SAVED NAJAM-UL-HASSAN KAZMI, J. - This judgment will dispose of Civil Revision No. 1697/D/98 and Civil Revision No. 1698/D/98 as the same arise out of a common judgment and ,raise common questions of law and facts.
2. Abdul Hamid and Mst. Ghafooran Bibi, petitioners in these revision petitions, filed a suit for declaration to the effect that being owners of residential house No. 122 (310), they were entitled to utilize roofs of the shops and adjacent to their house and that the respondents are not entitled to make interference therein. It was claimed that they were in possession of house No. 122, roofs of shops adjacent to their house were in their use for residential purposes since 1947, there was no independent approach of the roofs of shops except through a staircase, located inside the residential house. In this backdrop, a decree for declaration of entitlement to have uninterrupted use of the roofs was claimed.
3. Ghulam Hussain and others, respondents herein, also filed a suit for permanent injunction against Mst. Ghafooran Bibi and two others, petitioners herein, to restrain them from making interference in the roofs of the shops. It was claimed that the transfer of shops included the roofs of the shops , the shops were independent unit and that the roofs of shops were never treated or transferred as a part of residential house.
4. The two suits were consolidated, consolidated issues were framed, evidence was recorded and finally the suit of petitioners (Mst. Ghafooran Bibi and Abdul Hamid) was dismissed while the suit of Ghulam Hussain and others, respondents herein, was, decreed. This was vide judgment dated 18.10.1989 of the learned Civil Judge.
5. Two appeals, filed by the petitioners were dismissed by the learned Additional District Judge on 28.4.1993. Feeling aggrieved, petitioners filed Civil Revision No. 992/93 and Civil Revision No. 993/93 which were allowed by this Court, on 21.10.1997 and the case was remanded to the learned Civil Judge for decision of the suit afresh after attending the questions noted in the judgment and allowing parties with opportunity to produce documents/record and evidence. It was observed that the learned Civil Judge should find out the description, area, extent of the rights transferred to the claimants in property in issue and to decide as to whether roofs from parts of the shops or of the residential portion.
6. In the post remand proceedings, learned Civil Judge dismissed the suit of the petitioners and decreed the one filed by respondents by recording findings that the disputed roofs were part of the shops and that the petitioners had failed to prove that the roofs were allotted to them as a part of the residential house. This was vide judgment dated 19.2.1998.
7. Petitioners filed two appeals, which were dismissed by the learned Additional District Judge, Faisalabad on 15.4.1998. Findings on issues Nos. 3 and 4, recorded by the learned Civil Judge were affirmed and it was declared that the respondents were entitled to use roofs of their shops without ,interference by the petitioners and that the petitioners, Abdul Hamid and others failed to establish their ownership as to the roofs of the shops in issue.
8. In these two revision petitions, the judgments of the Courts below have been called in question.
9. Learned counsel for the petitioners argued that the directions contained in the remand order were not properly considered, the division of the property was horizontal and not vertical and that the evidence on record would show that the roofs were in possession of the petitioners and were part of their residential house. It was added that the possession would be 9/10th of ownership and therefore, the suit of the petitioners should have been decreed while that of respondents should have been dismissed.
10. Learned counsel for the respondents pointed out that the petitioners had failed to annex with the revision petition, all the material documents, which were produced in evidence and considered by the Court below and therefore, the revision petitions were not properly instituted and also that the documents which were not annexed with the revision could not be referred to. On being asked, learned counsel for the petitioners placed on record, copies of the documents and submitted that the findings, if examined, in the light of those documents, would require no interference.
11. As noted supra, the suit of petitioners was earlier dismissed by the learned Civil Judge while the suit of respondents was decreed and the judgment of the learned Trial Court was also affirmed in appeal. In two revisions, filed by the petitioners, case was remanded to the learned Civil Judge, to allow parties an opportunity for producing the settlement record and also to determine the extent of the rights of the parties in the property in the light of settlement record. Except filing of copies of certain documents, no other evidence was produced in the post remand proceedings. The learned Civil Judge after considering the oral and documentary evidence, concluded that the shops were independent unit and were transferred as such, the roofs were not part of residential house and was never transferred to the petitioners as a part of residential unit and that there was no document including the order of the settlement authority to support the plea that the roofs of shops were part of the residential unit or transferred as such. In reaching this conclusion, the Courts below took note of the basic transfer order of the residential unit as well as shops, survey register, PTOs, PTDs, auction proceedings, CH and CS forms, statement of CW-1 Clerk of Settlement Department, the other proceedings and orders on settlement side and after considering all such evidence, the findings rendered are that the shops are independent units which include the roofs thereof and that roofs of the shops were never part of residential house. With the assistance of learned counsel for the parties, the documentary evidence relied upon by the two sides was examined and it was observed that the findings recorded by the two Courts are in accordance with the documentary evidence on record and that the settlement record including the order of transfer as well as PTO, PTDs, CH forms and other documents, do not render any assistance to the petitioners or create any impression that the roofs of shops were part of residential house. Instead, those documents clearly show that residential portion was transferred separately and the shops were transferred separately and at no point of time the allottee/transferee of the residential house was ever transferred rights of the roofs of shops for user thereof as a part of residential unit. There is no mis-reading or non-reading of the evidence nor any mis-reading could be pointed out in the course of hearing of these petitions.
12. As to the other objections, the same are untenable, inasmuch as, the learned Courts below, examined the case in the spirit of the remand order and rendered conclusive findings as to the extent of rights of the parties. Of course, the petitioners could not be allowed user of the roofs of shops, particularly when it is proved that the residential unit was independent and the roofs of shops were never part of the residential house before the partition. In these circumstances, the Courts below, proceeded incorrect direction while dismissing the suit of the petitioners and decreeing the one filed by the respondents.
13. Learned counsel for the petitioners wanted reappraisal of the evidence and formation of another view which is not possible in revisional jurisdiction, particularly when the findings of the Courts below are based on consideration of the material evidence and no mis-reading of any material evidence has been observed.
14. For the reasons above, no ground is made out for interference in concurrent findings of fact. The revision petitions being devoid of merits are dismissed.