' This civil revision arises out of a suit instituted by the respondents against the petitioner on 6-6- 1978 in the Civil Court at Lahore seeking a declaration to the effect that a duly sanctioned 30 feet wide street connecting Shish Mahal Road with Ihata Sardar Shah and other localities onwards and passing along-side the property of the respondents continued to exist as such and the petitioner had no claim, right, title or dominion over the land comprising the street and he was not entitled to transact about the street land or to block, obstruct, encroach upon or interfere with the street and the passage in any manner whatsoever, for all times to come along with a permanent injunction for restraining the petitioner from committing any act constituting a public nuisance, especially in violation of the sanctioned Scheme and declared position of the street and to remove all encroachments including the building material from the side of the street.
2. The suit was contested by the petitioner who after raising the Preliminary objections as to the maintainability of the suit etc. Maintained that the property in dispute was owned by him which had never been used as a thoroughfare.
3. The learned Civil Judge dismissed the suit with costs by holding that the disputed strip of land was not a public passage or a public street. The same was within the ownership of the petitioner himself.
4. Being aggrieved of the judgment dismissing the suit the respondents filed an appeal which came to be decided by the learned Additional District Judge, Lahore who by observing that even if the contention of the petitioner was accepted that the suit of the respondents in so far as the right of public was not maintainable under section 91 of the C.P.C., the arguments of the learned counsel for the respondents could not be brushed aside that they had claimed private and personal rights in the disputed, street as contained in para. No,3 of the plaint, regarding which no issue had been framed to decide the matter in the light of the averments as contained therein. In his opinion the trial Court erred in law in not framing the required issue about the existence of private and personal right of the respondents as asserted in the plaint. The same had prejudiced the case of the respondents. He further opined that no proper adjudication could be had without framing of an issue relating to the right of the respondents. Issue No,4 that whether a 30 feet wide street as averred in the plaint was sanctioned by the civic authorities of Lahore, if so whether the petitioner was interfering with the user and other public rights thereon, was not properly cast so as to cover the proposition involved. He framed Issue No,4-A, "whether the act, if any, of the defendant has affected the private and personal right of the plaintiffs as contained in para. No,3 of the plaint, if so, its effect?" He accepted The appeal, set aside the judgment of the learned Civil Judge and remanded the case to him for a decision afresh keeping a due regard for the said issue framed by him to be reached by the end of the month of October, 1986. This is vide judgment dated 21-7-1986.
5. The learned counsel for the petitioner has contended that the-A earned Additional District Judge acted wrongly in the exercise of his jurisdiction 'in casting Issue No,4-A as the respondents in a suit filed to prohibit the obstruction to the user of public passage could not claim enforcement of personal right independent of the right claimed for the general public because the necessary foundation to claim a personal right had not been laid down in the plaint.
6. The foundation for the personal right to use the passage was laid down by the respondents in their plaint in para. No,2 where they had mentioned that they had raised construction over their property which was situated at busy commercial-cum-residential center of Lahore. They were in actual use and occupation of the property ever since that vested in them and had thus come to acquire vital rights and interests in the property and that's situation and user and then in para. No,3 the existence and availability of the said way (now duly sanctioned street) was one of the fundamental civic amenities for the local property-holders including the respondents thus, any disturbance or interference with the said way and passage through that would not only adversely affect the private and personal right of the respondents but also would be a source of nuisance to the public at large, so this fact is clear that a private and personal right had also been claimed which could he nothing but a material proposition of fact between the parties in view of the denial of the same by the petitioner in his written statement, therefore, as to the said assertion and variance the learned Additional District Judge rightly framed issue No,4-A which requires adjudication even if the suit in other respects is regarded as not competent. The insistence of the learned counsel for the petitioner that the respondents had not mentioned in their plaint that they had enjoyed the passage in the exercise of their personal right for a period of 20 years maturing into an easement cannot be given way to since that can be substantiated by adducing the evidence keeping a due regard as to the art of the drafting of pleadings in this country. Such a technicality cannot be regarded as fatal to a cause as the respondents would not be entitled to claim a passage unless they prove that an easement of the nature did exist. The decisions cited by the learned counsel for the petitioner Abdullah and others v. Muhammad Amin (PLD 1968 Lah.
1235) and Muhammad Saeed v. Muhammad Umar Khan and another (PLD 1987 Lah. 63) do not help him in view of the question in issue as expressed above.
' This civil revision is dismissed in limine being without any substance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.