' This is second appeal from the order of learned Additional District Judge Karachi dated 13-1-1970 whereby he had upheld the judgment of 1st Class civil Court Karachi dated 10-2-1969 in Suit No, 169 of 1966, filed by the respondents against the appellant.
2. The suit of the respondent/plaintiffs was that the houses of the parties are situated within a common compound and that in-between these houses there was small compound measuring 6 yds. Into 4 yds. This smaller compound was in common use of the parties in which their common latrine was situated. It was further alleged by the respondent/plaintiffs that the appellant constructed a wall around this sma ller compound, whereby the doors of the houses of the respondents were blocked and the respondents were deprived of the use of the common compound and the common latrine situated therein. Hence the suit for declaration with following prayers :- "(1) That this Hon'ble Court may be pleased to declare that the plaintiffs had a right of way from their premises to the main gateway of the compound and the right of way to the latrine.
(2) That the defendant be ordered to demolish the obstruction wall constructed by the defendant and further prohibit her in future to construct any such wall or create any obstruction in the way of the plaintiffs.
(3) Any other relief that this Hon'ble Court may deem fit and just in the circumstances of the case."
3, The appellant/defendant denied the claim of the respondents and pleaded that the disputed portion claimed by the respondents to be in their common use was and is part of her house. On these pleadings the learned Civil Judge framed several issues but the only relevant issue was whether the defendant/appellant had constructed the pucca wall around disputed compound so as to block doors of the houses of the respondents. After recording of the evidence of the parties on the said issue and also inspecting the site, the learned Civil Judge came to the conclusion that the appellant had constructed such a wall and included the common compound in her house. On this finding he decreed the respondents suit and directed the appellant to remove the wall. The appeal filed by appellant before the learned Additional District Judge was dismissed.
4.It transpires from the pleadings that the parties to the litigation were unauthorised occupants of the plots on which their houses were situated. The disputed common compound said to be in the use of the respondents was also Municipal land and did not belong to any party. The respondents have not disputed this fact. They have not produced any document to prove that the plots on which their houses were situated were legally allotted to them or that they had any legal vested right to use the disputed compound for the purpose of going to the latrine. It is not their case that the disputed compounnd was part of their houses. If the respondents were using this compound, they were doing so without any permission of the Municipal Authorities.
5. The suit as framed by respondents discloses that both the parties were unauthorisedly using the disputed portion and that none of them had any legally vested right to bring this portion of land in their common use or to construct latrine on this piece of land. This is, therefore, a case in which both the parties were in pari delicto. The learned Courts below have failed to consider this important aspect of the case. They have upheld the claim of the respondents simply on the ground that they had been using the disputed piece of land for a certain period of time for the purpose of going to the latrine. It is not the case of the respondents that they had acquired any right of easement over this piece of land by using the same since a very long time. In any case since both the parties were unauthorisedly using this piece of Municipal land, the principle underlying the doctrine of pad delictum will apply. The doctrine is that when both the parties are equally at fault, then law will favour the party who is in possession. Reference in this connection may be made to Broom's Legal Maxims, 10th Edn., page 489 wherein learned author states as under in respect of the parties who are in pan I delicto:-- "Not only in aequali jure, but likewise in part delicto, is it true that potion est conditio possidentis, where each party is equally in fault, the law favours him who is actually in possession ; a well- known rule, which is, in fact, included in that more comprehensive maxim to which the present remarks are appended."
6. The real owner of the piece of land in question is admittedly the K. M. C. Hence it is the K. M. C.
Who is entitled to take action against the illegal occupants. In the present case both the parties had been unauthorisedly using the said piece of land, hence in view of the maxims stated above the respondents had no cause of action for relief of declaration and injunction against the appellant. In view of this legal position the orders of the lower court cannot be upheld. In the result the orders of the two Courts below are set aside, the suit of the respondent/plaintiff is dismissed and the appeal is allowed with costs.