' By this revision the petitioners call in question the legality and propriety of the judgments and decrees dated 30-3-1978 and 1-6-1980 passed by the Senior Civil Judge, Quetta and the Additional District Judge, Quetta respectively whereby the suit of the respondent Moulvi Muhammad Hassan has been decreed and the same has been upheld in appeal.
2. The Shops Nos. 379 and 380 are situated side by side in the Loralai town and on the top of the Shop No, 380 there is a house bearing No, 418-B. These properties were evacuee properties. Shop No, 379 was transferred to Abdul Ghafoor and Habibur Rehman while the Shop No, 380 to Moulvi Muhammad Hassan under the Settlement laws. The transfer documents in respect of the Shop No, 379 were issued on 27-6-1965. The transferees later sold the shop to the petitioners in August, 1966 and since the land underneath belonged to Town Committee the lease-deed (Patta) was executed in favour of the petitioner on 17-8-1966. The adjacent Shop No, 380 and the house built thereon bearing No, 418-B was under the same scheme transferred to Moulvi Muhammad Hassan but under two separate orders. The shop was transferred on 27-6-1965 while the house on 2-7-1965. It may be mentioned that both the shops and the house belong to the same evacuee owner. On or about 9-8-1967 an application was made by the petitioners to the Town Committee and permission to construct a Purdawall on the roof of the Shop No, 379 was sought. This application was resisted by Moulvi Muhammad Hassan. The Chair-..Man Town Committee, Loralai therefore addressed a letter to the Deputy Commissioner, Loralai from whose office the transfer documents in favour of the contestants were issued and guidance was sought in the matter. The Deputy Commissioner vide his letter dated 30-10-1967 informed the Chairman Town Committee, Loralai that "Shop No, 379 has been transferred to Messrs Abdul Ghafoor and Habibur Rehman and Shop No, 380 to M. Muhammad Hassan under Settlement Scheme VII free of charge. Thus they are the owners of the roofs of the respective shops transferred to them individually. The man who owns a house should be considered to be the owner of the roof of the same house. The Chairman Town Committee therefore permitted the petitioners to construct the Purdahwall and informed them accordingly on 16-11-67. It appears that Moulvi Muhammad Hassan was not satisfied with this permission and resisted the order of the Chairman Town Committee and a further reference by the Chairman Town Committee was desired and this time again the Deputy Commissioner-cum-Political Agent vide his letter dated 3rd May, 1968 replied the Chairman. The letter is reproduced :- ' Copy of Ex. D/9-A, dated 11-4-1972 prepared. From Civil Suit No, 142/1968, decided on 30-3-1978 Moulvi Muhammad Hassan versus Abdul Ghafoor by the Senior Civil Judge, Quetta.
' From : ' The Deputy Commissioner-cum-Political Agent, Loralai.
' To ' The Chairman Town Committee, Loralai.
' Memorandum No, 3229/379-EP, dated Loralai, the 3rd May, 1968. Subject :-Transfer of Evacuee Property under Settlement Scheme No, VII.
' Continuation this office Memo. No, 3069/379-FP, dated the 27th April, 1978.
2. I have inspected the site in the presence of both the parties. Shop No, 379 has been purchased by Sardar Jumma Khan. Jogezai and as sub the upper storey or portion thereof situated thereon should automatically go to him. He can do what he likes with the roof whether open ground or upper storey. He can use the roof etc. For bona fide purposes as allowed under the law. Moulvi Muhammad Hassan should not obstruct him from any bona fide use of the roof or Balakhana. Both the parties should please be informed.` Moulvi Muhammad Hassan being aggrieved with the permsission of the Town Committee accorded to the petitioners filed a writ petition (W.
P. N. 62 of 1968) in the High Court of West Pakistan Quetta Circuit which was dismissed in limine by Mr. Justice Dorab Patel (as he then was) on 18-10-1968. The learned Judge observed that "It is likely to involve the disputed questions of facts namely the ownership of Shop No, 379 and because a suit would be more adequate and comprehensive remedy which is available to the petitioners. The petition is therefore dismissed in limine.
"These observations tempted the respondent (Moulvi Muhammad Hassan) to file a suit for declaration and injunction and in the suit a claim was laid that he is the owner of the roof of the Shop No, 379 also and couched the prayer in these words :- "In view of the above said submissions, it is very respectfully prayed that a declaration may be given to the effect that the orders dated 30-10-1967, 3-5-1968 and 16-11-1967 passed by the defendants 10 and 11 respectively are null and void. It is further prayed that a perpetual injunction may be granted to the plaintiff restraining the defendants from disturbing the plaintiff from enjoying the peaceful possession of the roof of Shop No, 379. (The order dated 16-11-1967 is the permission of the Town Committee to raise construction). This suit was filed in the Court of the Senior Civil Judge, Quetta on 19-10-1968 and the written statement on behalf of the present petitioners was filed on 24-10-1969 and the preliminary legal objections were raised some of them found relevant to determine the controversy, are :-
(a) That the plaintiff has no legal right or character in the property in suit and therefore, he has no loeus standi to file the suit or to pray for the relief claimed.
(c) Shop No, 379 in its entirety was transferred in the year 1965 under Settlement Scheme No, VII and no appeal or revision having been filed by the plaintiff, the said order of transfer has become final and cannot be challenged by means of the present suit. Thus the present suit is totally incompetent and this Court has no jurisdiction to adjudicate in the matter.
(d) These defendants are in lawful possession of Shop No, 379 as proprietors and owners of the same and therefore, the roof of the same cannot be claimed by the plaintiff as belonging or having been transferred to him.
On this count also the suit in the present form is not maintainable.
(e) There is no cause of action for the present suit which is liable to dismissal.
' On merits. It was denied that the roof of the Shop No, 379 is a part of the house of the plaintiff. The permission granted by the Chairman Town Committee to construct the wall to the petitioners (defendants 3 to 9) was justified.
3. The learned Judge, Quetta framed the following issues :-
(1) Whether the plaintiff has no locus standi to file the suit ?
(2) Whether the suit is improperly valued for the purpose of Court fee and jurisdiction ?
(3) Whether the Court has no jurisdiction to try the suit ?
(4) Whether the plaintiff has any lawful right over the roof of Shop No, 379 ?
(5) Whether the orders dated 30-10-1967 and 3-5-1968 and 16-11-1967 ordered by the defendants 11 and 10 are null and void ?
(6) Whether the 'plaintiff is entitled to the declaration sought for ?
(7) Whether the plaintiff is entitled to the injunction prayed for?
(8) Relief?"
4. That after recording the evidence the suit was decreed of the trial Court on 30-3-1978 and it was declared that the Court had jurisdiction to try the suit and that the plaintiff had the "lawful right over the roof of the Shop No, 379 and that the decisions, orders as contained in communications/letters dated 30-10-1967, 16-11-1967 and 3-5-1968 were of no legal effect. The perpetual injunction restraining the petitioners from interfering with the possession of the plaintiff of the use of roof of Shop No, 379 was granted.
' The petitioners filed appeal against this judgment and decree passed on 30-3-1978 but the appeal was dismissed on 1-6-1980 by the Additional District Judge, Quetta to whom it was entrusted for disposal.
' The present revision in the High Court was filed on 6-7-1980
5. Before I enter into the discussion on the contentions raised by Mr. Basharatullah, Advocate for the petitioner it is necessary to mention that the transfers in favour of the occupants of the evacuee property in the Loralai Town under Scheme No, VII were at one stage declared void as it was found that the Scheme No, VII has not been validly enforced in the A Tribal Area. But vide Regulation No, 1 of 1979 all the transfers made in the Tribal Area during the years 1963 to 1973 (Loralai Town is a part of the Tribal Area of Baluchistan) were validated thus the transfers in favour of the contesting parties of the respective properties stand validated and the transfers have become final and past and closed.
6. Mr. Basharatullah, Advocate, the learned counsel for the petitioners has urged the following contentions before me :-
(a) That the Shop No, 379 having been transferred to the predecessors in-interest of petitioners belongs to the petitioners completely ;
(b) That the respondent No, 1 herein (Moulvi Muhammad Hassan) having been transferred the Shop No, 380 and the house thereon had no entitlement to Shop No, 379 and for these two reasons he could not file a suit claiming any right over the roof of the Shop No, 379.
(c) That the judgment of the learned Senior Civil Judge, Quetta proceeds on the assumption that there was a right of easement in favour of the plaintiff though he himself had not claimed any such right. No right of easement can be claimed in respect of the property transferred under the Settlement laws.
(d) That from the judgment of the learned Additional Judge it appears that the finding on issue No, 1 by the Senior Civil Judge has been impliedly upheld by the Additional District Judge, Quetta but the reasoning is perverse.
7. A brief reference to the provisions of the Displaced Persons (Compensation and Rehabilitation) Act in so far they are relevant for the present purpose may here be made. Under section 3 of the Act the Central Government is empowered to issue a notification acquiring the whole or any specified part of the evacuee property and henceforth the property mentioned in the notification vests in the Central Government and becomes available to claimants and non-claimants in accordance with schedule to the Act, subject to certain exceptions to which it is not necessary to refer. Schemes for transfer have to be framed in accordance with section 16 of the Act, but the right to transfer has already been provided for in the Schedule to the Act. Property is generally to be transferred to persons in possession. The Scheme of transfer of houses/shops with which we are concerned also makes provision as to officers who are to make original order of transfer. The appeals and revision have also been provided. Sections 22 and 25 of the Act which have been pleaded as a bar to the suit runs as under : - "22.. Finality of orders.-Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act, shall be final and shall not be questioned in any Court."
"25. Bar of jurisdiction.-Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Central Government or any officer appointed under this Act is empowered under this Act to determine and no injunction or process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
' The foundation of the jurisdiction of the Settlement Officers for transfer of property is that the property should be that which was evacuee property. In the instant case this position is undisputed.
It is clear therefore that the orders of the Settlement authorities would be binding by virtue of sections 22 and 25 in respect of the matters which B the law intended should be decided only by them.
' The acquisition of the property to be dealt with under the said Act therefore is undisputed. The resistance to the construction of the Purdah, wall desired by the petitioners is based on the claim of the respondent Moulvi Muhammad Hassan contained in para. (I) of the plaint, that "the aforesaid house of the plaintiff is partly situated on the roof of Shop No, 380 and partly on the roof of another adjoining Shop No, 379. This claim was denied by the petitioners in these words :- "This is however, totally false that roof of Shop No, 379 is a part of the house of the plaintiff."
' The sole question involved in the instant case therefore is whether the roof of Shop No, 379 is part of the House No, 412-B built over the Shop No, 380. The document which can decide this point conclusively is the document of transfer in respect of House No, 418-B issued by the Settlement authorities. The respondent No, 1 has not cared to produce that transfer order instead has examined person who have made attempts to explain that the roof of the Shop No, 379 contained superstructure which was a part of the House No, 418-B. I am afraid this oral evidence is inadmissible in view of the provision contained in section 91 of the Evidence Act and no evidence could be allowed to he brought on record, except the document itself (i,e, Transfer Deed issued in respect of House No, 418-B in favour of Moulvi Muhammad Hassan). The law on this point is clear. The oral evidence cannot be substituted for the writing nor the contents of a document proved by oral evidence. The document which formed the real foundation of the claim of the plaintiff has neither been produced nor proved before the Court as required under section 64 of the Evidence Act. The entire evidence of the plaintiff is thus liable to be ignored being inadmissible in law. It can therefore, be safely concluded that the plaintiff has failed to establish his case as set up in the plaint and the material particulars constituting the cause of action has not been proved. The claim therefore falls to the ground. Both the shops and the house are independent and self, contained units. The only logical conclusion therefore is that the petitioners are owners of whatever is contained in the Shop No, 379. The roof is certainly part of the shop. Thus there was nothing wrong in the letters dated 30- 10-1967 and 3-5-1978 sent by the Deputy Commissioner Loralai in reply to the enquiry about the fact of transfer of the respective properties. The observations contained in the letters are nothing but logical deductions/ contusions of the transfer Orders.
7. The evidence produced by the plaintiff is contradictory and does not inspire confidence at all. P. W. Qazi Abdul Rehman talks of three rooms while Dost Muhammad said that the house consists of two rooms and is on the upper storey. Both therefore contradict each other about the accommodation of the House No, 418-B P. W.
Jehangir says that there are two rooms over the shop of the plaintiff. The witnesses Muhammad Zarif and Mullah Muhammad Wali come out with a different story that the house of the plaintiff is over the roof of the shop in possession of Muhammad Amin (one of the petitioners).
' The learned trial Court has expressed himself in these words :- "Plaintiff has been using/living in the house for more than thirty years as owner and the defendants if had any right over the roof had not objected to, now they have no rightful claim over the roof of their shop which had already been in use and had already been legally transferred as such the plaintiff has the lawful right now over the roof of the Shop No, 379 and the defendants had no right to make and disturbance over the plaintiff's peaceful use and occupation of the same since last three decade."
' These observations were made in respect of issue No, 4 while dealing the issues Nos. 6 and 7 the learned Senior Civil Judge has observed "So the plaintiff has proved his case that he has been enjoying the peaceful possession of the roof of both the shops and there is one house over the shop which was transferred to him and so the allotment of the house to the plaintiff is not also objected of the defendant.
' These observations are not supported by the evidence. As already said in this judgment that the plaintiff has failed to prove the ownership of the roof of the Shop No, 379 legally transferred to the petitioners. The learned Senior Civil Judge also has not given finding that the plaintiff/ respondent No, 1 is the owner of the roof, but proceeds on the assumption that there was a right of easement in favour, of the plaintiff though the plaintiff had not claimed any such right. The plea that the plaintiff respondent No, 1 (Moulvi Muhammad Hassan) is the owner of the roof of the Shop No, 379 is distinct from the right of easement conceded in favour of the plaintiff by the Courts below.
8. An easement is a right which the owner or occupier of land possesses as such for the beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not his own. The plaintiff/respondent No, 1 has not claimed any right of easement in the suit. It is admitted position that the properties i,e, Shops Nos. 379 and 380 belonged to the same evacuee owner. In such state of affairs no right of easement could exist till the time the properties remained in his name. The evacuee owner having left properties and evacuated to India the same vested in the Custodian of Evacuees' property. The respondent No, 1 may have come in occupation of the property but the right of easement certainly did not exist because by the issuance of the notification under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 all immovable property was acquired and the property vested wholly and absolutely in the Central Government free from all encumberances and the interest of the evacuee in the property extinguished. The effect of acquisition of property under section 3 (3) of the Displaced Persons F (Compensation and Rehabilitation) Act, 1958 and the phrase "Free from all encumberances ' has been considered by a 'Division Bench of the Lahore High Court in Abdul Karim's case (1).
Their Lordships expressed themselves in these words :-- "Now by Notification No, U. 8-79/3113, dated 21st August,I959 issued under section 3 of the Act, all immovable property in the West Pakistan to which the Act is applicable was acquired by the Government of West Pakistan for the Central Government under subsection (2) of section 3 of the Act. Subsection (3) of section 3 of the Act says that when notification about acquisition is published under subsection (2) the property mentioned in notification shall vest wholly and absolutely in the Central Government free from all encumbrances, and the interest of the evacuee in the property shall be extinguished. On a plain reading of this provision of the Act, it would become clear that whatever rights any person had the property which was evacuee property, be that person an evacuee or anybody else, shall cease to exist on the issue of the notification about acquisition."
' This view was later endorsed in Muhammad Afzal's case (2) and it was held that the phrase "free from all encumbrances mean that the aggregate of rights in the property has been acquired with the result that all easements tenancy rights and customary rights disappear. It is thus clear that by the publication of the notification the property vested in the Central Government free from all rights including the right of easement.
9. The house was transferred to the respondent No, 1 for the first time in the year 1965 and the period of twenty years by the time the suit was filed in the year 1968 did not pass and no right of easement accrued to him. In the instant case there was no easement in existence when the property was transferred to the respondent No,
1. The oral evidence led by the respondent is thus immaterial. The findings of the Courts below are therefore patently illegal.
' For the above reasons the revision is accepted and as a consequence the suit filed by Moulvi Muhammad Hassan stands dismissed and the permission to the petitioners to construct Purdahwall accorded on 16-11-1967 by the Chairman Town Committee is restored. The petitioner is also entitled to the costs.
' These are the reasons for my short order announced on 11-6-1985.