' AMSAD KHAN, J.-Respondent filed a declaratory suit for "preventing the defendant from proclaiming himself to be an owner of the roof of Shop No, B-I-G-M-35/B, Ravi Road, Okara and being restrained from making unauthorised construction of any kind". He based his claim on the plea that he had purchased this shop on 20-4-1970 from Sher Muhammad, its transferee from the Settlement Department. The defendant contested the suit by . Denying his right and claiming that the roof of the shop is in his possession as a part of his residential unit. Pleadings of the parties led to the framing of the following issues :- "(1) Whether the suit is not maintainable in its present form, as the plaintiff lacks cause of action ? 0.
P. D.
(2)Whether the plaintiff is estopped to institute this suit by his word and conduct ? 0. P. D.
(3)Whether the plaintiff is entitled to the decree prayed for in the main suit ? 0. P. P.
(4)Relief."
' To prove their respective cases, parties led the desired evidence wherein the plaintiff, apart from making his own statement on oath as P. W. 1 and producing two other witnesses, purported to also produce through the statement of his counsel dated 9-3-1981, a copy of sale-deed as Exh. P. 1 and a copy of the order of Settlement Commissioner dated 16-12-1959 as Exh. P. 2 which, however, are mentioned to have been taken on the record as subject to objection of the defendant. In rebuttal, the defendant had his own statement recorded as D. W. 1 and produced another two witnesses to close his case on 5-7-1981. Learned trial Judge took up Issues Nos. 1 and 3 together and considering that the plaintiff had not taken any specific plea in his plaint with regard to his ownership of the surface of the roof, also found that there was no documentary evidence produced by him to establish either that his vendor Sher Muhammad may have been transferred the roof as well or that through his registered sale-deed he have may purchased the roof also and had not even made any positive statement with regard to the ownership of the roof. He also concluded that since there was a petition for ejectment filed by Sher Muhammad, his predecessor-in-interest, against the defendant in the year 1968, therefore, it was manifest that his occupation of the roof dated from a time before that, Learned Civil Judge also took specific notice of the fact that the plaintiff had not produced his registered sale-deed dated 20-4-1970, wherefore, a presumption arose against him and holding that the plaintiff had failed to prove his case, he dismissed the suit by his judgment dated 4-2-1982.
2. An appeal there against filed by the plaintiff was, however, accepted by the learned District Judge. On 19-3-1984 to reverse the decree of the trial Court for the reason that the trial Judge had erred in drawing wrong conclusions from the evidence on the record. He considered that the roof formed part of the shop originally transferred to Sher Muhammad and, after remarking that both the sides have to co-exist to make a roof, he proceeded on the premises that it was not the case of the defendant that the lower side of the roof was not in possession of the plaintiff, and held that since the lower side of a roof cannot be separated from its upper side, therefore, if the roof may collapse or be pulled down then the defendant would not have any right whatsoever to reconstruct it. Then, he went on to even observe :- "This Court finds that even if defendant uses the upper side of the roof, the plaintiff being in possession of the lower side cannot be said to be out of possession of the entire roof. Upper and lower sides taken together make it a roof. If there is no lower side, there can be no upper side."
' While also remarking that possession of the defendant on the upper side of the roof is utterly immaterial, learned District Judge also observed :- "It is nowhere to be seen in the transfer order of the defendant that roof of shop in question formed part of the property transferred to the defendant."
' In the end, learned District Judge observed also that plaintiff, being the purchaser of independent shop from Sher Muhammad, is the owner of the roof in dispute as a whole and proceeded to decree the suit against the defendant who has now come up to this Court on revision.
3. Learned counsel has argued that learned District Judge has mis viewed the case into assuming that the defendant had to prove his possession on the basis of some documentary evidence or that his possession of the upper side of the roof was only immaterial. It is submitted that therein he has lost sight of the fact that the shop in possession of the plaintiff was a part of a composite building constructed by its evacuee owner as a part of a residential premises and since the shop was carved out by the Settlement Department to be disposed of separately, therefore, the entire building, minus that shop, formed one unit which was transferred to the defendant as a house and hence it was not for the defendant to specifically prove that he had been transferred the upper portion of the shop but it was for the plaintiff to specifically prove himself to be entitled to the ownership or user of the upper side of the roof which was not accessible from the shop, as had even been admitted by the plaintiff clearly in his statement made as P. W.
1. There is little doubt that judgment passed by the learned District Judge is assumptive in character and proceeds upon conjectures made in disregard of the character of the whole of the building, losing sight even of its user as such. Trial Judge had held the possession of the defendant over the surface of the roof to be continuing since the year 1948 but learned District Judge has not specifically set aside this finding and has merely remarked that his possession thereof is immaterial. Since this suit was instituted on 16-6-1980, therefore, it is no easy to understand as to why may his such a user of the roof for that long a period be simply immaterial and have not led to the vesture in him of a right by easement ? However, a considered finding thereabout cannot be recorded because a specific plea on the point has not been taken in the written statement wherein it is asserted merely that he is using it as an owner. Be this as it may, the judgment and decree passed by the learned District Judge is liable to be set aside for the material misassumption mad by him to the effect that the plaintiff is a purchaser of the shop from Sher Muhammad, which fact he has not proved by either producing his sale-deed on the record or proving it by any other evidence. I have noticed that the defendant had taken a timely objection to the documents Exhs. P.
1 and P. 2 being taken on the record through the statement of the counsel of the plaintiff and whereas the document mentioned as Exh. P. 2 is not available on the trial Court's record received in this Court with pages 119 and 120 missing, there is no document assigned the Exhibi mark P.
1. There, however, is a photostat of a registered sale-deed present at pages 73 to 91 of the trial Court's record which does not bea any exhibit mark and even the particulars required by Order XIII, rule 4 of the C. P. C. To be entered on the documents exhibited in the trial Court) do not appear on any document.
4. Learned counsel for the respondent, however, states that the said photostat of the sale-deed is the one which was produced by the plaintiff as Exh. P. 1 through the statement of his counsel recorded on 9-3-1981. Apart from the fact that there is no evidence even worth the name adduced by the plaintiff to prove, any sale-deed in his favour, the said photostat cannot be accepted as a legal document because it is neither the original nor a certified copy thereof which may be capable of being brought on the record as a secondary evidence within the description contained in section 63 of the Evidence Act, 1872 and there is no case at all made out within the requirements of section 65 thereof for reception of secondary evidence. For all these reasons, I have refused to take notice of the contents of this photostat with the result that there is no legal evidence available on the record about the alleged sale made in favour of the plaintiff whose title thereabout cannot be held to have been established on the basis merely of an assertion to that effect made in his statement as P. W.
1.
5. Since the decree passed by the learned District Judge does not have any legal support from the record, therefore, the same is incapable of being D sustained. It is accordingly set aside and accepting this civil revision the trial-Court's decree of dismissal of the plaintiff's suit is restored with costs throughout.