' The brief facts out of which the present revision petition arises are that the respondent filed suit for permanent injunction against the petitioner on 11-3-1989. The contents of the plaint reveals that the respondent is owning Ahata measuring about 6 Marlas in Mohallah Sadiqabad. Boundaries of the aforesaid plot/Ahata with the description are as follows:--
(1) North House of Muhammad Sadiq
(2) South House of Nazar Ahmad.
(3) East Public Street 11 feet.
(4) West Public street 6 feet.
' The contents of the plaint further reveal that eastern side of his Ahata is thoroughfare of width of 11 feet is existing for the ages while the petitioner/defendant is forcibly raising wall, and Khurlies in the aforesaid passage. The present petitioner filed written statement controverted the allegations levelled in the plaint with the preliminary objection that since the respondent/plaintiff has alleged the suit passage as thoroughfare the suit is not procurable without permission of the learned Advocate-General of the Punjab Province by virtue of section 91, C.P.C. Out of the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the suit is barred under section 91 of the Civil Procedure Code? OPD.
(2) Whether the suit is liable to be dismissed in view of preliminary objection No,2? OPD.
(3) Whether the suit does not lie as no declaration has been sought for with regard to thoroughfare? OPD.
(4) Whether the plaintiff is stopped to file the present suit? OPD.
(5) Whether the plaintiff has approached this Court with clean hands? OPD.
(6) Whether the suit has been filed with mala fide intention and harass the defendant, if ' so, whether the defendant is entitled to cost against the plaintiff under section 35-A of the C.P.C.? OPD.
(7) Whether the report of the Local Commissioner is liable to be set aside? OPP.
(8) Whether the plaintiff has suffered in view of the construction raised by the defendant? OPP.
(9) Whether the plaintiff is entitled to the decree as it is prayed for? `OPP.
(10) Relief.
' The learned trial Court dismissed the suit vide judgment and decree, dated 21-7-1992. The respondent being aggrieved filed appeal before the District Judge, Sialkot who entrusted the same to Additional District Judge, Sialkot. The learned Additional District Judge, Sialkot accepted the appeal vide judgment and decree, dated 19-2-1996. Hence the present revision petition.
2. The learned counsel of the petitioner stated that judgments of both the Courts below are at variance he further stated that the First Appellate Court did not advert to the reasoning of the trial Court. He further stated that the recital in the two sale-deeds Exh.D.1 and Exh.P.3 as also the revenue papers placed on the record to establish that there does not exist any passage at the eastern side of the land purchased by the petitioner has been completely misread by the First Appellate Court.
He further stated that the learned trial Court decided Issue No,1 in favour of the petitioner with cogent reasons that as the suit is not maintainable by virtue of section 91 of the C.P.C. But the First Appellate Court reversed the finding of the trial Court without cogent reasons. He further stated that the judgment of the First Appellate Court is the result of misreading of the evidence on record or non-reading of the record. The suit for permanent injunction was not maintainable, as the proper and efficacious remedy in present case would be a suit for declaration possession and injunction and not injunction alone. He further urged that suit is also hit by section 13 of Easements Act, 1882 but the learned First Appellate Court did not advert to this aspect of the case.
3. The learned counsel of the respondent supported the judgment of the First Appellate Court and hotly contested case. He stated that the, first proper appreciation of evidence on record reversed the finding of the trial Court with cogent reasons. He further stated that section 91, C.P.C. Is not attracted in the present case and the learned First Appellate Court rightly reversed the finding of the trial Court on Issue No, 1 with judicial reasons. He further stated that section 13 of the Easements Act is also not attracted. He summed up his arguments that, the suit for permanent injunction is rightly filed by the respondent and suit for declaration is not proper and efficacious remedy for the respondent.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. The contents of the plaint show that the passage is claimed as public way and it was on this basis that the trial Court, held the passage to be an open public way which finding has been reversed by the lower Appellate Courts without adverting toy the mandatory provisions of section 91 of the Civil Procedure Code. The trial Courts on the ground that if the claim was that of a public way the suit came within the mischief of section 91 of the Civil Procedure Code. Since nuisance is alleged in relation to a public lane, it would be case of public nuisance and it is well-settled that a private individual has no right of action in respect of the public nuisance unless he can show that he has sustained some damage over and above that suffered by the community at large. Otherwise normally in the case of public nuisance the suit could be brought either by the Advocate-General or by two or more persons having obtained his consent in writing as envisaged by section 91 of the Civil Procedure Code. Section 19(2), C.P.C.
Would also show that there would be no power to a private person bringing a suit for public nuisance in which he has suffered partial damages. It is pertinent to mention here that the respondent/plaintiff fails to mention special damages in the contents of the plaint as well as through the oral evidence and the documentary evidence, therefore, section 91 is attracted in full force. Even if it assumed for the sake of arguments that the apprehended wrong was likely to affect only the residence of the area that would also constitute public nuisance so as to attract the provision of section 91(1), C.P.C., I am fortified by the reported judgment AIR 1936 Oudh 134, The learned trial Court after appreciation of evidence has given finding of fact that in substance it is a case of public nuisance rather than of private nuisance but the learned First Appellate Court derversed the finding without adverting to the evidence on record. In case contents of the plaim, sale-deed, dated 30-4-1988 Exh.P.3 in favour of Muhammad Khalil along with Nazir Ahmad, sale- deed in favour of present petitioner Exh.D.1 are read together then it becomes crystal clear that the dispute relates to public nuisance in a thoroughfare therefore, judgment of the 'First Appellate Court is not in accordance with the mandatory Revision of section 91(1), C.P.C. And the law laid down by the Hon'ble Supreme Court in' Zarif Ahmad's case 1986 SCM R 423. The suit was filed in violation of section 91(1), C.P.C., therefore, finding of First Appellate Court on Issue No,1 is not sustainable the same is set aside and the finding of the trial Court is upheld. Since the suit was not competent, therefore, I am not inclined to discuss the other contentions of the learned counsel of the parties.
' In view of what has been discussed above the revision petition is accepted. The judgment and decree of the First Appellate Court is hereby set aside and the judgment and decree of the trial Court is upheld. There shall be no order as to costs.