Haji Muhammad Azeem, since dead and. Represented by Mohammad Nawaz and 6 others, instituted a suit against Mohammad Nawaz and his brother Shah Nawaz, for a declaration to the effect that a path-way and a drain at the back of his house was owned by him and that installation of a door at point 'Bey' and closure of the drain by the defendants which took out the flow of the rain water of eaves is without lawful authority and illegal, and also by way of consequential relief prayed for issuance of perpetual injunction so as to restrain the defendants from closing the said path and the drain and for removal of the door.
2. It is alleged in the plaint that the plaintiff had left some space at the back of his house on the northern side wherein he had constructed a pacca drain for discharge of rain water from the roof of his kothas and had also been using this space as pathway. The grievance of the plaintiff is that the defendants while constructing their house at the back of the plaintiffs' house have amalgamated the said space and have installed a door and thus have closed the discharge of water and the pathway. Hence the suit for the reliefs noted above.
3. The defendants, in their joint written statement, contested the claim of the plaintiffs that there was any space for discharge of the rain water of the roof of their house. It was averred that the plaintiffs, by virtue of the suit, intended to have an excess through the house of the defendants and to use the courtyard of their house as a drain for the discharge of their rain water. They have also maintained that the plaintiffs have illegally installed the eaves for the discharge of rain water into the courtyard of the defendants, Few legal objections were also pleaded in the written statement.
The pleadings of the parties thus raised gave rise to the framing of as many as five issues including the relief. For the purposes of this revision, however, the following issue is relevant: "Whether the plaintiff is entitled to the decree for declaration and permanent injunction as consequential relief."
4. The parties led their respective evidence. The trial Court dismissed the suit vide judgment and decree dated 15-7-1987. The plaintiffs, feeling aggrieved, filed an appeal before the District Judge, which was also dismissed, vide judgment and decree dated 17-2-1988. Hence this petition in revision.
5. S. Mushtaq Ali Shah, learned counsel. For the petitioners, in support of the petition has raised the following points (1) that the findings of the Courts below are based on misreading and non-reading of evidence resulting in miscarriage of justice; (2) that the observations of the learned Trial Judge on issue No.4 are based on no evidence, particularly to the effect the report of the Local Commissioner was not objected to, because both the Courts below have failed to appreciate that the plaintiffs/petitioners had filed objections against the report of the Commissioner and the learned Appellate Court has thus exercised the jurisdiction not vested in it by law; and (3) that the defendants have failed to cross-examine the witnesses of the plaintiffs on material point which was tantamount to admit the evidence of the witnesses. Reference was made to Article 1.33 of Qanun-c-Shahadat, 1984.
5-A. On the other hand, Mr. Abdul Latif Baluch, Advocate, representing the respondents, argued that the findings on issue No-4 recorded by the learned two Courts below are correct. The principal argument of the learned counsel for the petitioners was also controverted by saying that the petitioners could not take benefit of the weakness of the case of the respondents. It was lastly urged that the concurrent findings on facts recorded by the two Courts below being consistent with the evidence on record could not be interfered with in revisional jurisdiction by this Court.
6.During the pendency of the suit, a Local Commissioner was appointed by the learned Trial Judge for inspection of the spot and report as to whether the eaves of the house of the plaintiffs- petitioners had been installed towards the house of the respondents, and also to point out as to whether a pacca drain, as alleged, had been constructed alongwith the rear wall of the house of the plaintiffs-petitioners for the discharge of the rain water of the roofs of their house. The report of the Commissioner, although objected to by the petitioners, j revealed that the eaves discharged rain water into the courtyard of the house of the respondents and there were no signs of any pacca drain on the spot. The' objections raised to the report of the Local Commissioner being without substance were rightly overruled by the trial Court. Both the Court below have found it as a fact that there was neither a pacca drain for the discharge of rain water at the back of the house of the petitioners, nor the door had been installed in the space claimed to be the property of the petitioners. I have gone through the ocular evidence adduced by the parties with the assistance of the learned counsel on both sides. No exception can possibly be taken to these findings. It is a case of neither misreading or non-reading of evidence. The plaintiffs-petitioners have miserably failed to substantiate their claim by any evidence whatsoever. There is no case of failure to cross- examine any witness on any material point and, therefore, the provisions of Article 133 of Qanun-e- Shahadat, 1984 are not attracted to the case in hand.
7. In view of what has been stated above, the concurrent findings arrived at by two Courts below on facts are unexceptionable. This revision petition has no force and is, therefore, dismissed with no order as to costs. 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.