' This revision petition is directed against judgment and decree dated 13-12-1986 passed by the learned Additional District Judge, Sialkot accepting the appeal of respondent against judgment and decree dated 3-6-1975, passed by the learned trial Court decreeing the suit of the petitioners for possession after demolition.
2. The facts giving rise to this revision petition in brief are that according to the case of the petitioner set up in the plaint the shop in dispute as shop No,1337 being evacuee property was transferred by the Settlement Department to one Abdul Hayee from whom the petitioners purchased the same through registered sale-deed. A Chaubara over property No,6/1343 which was also evacuee property was transferred by the Settlement Department to the respondent, The petitioners averred in the plaint that the respondent illegally constructed a latrine and a bath on the roof of their shop. Originally a suit for declaration and injunction was filed which was converted into suit for possession after demolition by amending the plaint with the permission of the Court, The respondent contested the suit. In the written statement it was pleaded that the roof of the shop was under the use of the respondent for the last 20 years and was part of Chaubara transferred to them as its courtyard and bath and latrine were present from the very start and they were situated over Shop No,6/1338. The learned trial Court on the pleadings of the parties framed the following issues:--
(1) Have the plaintiffs no locus standi to bring this suit?
(2) Has this Court no jurisdiction to try this suit?
(3) Is this suit not properly valued for the purposes of court fee and jurisdiction. If so, what is the correct valuation?
(4) Are the plaintiffs estopped by their conduct from bringing this suit?
(5) Is the plaintiff owner of the roof of Shop No,6/1343 belonging to the defendant?
(6) Relief.
' The then learned Civil Judge who was seized of the suit decreed the suit by judgment dated 2-3- 1970. This was challenged in appeal by the respondent before the learned District Judge, Sialkot who through judgment dated 21-10-1971 accepted the same and remanded the case after framing the following two additional issues:- "4-A.Is the suit of the plaintiffs maintainable in its present form?
4-B. Whether the defendant had been using roof in dispute for a period of more than 20 years. If so, what is its effect?
' After remand, the learned trial Court further framed another issue as issue No,4-C which is as follows:- 4-C Whether the suit is properly valued for the purposes of court-fee and jurisdiction. If not so, what is the correct valuation?
' After recording and appraising evidence produced by the parties on all these issues the learned Trial Court decided issue No,5 in favour of the present petitioners under which it was held that they were owners of Shop No,1337 and its roof and that roof of this shop was not part of Chaubara of the respondent. In view of this finding issue No,1 was also decided in favour of the petitioners holding that the petitioners had locus standi to bring the suit. Under issue No,2 it was held that both the properties having been permanently transferred to the parties, therefore the Civil Court had the jurisdiction to determine the dispute between the parties regarding their rights in the properties.
Issues Nos.3 and 4-C were decided in the manner that it was held that the value of the suit fixed at Rs,15,000 for purpose of court-fee and jurisdiction was correct. Under issue No,4 it was held that there was no evidence on this issue therefore the same was decided against the respondent.
Under issue No,4-A it was held that this, objection was about maintainability of the suit when initially it was filed only for a decree for permanent injunction and since after amendment of the plaint the prayer for decree for possession after demolition of construction had been made therefore the objection about non-maintainability of the suit was not available. Under issue No, 4-B it was held that by mere use of roof of the shop for a period of 20 years as alleged, the right of easement to use that roof was not established inasmuch as both the properties being evacuee and vested in the first instance in the Custodian and then through Notification dated 21-8-1959 absolutely in the Government and right of easement against Government property could only be acquired after continuous use of 60 years. It was also held that bath and the latrine in question were constructed by respondent in the year 1968. It was also held that use of the roof of the shop for a period of more than 20 years was also not proved. Issue No, 4-B was therefore answered against the respondent. As a result of these findings the learned trial Court through judgment and decree dated 3-6-1975 decreed the suit. The respondent feeling aggrieved against the said judgment and decree of the learned trial Court filed appeal before the learned Addl. District Judge, Sialkot which has been accepted through judgment and decree dated 13-121986 impugned in this revision petition. The learned Additional District Judge, in the impugned judgment reversed the findings of the learned trial Court on issues 1,4-B and 5. The findings on the other issues according to the observations made in the. Impugned judgment were not contested by the parties. The learned counsel for respondent has also not contested the findings on the other issues before me.
According to the findings of the learned Additional District Judge the correct number of shop in dispute of the petitioners was 6/1338 which they purchased from Abdul Hayee who was its original transferee and that this shop and properties numbers 6/1338 to 6/1344 were owned by one evacuee namely Qaisra Devi and roofs of the four shops stood transferred to the transferee of Chaubara i.e. The respondent as courtyard of his Chaubara as its integral part being in possession of the respondent.
3. This revision petition has been directed against this judgment and decree of learned lower appellate Court.
4. I have heard learned counsel for both the parties. In the P.T.D. Exh. P1 issued in the name of Abdul Hayee by the Settlement Department the number of the shop in dispute transferred to him has been given as 6/1337 and owned by Puma Nath evacuee. The P.T.D. Issued in favour of respondent which was produced as Exh.D2 shows that Chaubara of property No,6/1343 owned by Bihari Lal evacuee was transferred to him. The P.T.O Exh. Dl issued to respondent before the P.T.D. Also recites that it was Chaubara of property No,6/1343 owned by Bihari Lal evacuee which was transferred to the respondent. There is an order passed by D.S.C. Produced in evidence as Exh. D5 produced by the respondent in which it was clarified that as a matter of fact the correct number of shop in dispute transferred to Abdul Hayee was 6/1338. This order also pertains to other property and it appears that the matter was taken by the D.S.C. As numbers of properties in the transfer documents of various properties were not correctly given. After appraisal of documentary evidence such as record of Property Tax Department pertaining to the year 1942 as also this order of D.S.C. Exh. D5 the learned lower appellate Court rightly concluded that the correct number of shop in dispute which was transferred to Abdul Hayee from whom the petitioners purchased was 6/1338. The petitioners have been non-suited only on the ground that the roofs of the four shops including shop in dispute were transferred to respondent as part of Chaubara transferred to them in property No,6/1343 as its courtyard being in his possession. In recording this finding the Court acted on assumption that whatever was in his possession was transferred to him and since he was also in possession of the roofs of the shops therefore, the same also stood transferred to them with Chaubara. He also appears to have been influenced by the fact, that roofs of the shops have no link through staircase therefore they formed part of Chaubara transferred to respondent as its courtyard.
5. I have gone through the record. It is demonstrably clear that the respondent was transferred only a Chaubara of property No,6/1343. Even if properties numbers 6/1338 to 6/1344 were also owned by the same evacuee who owned property No,6/1343, by no stretch of reasoning, it could be taken that roofs of the other properties were part of Chaubara of property No,6/1343 or was courtyard of this Chaubara. All the properties are independent properties and no portion of one property could be held to be an integral part of another property. The learned lower appellate Court assumed that the respondent was transferred whatever was in his possession in different properties which is based on acute misreading of the record. Exh. D2 the P.T.D. Of respondent does not show that the respondent was transferred whatever was in his possession. Even if it be assumed that he was in possession of the roofs of the shops including the shop in dispute, he was not transferred any portion of any other property, except Chaubara of property No,6/1343, and he could not be held to have been transferred any portion of any other property or roof of shop as part of this property. In the written statement filed by the respondent on 10-2-1969 to the original plaint in which decree for declaration and permanent injunction was sought, it was pleaded by the respondent that the bathroom and latrine in question were situated on shop No,1338. Abdul Ghafoor son of Ghulam Muhammad Butt when examined by. Respondent as his attorney as D.W. 4 whose evidence was initially recorded on 15-10-1969, admitted in the cross-examination that the Chaubara transferred to respondent was situated over the shops of Ghulam Nabi and Nawab Din. He also admitted that stair leading to this Chaubara is situated in between the shops of Ghulam Rasool and Nawab Din.
In the written statement filed on 20-4-1972 to the amended suit for possession after demolition it was also pleaded that latrine and bath-room were present from the very start and that the roof of the shop was part of the Chaubara transferred to the respondent. Abdul Ghafoor the said attorney of the respondent was again examined on 13-2-1975 as D.W.3. In this statement he stated that number of Chaubara transferred to respondent was 1337 and the same was transferred to him by the Settlement Department and he did not know the number of the shop in dispute. It is in the evidence of respondent that it was only the wall which was already existing on which further construction was raised about 8/9 years before. The learned lower appellate Court without properly dealing with the logic of findings of the learned trial Court that use of the roof of the shop for more than 20 years was not proved reversed the findings on issues 1, 4-B and 5 mechanically, after holding that roofs of the four shops were courtyard of. Chaubara of property No,6/1343 and transferred to respondent. I have examined the evidence of both parties on this point. The evidence of the petitioners inspires confidence. It was rightly held by learned trial Court that it was not proved that the roof of the shop was being used by the respondent for the last 20 years. It was also rightly held that the properties being evacuee easement right could not be acquired through user of property for less than 60 years. The respondent could not lay any claim over the roofs of the shops on the basis of transfer of a Chaubara of property No,6/1343, the shops being separate and independent properties. Even if all the properties were owned by one evacuee, the transferee of one specified property would not claim that the said transfer included in it a part of other property unless it was specifically so mentioned in the transfer document.
6. Having realized this difficulty, learned counsel for respondent submitted that in the P.T.D. Of Abdul Hayee Exit. P1 the number of shop in dispute was given as 1337 and unless this number was corrected as 1338 the suit was not maintainable. I am afraid, the argument is devoid of any force.
There is no dispute or doubt about the identity of property i.e. The shop in dispute having been transferred to Abdul Hayee from whom the petitioners pui chased through :sale-deed which is the shop in dispute. It has also so held even by learned lower appellate Court in the impugned judgment. Even in both the written-statements and the evidence of Abdul Ghafoor attorney of the respondent it was not disputed that it was in fact the shop in dispute which was in the ownership of the petitioners which was originally transferred to Abdul Hayee from whom the petitioners purchased because Abdul Ghafoor did not raise any dispute about identity of property on any ground in his statement. Even otherwise in the presence of order passed by D.S.C. Dated 16-1-1%7 Exh. D5 in which clarification was made that the shop in dispute which was transferred to Abdul Hayee bore property number 1338 instead of 1337 and this clarification having been made by an Officer of Settlement Department, the mistake of property number given in P.T.D. Stood rectified therefore the suit could be maintained by the petitioners as owners of the shop in dispute as such the mistake in the number of the shop in the P.T.D. Became insignificant. It is well settled law that if a single storeyed property is transferred to a person it will include transfer of its roof also and his ownership rights would extend to entire property including the roof upto the sky. Merely because there was no stair-case leading to the roof of the shop of the petitioners itself was not a ground to hold that the same stood transferred to respondent as courtyard of Chaubara of property No,6/1343. Even if it is assumed that transfer in favour of respondent was made with reference to his possession the same would mean whatever was in his possession in property No,6/1343 was transferred to him as his document of transfer mentioned only Chaubara of property No,6/1343.
7. For the foregoing reasons, the learned lower appellate Court misread and misconstrued the record in arriving at conclusions therefore, it acted with material irregularity and illegality in exercise of its jurisdiction. The findings of the learned trial Court were perfectly valid, based on careful and elaborate appraisal of evidence and the law. The revision petition is accepted, the impugned judgment and decree dated 13-12-1986 passed by learned lower appellate Court is set aside and that of the learned trial Court is restored. The parties are left to bear their own costs.