JUDGMENTRAJA AFRAS1AB KHAN, J.-- The petitioner Malik Farooq Ahmad Khokhar has moved this Constitutional petition praying therein that the impugned order passed by the learned Magistrate dated 15.2.1987 and that of the learned Additional Sessions Judge dated 11.4.1987 may be declared without lawful authority and of no legal consequence.
2. On 19.4.1987, the petition was admitted to regular hearing and notices were issued to the respondents. Respondent No.3 is present and is represented through his learned counsel.
3. Briefly stated, the facts of the case are that respondent No.3 Qamar Parvez moved a petition before the Deputy Commissioner, Multan, saying that a common passage in property bearing khasra No.385 on Aziz Shaheed Road Multan as well as Qasim Road Multan has been closed and consequently the said common passage because of its closure cannot be used. The above referred application was firstly sent to the Tehsildar Multan and then to the Assistant Commissioner Multan for the purposes of holding an inquiry. Ultimately, the matter was entrusted to the Area Magistrate for taking proceedings under section 133 Cr.P.C. The learned Magistrate after taking congnizance in the matter, summoned both the parties and accordingly passed a conditional order under section 133 Cr.P.C, on 13.9.1986. The case of the petitioner before the respondent was that the disputed place is a thoroughfare and that the eastern gate of the property was exclusively used by the respondent and other co-sharers of the bungalow. The petitioner also produced before the learned Magistrate copies of the P.T.D, and the site plan showing that he is the owner of the bungalow along with the property in question. The respondent No.3 also produced some documentary evidence including 23 affidavits sworn by different persons to show that the disputed property was public place. The learned Magistrate after collecting the evidence in the shape of affidavits and other documents, proceeded to make his earlier conditional order into an absolute order under section 137(3) Cr.P.C, on 15.2.1987. The operative part of the order said that the disputed place, namely, bungalow No.44 Aziz Shaheed Road which was closed by an iron gate by the present petitioner, will come within the meaning of public nuisance and as such, it should be removed within three days of the issuance of the order vide Annexure D. This order was challenged by the petitioner by filing a criminal revision which was heard and dismissed by the learned Additional Sessions Judge Multan on 11.4.1987.
4. Learned counsel contended that the petitioner is the exclusive owner of the path in question because the authorities along with bungalow No.44 vide Annexure B, a copy of the P.T.D. It is forcefully submitted by the learned counsel that the case of the present respondent No.3 was that there was a dispute between the parties regarding the use of a common passage and admittedly vide Annexure 'A', the respondent No.3 did not take up the plea that the disputed path was in fact a thoroughfare and that the parties and the public at large have been using the said property as a thoroughfare. Learned counsel stated that in view of the evidence available on record, the path in question shall not come within the meaning of thoroughfare. Learned counsel maintained that whether the respondent No.3 or for that matter the member of the public at large could claim to use the disputed path as a thoroughfare, is a fact which has to be determined by the competent Civil Court after recording the evidence and after hearing the parties concerned. Learned counsel urged that this is not within the lawful domain of the learned magistrate to embark upon the determination of disputed question of fact which question of fact had to be determined by the Civil Court after recording the evidence. On the face of it, the learned counsel stressed that the findings of the learned Magistrate as well as of the learned Additional Session Judge are wholly without lawful authority and of no legal consequence. In that behalf, the learned counsel has placed heavy reliance on Nur A.I Shah v, Natha (A.I.R. 1927 Lahore 227) and Abdul Latif v. The State (P.L.D. 1958 (W.P.) Karachi 513). In not-shell, the case of the petitioner is that title in respect of the property in question is involved and this title has to be determined by the Civil Court alone and definitely not by respondents No.1 and 2. Learned counsel for the contesting respondent submitted that there is concurrent finding of fact having been arrived at by the two Criminal Courts saying that the disputed path is in fact a thoroughfare and, therefore, the members of the public at large including the parties can use the said path. Learned counsel stated that in view of this position, the installation of an iron gate by the petitioner and closing the path amounts to a public nuisance which will come within the mischief of section 133 Cr.P.C. Learned counsel submitted that the impugned order passed by the learned Magistrate and affirmed by the learned Additional Sessions Judge are also within the lawful authority of respondents No.1 and 2. Learned counsel further submitted that it is established beyond doubt by 23 affidavits of various persons that the disputed path is a thoroughfare.
5. I have heard learned counsel for the parties at considerable length and have perused the record very minutely. I am of the view that there is nothing on the record to show that the path in dispute is in fact a thoroughfare. To begin with, the case of the respondent No.3 was that there is a dispute in respect of a common passage between the parties. This fact has amply been demonstrated by the application of the said respondent vide Annexure 'A', that the dispute between the parties pertains to a common passage and admittedly not to a thoroghfare. The plain dictionary meaning of the expression 'thoroughfare' is 'road, or street or path open at both ends especially one through which much traffic passes'. Thus, there is nothing on the record to show that the path in question is, as a matter of fact, being used by the general traffic. On the contrary, the case of the petitioner is that he is the owner of the bungalow and the path in question is attached to the said bungalow.
Under any circumstances it could not be termed as a 'thoroughfare.' Learned counsel stated that the P.T.D, issued by the Settlement Department as well as the site plan Annexures 'B' and 'C', respectively, will show that bungalow No.44 has been transferred to the petitioner. This means that the whole.Of the area of bungalow No.44 has been transferred to the petitioner including the path in question. This is the plain interpretation which could be made of the document P.T.D. (Annexure 'B'). The case of the petitioner throughout has been that he is the owner of the path in question and that nobody else including the respondent No,3, has any right whatsoever to use the path except of course with his consent, ln my view, no evidence has been led by respondent No.3 to show that in fact the path is a public property and as such, was being used as a thoroughfare by the public at large including the parties to the case. Further, there is no evidence on record to show that any obstruction has been raised by the petitioner to close that public place. I have given my anxious thought to the contention raised by the learned counsel for respondent No.3 that the path in question is in fact a public place. No documents have been placed on record by the respondent to show that the property in question was used as a public place by the members of the public from time immemorial without any obstruction. Respondent No.3 cannot be permitted to say that the property in question is a public place inasmuch as once he has taken the plea in his application Annexure 'A' that there was a common passage between the parties. The mere fact that the respondent No.3 has been using this way, will not at all make the path as a thoroughfare. Thus, the result is that there is a serious dispute between the parties over the titile of the path in question. The clear plea of the petitioner is that he is the owner of the path in question and that it is up to him to allow the respondent No.3 to use it or not. However, the contention of respondent No.3 is that the property in question is in fact a public place and that the petitioner is not the owner of the said property. The facts and circumstances of the instant case will amply show that the respondent No.3 has not at all been able to prove before the criminal Courts that the petitioner is not the owner of the property in question and that he including others, has been using the said path as a public place. Thus, learned counsel has placed heavy reliance on the rule laid down in Nur A.I Shah v.
Natha (A.I.R. 1927 Lahore 745) to contend that "rights of way are obviously matters to be decided by the Civil Courts and not by the Criminal Courts. It is in the interest of public policy that Criminal Courts should not deal with the matters which it is compulsory to leave to Civil courts." The admitted position in the case is that Khasra No. 385 is a huge area consisting of 28 Kanals and 7 Marlas. In this Khasra number, several properties of different nature have been raised. This is also established that this property has several openings both on Aziz Shaheed Road as well as Qasim Road, Multan, but it is nowhere mentioned that the path in question or for that matter, other openings of the above referred property were used by the public at large. Learned counsel for the respondent No.3 submitted that there is a concurrent finding of fact arrived at by the two Criminal Courts holding that the property in question is a public place. I do not agree with the learned counsel for the simple reason that there is no documentary or oral evidence to show that the property in question is not attached to bungalow No.44, which stands admittedly transferred by the Settlement Authorities to the petitioner. Thus, this finding of fact is not at all based on any evidence, oral as well as documentary. There is, therefore, no sanction behind the findings of fact arrived at by the two criminal Courts. On the contrary, there is ample evidence, as stated earlier, to show that the property in question is a private way used by the petitioner and of course with his permission by the other residents of the above referred Khasra No.385. However, this does not mean that at any stage the petitioner has surrendered his right over the path in question in favour of the residents of the above referred Khasra No.385 or to other members of the public at large. The finding arrived at by the Criminal Courts are, therefore, not sustainable in law. The learned Magistrate while proceeding under section 133 Cr.P.C, has usurped the functions of the Civil Court by declaring the disputed property as a public place. Under law, this cannot be done by the learned Magistrate while exercising his powers under section 133 Cr.P.C. The course open to respondent No. 3 under law was that he should have gone to the Civil Court and should have obtained a declaration from there showing that the property in question does not vest in the exclusive ownership of the petitioner but on the contrary, the property belongs to the general public.
6. Respectfully following the rule laid down in Nur A.I Shah v. Natha (A.I.R. 1927 Lahore 745), I have come to the conclusion that the impugned orders passed by the respondents No.1 and 2 suffer from legal infirmities and jurisdictional defects. Accordingly, the impugned orders passed by the respondents No.1 and 2 are declared without lawful authority and of no legal consequence. The respondent No.3, if so advised, may move the Civil Court for the redressal of his greivances, if any, as required by law. Resultantly, this petition succeeds and is allowed leaving the parties to bear their own costs.