' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated 18-9-1997 delivered by learned Single Judge of the Lahore High Court in Chambers whereby a revision petition filed by the petitioner under section 115, C.P.C., calling in question the judgment and order dated 25-7-1992 decreeing the suit of the respondent against the petitioner and the order dated 6- 2-1996 passed by the first appellate Court upholding the judgment and decree of the civil Court was dismissed.
2. The facts in brief are that the respondent instituted a suit against the petitioner seeking a permanent injunction restraining the petitioner from closing the street and raising any construction obstructing the passage of the respondent for approaching Faisalabad Road. The respondent averred in the plaint that he constructed the house after getting sanction and in front of the house there was a passage, which was used as an approach to the Faisalabad Road and there was no other approach or access to the property except the passage mentioned in the plaint. According to the respondent, the petitioner intended to raise a construction at points AB & CD shown in the plaint for the purpose of obstructing the approach of the respondent, which if not stopped would deprive the respondent of the only access to the property.
3. The petitioner resisted the suit and stated in the written statement that there did not exist any street or passage and the respondent could not be allowed to use the property of others as a passage and by taking advantage of the weak health and old age of the father of the petitioner, the respondent intends to usurp the property. After settling issues and recording evidence there, the learned Civil Judge vide judgment dated 25-7-1992 decreed the suit and the learned Civil Judge concluded that there was a street as shown in the plan and the respondent was entitled to use it as approach to Faisalabad Road Chiniot city and the petitioner could not raise any construction at the points noted above, and thus, could not obstruct the access of the respondent to the said road. Aggrieved by the judgment and decree passed by the learned Civil Judge, the petitioner assailed the same through an appeal, which was dismissed and the appellate Court observed that the respondent was not a trespasser and the petitioner could not be allowed to obstruct the passage of the respondent. The judgment and decree passed by the learned Civil Judge and affirmed in appeal was challenged by the petitioner by way of filing a civil revision, which was dismissed vide order impugned.
4. It was contended before us that in fact the respondent had encroached on a portion of the land, extended its construction and claimed a portion of the petitioner's property on the plea of being used as a street. It was further contended that the respondent was himself a trespasser, and therefore, no relief could have been given to him. These contentions were raised in the High Court and were repelled because the High Court came to the conclusion that it was never the case of the petitioner in the written statement, which was sought to be set up in the High Court. It has been never pleaded by the petitioner that the respondent had encroached upon any portion of the street or extended this construction and thereafter, made a claim on the property of the petitioner.
On the contrary the reply given by the petitioner was that there did not exist any street or passage and the respondent wanted to usurp the property by taking benefit of the weak health and old age of the father of the petitioner. In this view of the matter, the High Court rightly observed that the petitioner could not be allowed to set up a new cause. The high Court also referred to the documentary evidence which clearly proved that there existed a street or passage in front of the house of the respondent and that was the only approach for reaching Faisalabad Road Chiniot City. Plans Exhs.P1 and 2 were proved by ,the witnesses in accordance with law and it was never suggested to the witnesses that the respondent had himself encroached upon the passage or extended his construction. The statements of P.Ws.. 1 to 4 alongwith the documentary evidence clearly proved that passage did exist in front of the house of the respondent. The respondent had constructed the house on the basis of a sanctioned plan and the proposed construction which the petitioner wanted to raise at Points AB and CD had the effect of closing the only approach to the property of the respondent. The High Court rightly observed that the concurrent findings arrived at by the Courts below were not open to exception because the same were not based upon non- reading or misreading of evidence. In our view, the High Court rightly rejected the revision petition.
We do not find any merit in this petition. The same is dismissed and leave to appeal is refused.