Munir A. Sheikh, J.--By this common judgment, we propose to decide both these appeals involving identical questions of law and facts.
2. Civil Appeal No, 1563 of 1998 by leave of the Court has arisen from a suit filed by the respondents in which the following prayers were made:-- "a. That the plaintiffs being inhabitants of the area are competent/entitled in law to use the courtyard of the Ahata known as Nathu Ram duly described in Annexure "A" in Red and are also authorized to use the lane/passage through the gate which opens on the Yate Road. b. Courtyard/Lane of the Ahata and has no authority/competency to lock the that the defendant is neither competent in law to encroach upon the main gate thereby depriving the plaintiffs of their right of easement towards its use and occupation; c. as a consequential relief the defendant may be directed to unlock the main gate of the Ahata which opens on the Yate Road thereby leaving the same as an open passage and he through perpetual injunction may be directed to retrain from blocking the way of the plaintiffs through the lane/gate in question for all times to come; d. Any other relief in addition to the above or in place thereof which may be found appropriate may also be awarded in favour of the plaintiffs and against the defendants. e. Costs of the proceedings may also be awarded".
3. It was contested by the present appellant. The trial Court initially passed ex parte decree in favour of the respondents on 15.7.1992. On the application made by the respondents, ex parte decree was set aside on 11.11.1993 and the suit restored. After recording evidence, the trial Court through judgment dated 8.10.1995 dismissed the suit. The appeal filed by the respondents was also dismissed by the learned District Judge Quetta through judgment dated 4.6.1996. Revision Petition No, 73 of 1996 filed by the respondents has, however, been accepted by the learned Judge in Chamber of the Balochistan High Court and the said suit decreed.
4. Civil Appeal No, 1564 of 1998 has arisen from a suit filed by the appellant against the three respondents with the following prayers:-- "It is therefore respectfully prayed that suit of the plaintiff may please be decreed in favour of the plaintiff and against the defendant with the following terms:--
(a) Declaring that the Defendants Nos, 1 to 3 cannot open windows, door and ventilators towards the property of the plaintiff.
(b) Directions to the Defendant No, 4 to cancel the site-plan approved with openings of windows, door and ventilators towards the property of the plaintiff.
(c) Restraining permanently the defendants to interfere and encroach upon the property/Land of the plaintiff.
(d) Restraining permanently the defendants from any type of opening of his house towards the land of the plaintiff.
(e) Any other relief which this Honourable Court deems fit and proper in the circumstances of the case."
5. This suit was decreed by the learned Civil Judge, Quetta through judgment dated 26.12.1994. The appeal filed by the respondents before the learned Additional District Judge III Quetta was dismissed through judgment dated 24.4.1995 and the revision petition filed by them has been accepted through the impugned judgment dated 31.10.1997 by the learned Judge in Chamber of the Balochistan High Court and the suit filed by the appellant of this appeal dismissed.
6. The dispute relates to a portion of the property known as Ahata Nathu Ram. It was owned by one evacuee. The Settlement Department allotted different portions of this Ahata to different parties. In the present case, the part of Ahata described as Items Nos, 10 and 26 shown in the site plan in this case was allotted to the appellant in Civil Appeal No, 1964 of 1998 whereas the other part of Ahata described by Item No, 13 was transferred to Respondents Nos, 1 to 3 in the said appeal. A passage falls in between Properties Nos, 10 and 46 of the appellant and 13 of the respondents, therefore, disputes arose as to whether the appellant had right to use it exclusively to approach his portion or otherwise it was part of his property or the respondents or the other transferees of the other portions of the property had also a right to use the same as passage. The matter at one stage came up before the Member Board of Revenue on the settlement side to determine whether this passage which has opening through a gate towards Yate Road was the property of the appellant as part of the said two portions transferred to him or it was undisposed portion to be used as passage. The Member Board of Revenue through order dated 9.3.1986 held that the said passage was an undisposed part of the said evacuee property which had not been transferred to any of the transferees of the property. The matter was brought before the High Court in Constitutional petition by the appellant which was dismissed through judgment dated 5.10.1988 against which CA No, 2-Q of 1998 was dismissed through judgment dated 26.8.1990 by this Court. While dismissing this appeal, this Court about this passage observed as under: "12. If this plot had not been transferred to Mst. Qamar Zia Begum or any one else, then it fell under the definition of an available property. It vested in the Government. The Member Board of Revenue as the notified authority has the authority to determine, while determining whether a property was available property or not whether it stood transferred in accordance with law. That jurisdiction having been exercised correctly, to that, there is no defect in the order of the learned Member, Board of Revenue. His refusal to transfer it to anyone else in view of the nature and use of the property cannot also be objected to because even if the appellant be taken to be in possession of it, he has no vested right to obtain it on transfer to the exclusion of others. To the extent that the Member, Board of Revenue declared that the property is not transferred to the transferee of House No, 3-1/10 that it is a property which will not be transferred to any one else, he is within his jurisdiction. However, the learned Member, Board of Revenue could not decide or determine, what rights in the nature of easements the adjoining owners had, or direct removal of obstruction to the enjoyment of such rights. These are essentially questions to be decided in Courts, having plenary jurisdiction in the matter. Except for this observation we find that the appeal has no merit and is dismissed. No order is made as to costs."
7. We have also gone through the plaint of the suit filed by the appellant and find that he did not in the strict sense or even generally or remotely claim any easement right in his favour about the use of the said passage exclusively either as general easement or easement of necessity. His objection was that in the site-plan sanctioned for the construction of the property of the respondents, windows, doors and ventilations opening towards this passage should be closed. It may also be mentioned here that in the site-plan portions of the property transferred to the appellant were shown in pink colour. So far as Property No, 13 transferred to the respondents, that was shown in yellow colour. We find that the passage in dispute has been shown as part of portion of Appellant Nos, 1 and 13 therefore, it appears that the case of the appellant was that he had right to the exclusive use of this passage as part of his property, therefore, on this assumption he objected that the respondents could not open the doors and windows towards this passage. On the other hand, the prayer made in the plaint filed by the respondents, shows that they only pleaded that from the Yate Road, this passage has opening through a gate, therefore, the transferees of the different portions of the Ahata have right to use this passage for approaching portions of the properties transferred to them. The trial Court decreed the suit of the appellant without being aware of the fact that the Board of Revenue and the Supreme Court had already declared that this passage was undisposed of part of evacuee property as such, had not been transferred to any of the parties. The grant of decree to the appellant amounted to hold that this passage though was held to have not been transferred to him by the Supreme Court, therefore, the judgment and decree passed by the Courts below were not sustainable.
8. On the other hand, the dismissal of the suit of the respondents in which they claimed that this passage should be allowed to be used for approaching different portions of the properties transferred to different parties was wrongly dismissed, for the same was against the findings of the Board of Revenue and the Supreme Court. In our view, it was not a case in which the question of easement right over this passage of any of the parties was involved or could be claimed. It was a property which was owned by one evacuee owner. It was found to be divisible by the Settlement Authorities and by carving out different portions, they were transferred to different persons which has a passage with gate towards the Yate Road which was left undisposed of to be used as such, therefore, none of the parties could claim exclusive use of the same to the exclusion of the other.
The respondents could not be restrained from opening their windows and doors towards this passage. The property of the Appellants Nos, 10 and 46 start where the width of the passage ends, therefore, the opening of the windows, etc., on the passage could not have been restrained assuming that passage was part of appellant's property.
9. Learned counsel for the appellant submitted that while passing the judgment, the learned Judge of the High Court was mainly influenced that the ex parte decree was wrongly set aside. He argued that the question of setting aside ex parte decree and orders passed to set aside it could not have been reopened in appeal against the final judgment passed by the trial Court and the First Appellate Court. Technically speaking, the objection is sustainable but we find that after holding so, the learned Judge of the High Court mainly proceeded to decide the case on the basis of the judgment of the Board of Revenue and the Supreme Court. The correctness of the site plan Exh. P4 which depicts and demarcates different portions of the properties transferred to the parties and the passage is not disputed, therefore, it was a case where the law should have been applied on the said admitted position on the record about the nature of the property and the passage.
10.The claim made by the appellant amounted to indirectly claiming ownership of the passage as part of portion transferred to him, which was held to have been not transferred to him by this Court.
11.For the foregoing reasons, we do not find any force in these appeals which are accordingly dismissed leaving the parties to bear their own costs.