he stated that there is a passae in Kila No. 15, 16 and 25 in the disputed land which is being used by lqbal. He stated that the respondent/plaintiff has installed tube well in Khasra No. 16/6 and he is using the disputed passage. The respondent No. 1 has tendered in documentary evidence attested copy of register haqdaran zamin for the year 199091 Ex.P1, attested copy of register haqdaran zamin for the year 1994-95 Ex.P2, attested copy of register haqdaran zamin for the year 1998-99 Ex.P3, attested copy of register haqdaran zamin Ex.P4, attested copies of Khasra Girdawaries Ex.P5 to Ex.P9, Akas Shajra Ex.P10, attested copy of order of Additional Commissioner dated 18.10.2000 Ex.P11 and attested copy of order of Member Board of Revenue dated 2.10.2002 Ex.P12. From the oral as well as documentary evidence available on the file it is clearly established that there is a Ghair Mumkin' passage in Kila Nos. 15,16 and 25 leading to the tube well of respondent No. 1 and respondent No. 1 is using the said passage since long.
12. I have gone trough the order of Member Board of Revenue, whereby he dismissed the revision petition of respondent No.
1. The findings of learned Member Board of Revenue are totally illegal and against the record. He has observed in his order dated 2.10.2002 that Revenue Authorities cannot carve out paths from the land of a private person for personal use of another private person, without the consent of the owner of the land in question. He has totally lost sight of the fact that in this case respondent No. 1 is not a private person or stranger to the land where the Ghair Mumkin' passage is existing and is being used by respondent No.
1. Admittedly respondent No. 1 is joint owner of the said land alongwith petitioners and it is settled law that every co-sharer in the joint Khata is to be considered owner in every inch of the joint land.
Therefore, the findings of learned Member Board of Revenue and other Revenue Officers passed against respondent No. 1 were not sustainable under law and learned Civil Court has rightly set aside the same while passing the impugned decree.
13. It is proved from the oral as well as documentary evidence placed on record by respondent No. 1 that there is a `Ghair Mumkin' passage in Khasra No. 16/15, 16, 25 leading to his tube-well and Dera situated in Khasra No. 16/6 which is being used by respondent No. 1 who is joint owner in the said land. Hence the learned Courts below have rightly passed the decrees in favour of respondent No. 1 and against the petitioners. Both the learned Courts below have passed the impugned judgments and decrees after appraisal of whole oral as well as documentary evidence of the parties available on the record and while passing the impugned judgments and decrees no illegality or error of jurisdiction has been committed warranting interference of this Court in Revisional jurisdiction. Both the Courts below have passed concurrent findings and decrees in the matter, hence, I find no merits in this revision petition and the same is dismissed in limine. Civil revision .