Since analogous question of law and fact is involved in Civil Revision No. 117/D/88 and Civil Revision No.153/D/88. I propose to decide the same by the following single judgment.
2. The facts giving rise to this petition are that the petitioner Muhammad Zikria filed a suit against the respondents/defendants for permanent prohibitory injunction restraining the defendants/respondents from demolishing the southern and western walls of the Shop No.B-IX-7- S/1 situate in Kanghi Bazar, Jhelum and causing damage to it or to raise any shades or to keep any beam on it in any manner. By way of consequential relief it was prayed the respondents/defendants be ordered to remove the lintel, shade or beam/girder from the wall of the shop. It was averred that one Allah Ditta was the tenant of the shop in dispute under the plaintiff. The defendant No.1 in the garb of repairing the roof of the shop was encroaching on the suit shop and wanted to lay a shade on it by putting girder and lintel the walls of the shop owned by the plaintiff/petitioner. It was further averred that the disputed shop had its own walls which were not common with the defendants in any respect and that the plaintiff was entitled to use the roof of the suit shop. The suit was resisted but it was admitted that the plaintiff was the owner of the 'Khokha' (shop) but the right to use the roof of the shop and the walls by the plaintiff was denied. It was further alleged that the disputed shop had no access to the roof and the only access to the upper portion was from the defendants' shop who had the exclusive right to use the roof of all the building including the disputed shop. It was also stated that the area of the shop was 3 x 3.6 ft. And it was a part of the building. That the defendants had been using the roof of the building including the disputed shop since long.
3. Out of the pleadings of the parties the following issues were framed:-- (i)Whether the plaintiff is entitled to injunction claimed for?
(ii)Whether the suit is false, frivolous and mala fide and the defendants are entitled to the special costs under section 35-A, C.P.C.?
(i.e)Whether the plaintiff has got no cause of action? OPD .
(i.e-A)Whether report of the Commission is liable to be set aside? OPD (iv-B)Whether the defendants have violated the orders of status quo, if so, its effect? OPP The learned Civil Judge, Jhelum vide his judgment dated 1-4-1986 dismissed the suit. On appeal the learned Additional District Judge, Jhelum partly allowed the appeal vide his judgment dated 19-1-1988. Both the parties assail the judgment of the learned Additional Judge, Jhelum, by these two Revision Petitions.
4. Mr. Ajmal Kamal Mirza the learned counsel for the petitioner in Civil Revision No.117/D/88 contended that the defendant/ respondent No.1 Mst. Zubaida Begum did not appear in the Court to defend the case. He further submitted that the petitioner was not cross-examined as to the fact that the petitioner was not the owner of the shop. He further argued that the respondent had not placed on record any title document relating to the shop and that the petitioner was entitled to the roof of the shop under the principle of 'up to sky". Reliance was placed upon Feroz Khan and others v. Mst. Waziran Bibi 1987 SCM R 1647 and M. Yaqoob v. Settlement and Rehabilitation Commissioner, Lahore and 5 others PLD 1973 SC 439. Conversely the learned counsel for respondents argued that the husband of the respondent appeared as D.W.3 and the principle 'up to sky' was not applicable to the facts of the case. He further argued that the learned Additional District Judge committed illegality and material irregularity in granting relief which was not prayed for in the plaint. He stated that the possession of the 'Khokha' was not prayed for in the plaint and the same could not be granted by the learned Additional District Judge. The dispute related only to the roof of the shop but argued that the shop was not an independent shop and was situate in a building.
5. I tend to agree with the learned counsel for respondents that the shop in dispute's not an independent shop, the PTD Exh.P/6 issued by the Settlement Authorities shows that the same is not an independent shop but is stated as "shop (part of building) Kanghi Bazar, Jhelum". Being part of the as such the plaintiff has no right to use the roof as claimed by him. The shop in dispute originally belonged to Malik Singh who applied on 19-3-1938 Exh.P/3 to the Municipal Committee for some alterations.
The report on the said application is as under:-- From B Exh.P/4 reads as under: The permission was granted on 14-4-1938. The learned counsel for respondents has drawn my attention to Exh.D/1 the sale-deed which states that in the eastern corner there was a 'Khokha' and that was shown in the plan Exh.D.1/A attached with the sale-deed as part of the shop. Learned counsel argued with the same being the part of the building could not be given to the plaintiff by the learned Additional District Judge. The above stated record of the Municipal Committee Exhs.P/3 and 4 shows that window was in the shop of the plaintiff. The learned Additional District Judge after discussing the entire evidence on record as well as the report of the Local Commissioner came to the conclusion that the window in the shop of the plaintiff belonged to him and he being the owner was entitled to use the same as front of his shop in the main Bazar. I am not inclined to interfere in the said finding of fact reached by the learned Lower Appellate Court. The authorities relied upon by the learned counsel for the petitioner do not help him.
6. For what has been stated above I see no flaw in the impugned judgment passed by the learned Additional District Judge and dismiss both the revision petitions with no order as to costs.