The dispute in this appeal relates to the use of. a staircase forming part of property No. 95 comprising four shops with one staircase on either, side for access to the roof of the said shops, situate in Rail Bazar, Maghiana., Tehsil and District Jhang. The property originally belonged to a non---Muslim. Muhammad Hussain, father of Muhammad Ashraf respondent --plaintiff, purchased 1/4th share out of the said property by a registered deed (copy Exh. P. 24), from the non-Muslim on the 9th of June 1943: After partition of the country, the non-Muslim co-sharer of the property became evacuee and so also his 3/4th share in the property. Muhammad Hussain filed a suit before the civil Court for partition against the evacuee and the Rehabilitation Department sometime in January 1953. The Rehabilitation Officer appeared in the case and on the basis of his statement (Exh. P. 5) recorded on the 20th of March 1952, to the effect that he had no objection to partition, a preliminary decree (Exh. P. 10) followed. A Local Commissioner was appointed by the civil Court and on the basis of his report, a final decree (Exh. P. 14) was passed by the Senior Civil Judge giving shop (No. 2 from the western side) to Muhammad Hussain with half share in the staircase on the western side adjoining the shop of Syed Muhammad Zahid. Similarly the staircase on the Eastern side fell to the use of the two occupants of the two other shops, under the Rehabilitation Department. When the decree was being executed, one of the occupants of the shops resisted and Muhammad Hussain was advised to seek declaration from the Custodian in support of his non-evacuee share in the property. Accordingly he approached the Deputy Custodian and was granted a declaration (Exh. P. 15) under section 18 of Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) on the 7th of January 1954, to the effect that his 1 /4th share in the property was non-evacuee. Subsequently when the evacuee share of the property was being transferred to various persons, the question of use of the two staircases and partition of the property was brought to the notice of the Chief Settlement Commissioner by the relevant Deputy Settlement Commis--sioner. His letter is Exh. P.
19. On the 16th of April 1962, the office of the Chief Settlement Commissioner advised the Deputy Settlement Commissioner by letter (Exh. P. 20) to treat the partition (Exh. P. 14) proposed by the civil Court prior to 1954, as acceptable in the circumstances of the case. It is thereafter that permanent Transfer Deeds in case of the three transferees of the evacuee share in the form of three shops were issued by the Settlement Department and one such Permanent Transfer Deed (Exh. D. 7) was issued in favour of Syed Muhammad Zahid, appellant (since died), on the 10th of December 1962. A Provisional Transfer Order had been issued in his favour earlier on the 8th of October 1960, substituting his name on the 8th of March 1961, as per Exh. P.
6. It may incidentally be mentioned that he is an auction-purchaser and the auction was confirmed in his name on the 16th of June, 1960.As per averments in the plaint Syed Muhammad Zahid refused permission to Muhammad Ashraf, plaintiff-respondent, to use the staircase abutting on the west of the shop of Syed Muhammad Zahid and the plaintiff was obliged to bring the present suit for a permanent injunction on the ground of his title to the extent of 1/2 share in the said staircase, as per decree of the civil Court and the acceptance thereof by the Chief Settlement Commis--sioner in April 1962. The suit was decreed by the trial Court and the appellant having remained unsuccessful in his appeal before the lower appellate Court has come up to this Court in Second Appeal.
2. The survey of the facts above shows that the respondent was admitted by the Custodian to have 1/4th share in the entire property as far back as 7th of January 1954. Since the evacuee share exceeded 50% in value of the whole property, the Custodian had the discretion to take possession and assume control of the entire property by virtue of the provisions of section 10 of Ordinance XV of 1949. The provisions of section 20(2)(o) of the Ordinance authorizing the Custodian to permit a Rehabilitation Authority to partition land or rights in land if a share in such land or rights consisted of evacuee property was no bar in the way of the Custodian to have undivided immovable property partitioned through a civil Court by a partition suit. Mr. Bajwa, learned counsel for the respondent contends that the decree of partition by the civil Court passed on the 4th of July 1952, on a concessional statement by the Rehabilitation Officer should be viewed from that angle and the subsequent declaration under section 18 of Ordinance XV of 1949 be ignored. Without going into that controversy, I find that after the declaration under section 18 of Ordinance XV of 1949 and before the property was finally transferred out of the Compensation Pool, the acceptance of the mode of partition as per decree of the civil Court (however incompetent) by the Settlement Department is of the nature of partition by private agreement between the joint owners. Malik Nisar Ahmad v. The Deputy Commissioner, Rahimyarkhan and another (PLD 1956 Lab, 429is in point. The appellant who holds a derivative title from the Compensation Pool has been transferred the shop on the western side next to that of the respondent subject to the said partition as per private agreement between the joint owners. Accordingly the appellant and the respondent both have equal right and title to the staircase to question and the respondent could enforce his right of use thereof through the civil Court. Alternatively, if the argument of the appellant that there has been no partition of the property is accepted, the respondent has -- share in all the four shops and the two staircases. In that case even, the respondent can enforce his right of use as a co-sharer, against the appellant, who alone is obstructing such use by the respondent without joining the two transferees of the two other shops because they are not obstructing the respondent and they do not have any right or title to any part of the property other than the shop transferred by the Settlement Department to either of them. Viewed from either angle, the respondent is a co-sharer to the extent of -- .Or --th in the staircase in question and as the appellant alone is interested in obstructing the respondent from use of the said staircase, the respondent is entitled to a permanent injunction restraining the appellant from interfering with his use as a co-sharer in the staircase. The argument that because the respondent has based his cause of action on an incompetent decree of the civil Court, the decree granted by the lower Courts is legally infirm, as it travels beyond the pleadings of the respondent, has no force. The cause of action has accrued to the respondent because of the obstruction made by the appellant in the use of the staircase in question. As already held above, the respondent being a co-sharer in the property to the extent of --th under the Deputy Custodian's order by which the Custodian as well as the Settlement authorities are bound or to the extent of -- as per private partition amongst the joint owners, the respondent is entitled to use of the staircase and that being the bundle of facts which he has to prove in support of his claim, the respondent. Has a cause of action and the decree granted is in complete accord with the pleadings and proof.
3. For the reasons above, the appeal fails and is dismissed. There will be no order as to costs.