This judgment will dispose of this revision petition as well as connected Revision Petition No.1671- D/83 titled Lahore Municipal Corporation v. Anwar Hussain and others as both of them arise out of the common and concurrent findings involving similar points of law and facts.
2. The brief facts are that respondent No.1/plaintiff filed a suit of declaration-cum-permanent injunction that he was the owner of a unit situated in property No.SE-9-R-58. Brandreth Road, Lahore and was entitled to the use of passage shown in letters ABCD in the map attached with plaint. As a consequential relief it was prayed that the petitioners/defendants and respondent No.2/defendant be directed to remove the illegal construction raised on the passage and be restrained from obstructing the use of the aforesaid passage. In the context it was alleged that the passage framed part of the unit consisting of a room which was allotted to the plaintiff by the Settlement Authorities, after due inquiry and spot inspection.
3. The suit in the Court below was resisted on the ground that it suffered from misjoinder of necessary parties and was not otherwise competent, that the civil Court had no jurisdiction and that the suit was hit by the. Principle of res judicata as a suit filed by the plaintiff/respondent on the same cause of action was dismissed previously. The right of way as claimed by the plaintiff was denied by the contesting defendants. Lastly it was contended that the suit was time-barred
4. The learned trial Court framed the following issues:
(1) Whether the suit is bad for misjoinder of necessary parties?
(2) Whether the suit is not competent?
(3) Whether this Court has the jurisdiction?
(4) Whether the suit is hit by a previous decree?
(5) Whether the plaintiff has got a right of way from the disputed spot?
(6) Relief.
All the issues afore-mentioned were decided against the defendants.
S. An appeal was filed, which was dismissed by Mr. Naveed-uz-Zafar Malik, the then learned Additional District Judge, Lahore vide his judgment dated 4-6-1983 whereby the judgment and decree dated 12-9-1982 passed by Mr. Sher Zaheer Ahmad Khan, the then learned Civil Judge 1st Class, Lahore were-affirmed.
6. The learned counsel for the petitioner/defendants did not press the finding on Issues Nos. l to 3 but contended that the dismissal of the previous suit created res judicata. Likewise it was submitted that the learned Courts below wrongly relied upon Article 142 of the Limitation Act to hold that the suit was within time. In fact Article 144 of the Limitation Act ought to have been invoked to find out whether the suit was within time or not. In this context, it was alleged that the limitation would have started from the date of dispossession of the property in question. Besides that the property in question was owned by an evacuee non-Muslim and formed part of the compensation pool created for evacuee properties and as such no right of easement or prescription could be claimed in such a property as the same vested in the Federal Government. It was also urged that the plaintiff relied upon inconsistent pleading by raising two mutually destructive pleas that he was owner of the property being a transferee from the Settlement Authorities and at the same time raised plea of easement regarding use of the passage. It was accordingly contended that such mutually destructive claims could not stand together under the law and no relief was ought to be given. Reliance was placed on; _
(i) Budha and others v. Ghulam Shah reported as PLD 1963 Supreme Court 553;
(ii) Qazi Muhammad Ishaq v. Abdul Waheed reported as PLD 1975 Peshawar 82;
(iii) Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial, Trading Estates Ltd. And another reported as 1991 SCM R 119; and
(iv) Maulvi Noor Muhammad v. Sheikh Abdul Qadeem reported as 1995 SCM R 522 (Supreme Court of Pakistan).
7. The contentions raised by the learned counsel for the petitioner/defendants were also supported by the learned counsel for respondent No.2.
8. The learned counsel for the contesting respondent No.1 i.e. Plaintiff, however, contended that the principle of res judicata was not attracted to the facts of the case. The passage in question was allowed to the plaintiff by the Settlement Authorities as a way to his property. As such the question of easement or prescription could not arise. The dismissal of the previous suit allegedly did not create any estoppel against the plaintiff nor the present suit was barred. In this context it was submitted that previous suit was not tried on the same cause of action and as such its dismissal was merely the rejection of plaint. Rather the plaintiff was directed first to seek declaration regarding his right. It was in pursuance of that order. That the contesting respondent had first to get his title cleared and then file the present suit for declaration-cum-permanent injunction.
9. On facts it was contended that a question had arisen whether the property in question was divisible or not. The matter went up to the Settlement Authorities, who decided that the room occupied by the respondent/plaintiff would become a separate and independent unit, if the passage lying in its front i.e. The disputed passage was allowed to be used. It is in that situation that the passage in question was allowed to be used and the room in question was treated as an independent unit and as such transferred to the respondent/plaintiff. It was alleged that in that event the question of any alternate passage as agitated by the petitioners would not arise because the transfer of room in question was made to the contesting respondent/plaintiff only on the ground that the passage would be available. The orders of the Settlement Authorities therefore, conferred title on the petitioner not only to the room transferred to him, but to the right of passage.
The plea that since the property vested in the Federal Government, therefore, there was no question, of easement or prescription would become irrelevant.
10. The arguments raised above will show that the original property belonged to one evacuee named Radha Kishan. It consisted of different units, but the unit transferred to the petitioner formed part of Survey No.SE-9-R-58. Its access was through a street shown as ABCD in the map attached to the plaint and further described in its para. No.4. The documentary evidence as well oral evidence brought on record proved the contention of the respondent/plaintiff that he was transferred the property in question on account of the decisions taken by the Settlement Department that the room in his possession would become independent unit if passage in question is allowed to him. In this regard the learned trial Court as well as the learned lower Appellate Court rightly relied upon the oral as well as documentary evidence brought before it. A perusal of the record shows the respondent/plaintiff was transferred a single room vide PTO No.744270 dated 26-1-1961 and the courtyard in front of the quarter of property No.SE-9-R-58. That property number included the room allotted to the respondent/plaintiff. However, later on the dispute over the use of the passage arose whereby the matter was taken back to the Settlement Authorities, whereby the case had to be remanded to determine whether the room allotted to the respondent/plaintiff could be treated as an independent unit and could be separated through a division from the other property situated in the abovementioned survey number. In the light of the remand order Exh. P/4 the spot inspection was made which led to the passing of an order dated 26-1-1961 Exh. P/5 whereby it was observed that the property was divisible and it had its own approach leading straight to the room in question. It was only due to the availability of this passage that the room was treated as an independent unit and was liable to be transferred to the respondent/plaintiff and accordingly the same was done on NCH Form. It was in the light of these facts that permanent right of that transferred unit was conferred on the respondent/plaintiff by the Additional Settlement Commissioner vide his order dated 20-9-1,962 i.e. P 6.
11. There is yet another factor to support that there was an encroachment on the passage and in that context, the Lahore Municipal Corporation, Lahore had to take action to demolish that encroachment to create the passage. In this respect reliance was placed on the order dated 23-8- 1961 (Exh. P/2) passed by the Chairman, Lahore Municipal Corporation, Lahore and affirmed by the Commissioner, Lahore Division, Lahore as Appellate Authority vide his order dated 18-10-1962 (Exh.
P/3). It is thus clear that the respondent/plaintiff had acquired a permanent right regarding the user of the passage as without it the room transferred to him remained incomplete unit. The question that the property remained to be the property of Federal Government would not be relevant after it had been permanently settled with the above stipulations. The question of easement or prescription would also lose its force in the light of above finding of the Settlement Authorities that the passage was to be given by way of necessity to make-the room of the respondent/plaintiff as independent unit. The question of limitation is also closely linked with the question of user of passage. The respondent/plaintiff had now even made a prayer for the removal of the encroachment existing on the passage in question. Any blockade, stoppage or resistance to the use of the passage would create a continuous cause of action and as such the suit of the respondent/plaintiff would not become time-barred as advocated by the learned counsel for the petitioners/defendants.
12. In view of the above, the impugned orders do not suffer from any patent illegality so as to call for interference on the revisional jurisdiction of this Court. Both the revision petitions are accordingly dismissed. The parties are left to bear their own costs.