Sardar Begum, daughter of Mehrajuddin acting for herself and as special attorney of Ghulam Ali Raza, Muhammad Yousaf Raza, Mst. Ejaz Hussaini, Mst. Mumtaz Hussaini, Mst. Altar Hussaini Mst.
Altar Hussaini sons and daughters of Mehrajuddin (hereinafter to be referred to as the plaintiffs) filed a suit against the appellant Faqir Muhammad, Muhammad Sharif son of Karim Bakhsh and Aziz Bakhsh son of Jan Muhammad (hereinafter to be referred to as the defendants). The need for mentioning the parties in the manner aforesaid has arisen as in this R.S.A. that was filed as far back as on 18-7-1990 no particulars whatever of the aforementioned plaintiffs and the aforementioned defendants except Faqir Muhammad, appellant (described in the memo. of parties as a petitioner) have been given despite the passage of more than three decades and also despite specific orders issued by this Court on 2-2-1999 to the learned counsel appearing for the said Faqir Muhammad appellant and further particulars called for vide order, dated 9-5-2000.
2. The said suit was filed on 12-3-1968. In the suit the plaintiffs averred that two rooms in House No.316/B-IV/5 situate in Sabzi Mandi, Sahiwal as shown in red colour in the plan attached to the plaint were transferred to Shafqat Ali, the late predecessor-in-interest of the said plaintiffs vide P.T.O. issued by the Deputy Settlement Commissioner, Sahiwal; that the remaining portions of the house were transferred to the said defendants in the manner depicted in the said plan. It was further stated in the plaint that late Shafqat Ali died on 3-3-1965 and till his death he had been using the internal courtyard, stairs and the water tap and also a roof of the said rooms and the latrine therein. The said property was ultimately transferred to the plaintiff as heirs of Shafqat Ali; that Sardar Begum plaintiff is in possession of the said two rooms; that the defendants, after the death of Shafqat Ali closed down two doors of the said rooms opening in the courtyard, thereby depriving the plaintiffs of the user of the water tap and stairs. It was further averred that the defendants have no right to use the latrine located on the roofs of said two rooms which are in possession of the plaintiffs; that the plaintiffs have forgone their right to use the courtyard and the top and stairs and they had called upon the defendants not to use roof of the said rooms or the latrine located thereon but they have refused. With these averments a decree for permanent injunction was claimed restraining the defendants from interfering with or using the roof of the said two rooms and the latrine thereon. The said Aziz Bakhsh, defendant No.3 died during the pendency of the suit and his daughters namely, Sardar Begum and Rashida Begum were imp leaded as his legal representatives. The defendants filed their written statement wherein they admitted the factum of the transfer of the said two rooms as mentioned in the plaint to Shafqat Ali. However, it was averred that the said Shafqat Ali had never used the roof of the said two rooms which is being used by the defendants. The precise contention was that the roof of the two rooms was not owned by Shafqat Ali, the said predecessor-in-interest of the plaintiffs. Issues were framed on 7-5-1968.
These were framed in Vernacular in the following terms:-- (1)Whether the Civil Court has no jurisdiction to try this suit?, (2)Whether the defendants have acquired a right of easement by a continuous use of the roof and latrine over the roof of the plaintiffs?
(3)Whether the plaintiffs are the owners of the roofs of their rooms?
(4)Relief, Evidence of the parties was recorded. The learned trial Court decreed the suit of the said plaintiffs vide judgment and decree, dated 20-1-1970. Against the said judgment and decree the said Faqir Muhammad son of Aziz Bakhsh and Muhammad Sharif son of Karim Bakhsh, filed a first appeal. The plaintiffs were made as respondents Nos. l to 6 . While the said daughters of Aziz Bakhsh were imp leaded as respondents Nos.7 and 8 in the said first appeal. The appeal was heard by learned District Judge, Sahiwal who dismissed the appeal. Present R.S.A. had been filed by the said Muhammad Sharif and Faqir Muhammad through Malik Amjad Hussain, Advocate.
3. The R.S.A. came up before this Court on 23-7-1970 when it was admitted and notice was ordered to be issued to the respondents. According to the order-sheet of this R.S.A. the case was once listed on 5-4-1971 probably on an office objection and it was reported by the learned counsel that the certified copies had been filed and the delay in filing the certified copies was condoned. Thereafter, the case was listed on 27-11-1997. It appears that through some inadvertence the appellants were marked absent while Ch. Nazir Ahmad, Advocate was marked present for the respondents. The case was listed on 17-12-1997 when none appeared and orders were issued for notice to the parties for 16-1-1998. On the said date against none appeared and the case was adjourned to 3-3-1998.
On the date again Ch. Nazir Ahmad, Advocate was marked present for the respondents and notices were ordered to be issued for 2:4-1998. Apparently, the case could not be taken up on the said date. C.M. No.947-C of 1998 was filed by Mehmood Ahmad son of Sh. Muhammad Siddiq under Order I, Rule 10, C.P.C. praying that he be imp leaded as a party. In the application it was averred that the said Mehmood Ahmad had purchased the share of said Mst. Mumtaz Hussain, Altaf Hussaim, Ghulam Ali Raza, Mst. Sardar Begum and Ijaz Hussain through five separate sale deeds.
Certified copies of these sale-deeds were appended with the application. These sale deeds were registered on 28-2-1981. This C.M. was listed on 1-10-1998 when it was ordered to be heard alongwith the main appeal. The matter was listed on 16-11-1998 when none appeared while there was a request for adjournment on behalf of the learned counsel for the appellants and the case was adjourned to 16-12-1998. On this date the case was adjourned on the request of the learned counsel for the appellants to 2-2-1999. It was on this date i.e. 2-2-1999 that it was noticed that except Sardar Begum daughter of Meraj Din no particulars whatsoever of the respondents in the appeal have been given in the memo. of appeal. It was also noted with concern that the said lapse has caused delay in the hearing of this matter. A direction was issued to the learned counsel for the appellants to file a correct up to date memo. of appeal within a fortnight. I have checked up the entire file of this R.S.A. and I find that this direction has not been complied with till date. Thereafter, the case was listed on 9-3-2000 when the learned counsel for the appellants absented himself while Sh. Ahsan Hafeez, Advocate put in appearance for Altaf Hussain and Ch. Ashgar Ali, Advocate appeared for the said Mehmood Ahmad. The R.S.A. was dismissed for Lion-prosecution. C.M. 366 of 2000 was filed for readmission of the R.S.A. which C.M. was allowed on 10-4-2000. The case was adjourned to 9-5-2000. On this date the case was listed and it was taken up by me. It was reported that Sardar Begum, Mst. Ijaz Hussaini and Ghulam Ali Raza, respondents are dead. I may note here that these particulars were taken from the memo. of parties in the first appeal before the learned District Judge, Sahiwal. Learned counsel for the appellants was directed to prove the list of L.Rs. of the said respondents so as to enable the office to effect their service for 24-5-2000. A warning was issued that in case, the needful is not done the appeal shall be dismissed against the said respondents. The needful of course was not done and instead C.M. 924 of 2000 was filed expressing that the said respondents Nos.1 and 4 were unmarried and left no legal heirs while the appellants could not trace out the legal heirs of the said Ghulam Ali Raza.
4. C. M. No. 947-C of 1998 is on record since 30-9-1998 and the appellants are on notice. Nothing has been brought on record to oppose the contents of the said C.M. and the learned counsel for the appellants is also not in a position to oppose the same. The C.M. is accompanied by certified copies of the registered sale-deeds relied upon by the said Mehmood Ahmad applicant in support of his contention that he had purchased the shares of the respondents mentioned therein. I, therefore, allow the C.M. and permit Ch. Asghar Ali, Advocate to address the Court.
5. Learned counsel for the appellants contends that the learned lower Courts while passing their respective judgments and decrees have failed to read the evidence on record. It is pertinently stressed that the several orders passed by the Settlement Authorities, copies whereof where produced by the appellants had not been taken into account by the learned lower Courts.
According to the learned counsel the judgments and decrees of the learned lower Courts suffer from misreading and non---reading of evidence on record and as such are contrary to law and liable to be set aside. Ch. Asghar Ali, Advocate for the said added respondent Mehmood Ahmad and Mr. Ahsan Hafeez, Advocate for Mst. Altaf Hussaini plaintiffs have supported the impugned judgments and decrees.
6. I have gone through the record of the learned trial Court with the assistance of the learned counsel present. Learned counsel for the appellants has taken me through documents Exhs. D.1 to D.6., The position that emerges is that the said house as a whole was in the first instance ordered to be transferred to the said Shafqat Ali, predecessor-in-interest of the said plaintiffs by the Deputy Settlement Commissioner and the Additional Settlement. Commissioner upheld the, same. Feeling aggrieved the appellants filed a revision petition which was heard by Sardar Ghulam Hassan Khan Leghari, Settlement and Rehabilitation Commissioner Camp at Montgomery. Vide order, dated 28- 7-1960 which is on record as Exh. D.4. The said revision petition was allowed and the said Settlement Commissioner held that since the house is served by roads on its South and East it can be divided and directed that portion in possession of the said three parties i.e. appellants in this appeal and the said Shafqat be transferred to them. It appears that the said Aziz Bakhsh feeling aggrieved filed a writ petition in this Court which was allowed on 1-4-1966 and it was directed that the portion in possession of Aziz Bakhsh should be transferred to him. The matter was then taken up by the Deputy Settlement Commissioner, Sahiwal who vide order, dated 8-7-1967 apportioned the total rent of the house amongst the said three contesting parties as follows: --- (1)Faqir Muhammad, Rs.15 Muhammad Sharif (appellants)
(2)SardarBegum etc. heirs of Shafqat Ali (3)Aziz Bux A revised appendix and P.T.Os, were accordingly issued. It was also observed in the said order that the said Aziz Bakhsh is in possession of a room and small veranda. The house was then transferred to the said three parties. EXh.D.I is an application of Shafqat Ali filed by him on 19-6-1958 complaining that the said Aziz is not letting him to enter the courtyard to get water from the tap. On this application a report was made by some Inspector on 20-6-1958 which is Exh. D.2 who reported that Shafqat Ali is in possession of two rooms and the remaining house is with the other parties. It was recommended that since Aziz Bakhsh etc. do not let Shafqat Ali enter the courtyard some portion of the courtyard be given to Shafqat Ali. It was also reported that Shafqat Ali cannot go on the roof as the stairs are in possession of the others. This recommendation of the Inspector did not find favour with the Rehabilitation Officer who vide order, dated 23-10-1958 (Exh.D.3) dismissed the said application. According to the said officer the opening of the said doors of the two rooms leading the courtyard would cause trouble to the Pardanashin ladies of the other parties. Finally, the learned counsel refers to the order, dated 6-2-1968 of Additional Settlement Commissioner (Exh.D.6) on the three appeals filed by the said three transferees as they were not satisfied with the demarcation of the house vide said order, dated 8-7-1967 (Exh.D.5). According to, this order the prayer of Mst. Sardar Begum etc. for permission to use the stairs and the roof was disallowed.
Reader to the D.S.C., Sahiwal appeared with record. He stated that Shafqat Ali was given two rooms, Aziz Bakhsh was given one rooms and a small veranda and the remaining house was given to the present appellants. He also admitted that there is no order on record permitting anyone to use the roof of the two rooms given to Shafqat Ali. Muhammad Sharif, appellant appeared as D.W.2. In his cross-examination he admitted that the correctness of the plan Exh.P.l and also admitted that the portion shown in red stands transferred to Shafqat Ali. Further states that over the room transferred to him is a Chobara and on the roof of the Chobara is his latrine. Also states that there is, over the roof of the rooms of Faqir. Muhammad, also a Chobara where he is residing. He also admitted the defendants never claimed in their statements before the Inspector that the roof of the rooms of Shafqat Ali is in their possession. Sardar Begum plaintiff appeared as P.W.1 and stated that the two rooms were transferred with roof to Shafqat Ali. Not even a slightest suggestion was given to her in her cross---examination that the said defendants had been in possession of the roof of the said two rooms or had been using the same. Learned counsel for the appellants relies on a reply to a question by the said lady in cross--examination, whereby she admitted that an application was filed for entry of courtyard and the room in P.T.O. which was not allowed. However, when considered in the light of the said application and the orders passed thereon which are available on record the said admission is incorrect. Throughout for the, dispute had been regarding the use of courtyard and the stairs which user was denied to Shafqat Ali by the Settlement Authorities. It is nobody's case that the roof of the said two rooms was not transferred to Shafqat Ali or that the said roof was not even the case set up in the pleadings- or during the course of evidence that the defendants had been using the said roof of the two rooms, admittedly transferred to Shafqat Ali, as of right.
Issues were framed on 7-5-1968. This R.S.A. was filed in the year 1970 and is being heard today.
Learned counsel for the appellants has not questioned the frame of issues. Issue No.2 clearly gives the impression that the case of the defendants was that they had acquired the right of easement over the said roof of the two rooms transferred to Shafqat Ali. Needless to add that a right of easement is always claimed over the servient tenant which is owned by a person other than the claimant who owns the dominant terminant. The said plea of the defendants in the suit by itself constitutes admission on their part of the ownership of the roof of the two rooms by the plaintiffs.
The correctness of the plan appended with the plaint, which is Exh. P-2 on record, has been admitted by D.W.2 Muhammad Sharif appellant. An examination of the said plan shows that the two rooms are located on the Western side of the house and are separated from the rooms in possession of the defendants and transferred to them by an open courtyard. According to law it is well-settled that unless otherwise mentioned or ordered the transfer of a premises would mean the transfer from bottom to the sky and this is the exact position in the present case. Reference be made to the case of "Nazir and others v. Syed Israr Ahmad etc." (1981 SCM R 829) and "Muhammad Rafique v. Malik Sikander and others" (1994 CLC 2300).
8. So far as the plea regarding the acquisition of the right of easement is concerned, suffice it to say that the final order in the case was passed on 6-2-1968 in the Settlement hierarchy and the suit was filed on 12-3-1968. There is neither any plea nor evidence on the record that any of the defendants in the suit had been using the roofs of the house or the latrine located thereon as of right for the period prescribed in section 26 of the Limitation Act, 1908. There is, thus, no question of the acquisition of a right of easement by the defendants in the suit over the roofs of the said two rooms for the simple reason that as per record at least till 7-2-1968 the property remained vested in the Federal Government free of all encumbrances.
9. As a result of the above discussion I find no misreading or non-reading of evidence on record by the learned Courts below while recording their respective judgments and decrees. This R.S.A. is accordingly dismissed leaving the parties to bear their own costs.