' The judgment and decree dated 15-5-1985 passed by the learned Additional District Judge, Faisalabad, have been assailed in this revision petition which arises out of the following circumstances
2. Muhammad Ramzan, respondent No.1 , filed a suit against the petitioner'and Municipal Committee Chak Jhumra respondent No.2 for mandatory injunction. The case of the plaintiff- respondent was that he was owner of a house situated on the old post office road Chak Jhumra.
He intended to construct five shops in the said property opening towards the Bazar known as Mochi Bazar. He submitted a building plan to the Municipal Committee which was sanctioned. It was averred that the petitioners had unlawfully encroached upon the portion of the public road in front of the proposed shops of the plaintiff-respondent. He approached the Municipal Committee for removal of the encroachment but without success.
3. The suit was resisted by the petitioners and the Municipal Committee Chak Jhumra. In the written statement filed by the Municipal Committee it was stated that petitioners 3 to 5 were illegal occupants against whom proceedings were being taken by the Municipal Committee while petitioners 1 and 2 were the licensees of the Municipal Committee under "Tehbazari Ticket". The petitioners also filed a separate written statement. A number of preliminary objections were taken including that the plaintiff-respondent had earlier filed a suit which was dismissed on 18-3-1978.
Title of the plaintiff-respondent to House No.3 was conceded. It was averred that the petitioners have been in possession of their respective sites for the last 31/32 years and had constructed shelters which were being used for residential purposes. The form of the suit was also objected to on the ground that separate suits should have been filed.
4. Necessary issues were framed and the suit was tried. The learned trial Court found that Mst.
Maryam Bibi was a licensee of the Municipal Committee while other petitioners were found to be encroachers. It was further held that the suit was not barred under section 11 of the Code of Civil Procedure. Accordingly, vide judgment and decree dated 7-9-1981 it was decreed to the extent of petitioners 2 to 5 and Municipal Committee Chak Jhumra respondent No.2.
5. Two separate appeals were filed against the said judgment, one by the plaintiff-resOondent and the other by petitioners Nos.2 to 5. The appeal of the plaintiff-respondent was allowed while that of petitioners 2 to 5 was dismissed vide consolidated judgment dated 15-5-1985 which has been impugned in this revision petition.
6. The learned counsel for the petitioners has vehemently relied on Exh.D.1, the copy of the judgment dated 18-3-1978, whereby the earlier suit filed by the plaintiff-respondent was dismissed.
He maintains that the finding of the learned two Courts on Issue No.6 is therefore, not maintainable.
He next contended that, the Municipal Committee has conceded in written statement that petitioners 1 and 2 were the licensees under the Municipal Committee and, therefore, to their extent, the suit of the plaintiff-respondent could not have been decreed.
7. On the other hand, the learned counsel for the plaintiff-respondent submits that the petitioners were undisputedly illegal occupants on public property thereby blocking the frontage of the property ,of the plaintiffs and his free access to his property and the encroachment by the petitioners on public property has the effect of impairing the value of the property of the plaintiffs.
He maintains that in the first suit the Municipal Committee was not party and it was based on the right of easement while in the second suit injunction was. Claimed against not only the petitioners but also the Municipal Committee to remove the encroachment from a public road and, thus it was not barred under section 11 of the Code of Civil Procedure. He also relied on unreported judgment of this Court in Civil Revision No.309 of 1973 decided on 12-12-1982 to contend that "right of access from private property to public road is a recognized legal right irrespective of whether the owner has proved special damages or not. It is also not less well recognized that the owner of particular property can be granted mandatory injunction for removal of permanent structure which interrupts his right of access to the Highway".
8. The submissions made by the learned counsel for the parties have been considered and the record examined. Apart from Mst. Maryam Bibi petitioner No.1 and Lakhu, petitioner No.2, the other three petitioners are undisputedly illegal occupants of a part of public road in front Aof the property of the plaintiff-respondent. Petitioner No.2 also claimed to be a licensee under a "Tehbazari Ticket" but on perusal of the record the learned first Appellate Court found that "Tehbazari Ticket" placed on the record was in the name of one Naik Muhammad. The learned counsel for the petitioners tried to persuade me to believe that in fact Naik Muhammad was also known as Lukhu. There is no evidence to sustain this finding. Mst. Maryam Bibi has been a Tehbazari ticket holder which is mere licensee for the occupation of somebody else property without any right in the property or a right to raise construction thereon. Undisputedly, the petitioners have raised permanent construction on the part of a public road and interferepce of this Court will bring about an unjust result. Something patently against public interest and unlawful could not be condoned in exercise of discretionary jurisdiction.
9. As far as the finding of the learned two Courts that section 11 of the Code of Civil Procedure did not bar the present suit is concerned, it is not open to exception either because the Municipal Committee was not party to the first suit.
10. For what has been stated above, I find no merit in this revision petition which is, accordingly, dismissed with no order as to costs.