' Mumtaz Ali and his son and daughter Riaz Ali and Mst. Hanifan Begum respondents-plaintiffs filed a suit against Muhammad Hussain, Noor Hussain, Zafar Mahmood petitioners-defendants as well .
As Municipal Corporation, Sialkot respondent-defendant for a permanent mandatory injunction. It was contested by the petitioners-defendants. The Civil Judge dismissed the suit on 27-6-1985.
However, the appeal of the plaintiffs-respondents was accepted by the learned Additional District Judge, Sialkot vide his judgment dated 11-3-1986 and the suit decreed. The decree is the subject of the present revision petition.
2.. The case of the plaintiffs in the plaint was that they were the owners of 1 Kanal and 15 Marlas of land of Khasra No,2206 in village Mianapura, Sialkot City. Out of it 8 Marlas have been sold to Mst.
Rabia and 13 Marlas to Mehr Din who had constructed their houses. The rest of the 14 Marlas belonged to them (the plaintiffs). On its North was a street, on the East the house of Mst. Rabia Bibi, on the West the house of Mehr Din and on the South there was an open plot. Building plan had been sanctioned in their favour by the Municipal Committee, Sialkot. The petitioners-defendants had started encroaching thereon since about two days by three feet on the East and 13 feet on the West including a strip of 10 feet wide from the street. The action of the petitioners-defendants in this regard was dubbed as illegal by the Municipal Corporation/Municipal Committee. In their sketchy written statement the petitioners-defendants, however, pleaded that they were the owners of Khasra No,2089, were in possession and enjoyment thereof, the plaintiffs-respondents had already filed a suit which had been dismissed on 23-11-1974, thus the present suit was barred by res judicata. On merits their case was that they had raised construction over their own land in Khasra No,2089 and had not encroached upon the respondents-plaintiffs' plot or the street of the Municipal Committee.
2. Qn the pleadings of the parties the following issues were settled:-
(1) Whether the suit is not maintainable in its present form in view of para. No,3 of the preliminary objection? OPD.
(2) Whether the suit is barred by the principle of res judicata? OPD.
(3) Whether the plaintiff has no locus standi and cause of action to bring this suit? OPD.
(4) Whether the plaintiff is owner in possession of the suit property? OPP.
(5) If issue No,4 is proved, whether the defendants have made encroachment as alleged in para. In the plaint? OPP.
(6) Whether the defendants have encroached upon the street of M.C. Sialkot if so, with what effect?
OPP.
(7) Whether the defendants Nos,2 and 3 are entitled to special costs under section 35-A, C.P.C.?
OPD.
(8) Relief.
3. The learned Civil Judge answered issues Nos,1 to 3 against the plaintiffs. On issue No,4 his finding was that the plaintiffs were owners in possession of Khasra No,2206 and under issues Nos,5 and 6 his conclusion was that the respondents-plaintiffs were not entitled to any relief. In appeal the learned District Judge reversed the findings. According to him after the dismissal of the previous suit the Municipal Committee had demolished the encroachment made by the petitioners- defendants and now when again the encroachment was tried to be made, the respondents- plaintiffs had a fresh cause of action, the suit was competent, they had the locus standi to file the suit and on issues on merits (Issues Nos,5 and 6) there was more than sufficient evidence that the defendants-respondents had made encroachment.
4. Learned counsel for the parties have been heard and record gone through with their help.
Learned counsel for the petitioners has unsuccessfully tried to beat about the bush but without any success. No substantial contention or question was raised by him for reconsideration by the Court in revisional jurisdiction. It is clear from the judgment of the learned Additional District Judge that not only notice was issued to the petitioners by the Municipal Committee to remove their encroachment, rather order for the demolition of the encroachment was also passed by the Administrator. There is oral evidence on behalf of the petitioners-defendants that no such encroachment was removed but neither the notice nor the order of the Administrator have been filed on the record of this revision petition though exhibited in the learned lower Court. Hence the conclusion arrived at by the learned Additional District Judge cannot be interfered with in revision.
Even the other exhibited documents were not filed with the revision petition by the petitioners as required under section 115, C.P.C. To make the understanding of the case easier for the Court, learned counsel tendered at the bar copy of the site-plan (Exh.P.2). Appreciating the evidence, judgment and the pleadings of the parties with its help it is clear that the plot of the petitioners- defendants was on the North and that of the plaintiffs-respondents on the South. In between is running a thirty feet wide Municipal street. It means that they have so conducted themselves that by jumping over the street they have started raising construction not only in ten feet wide passage from the street, but on a portion of the respondents' plot three feet on the East and 13 feet on the West. They have not filed any site-plan of their house indicating that the street was made to run through their Khasra leaving the disputed strip on the South of the street.
5. For all the above discussion the revision petition is dismissed being without any force with costs.