This be considered as admitted case.
2. Brief facts in the instant civil revision are that property Bearing No, SE 6-R-198, May6 Road, Dharampura, Lahore comprising of residential portion and a shop was allotted respectively to one Khushi Muhammad predecessor-in-interest of the plaintiff and the shop was allotted T to Muhammad Shafi the predecessor-in-interest of the respondents. Plaintiff in her pleadings averred that she is owner of the entire property except the shop and that the roof of shop is the part and parcel of the residential portion owned by the plaintiff and it has been under use and occupation of the plaintiff as a courtyard of the upper portion for the last about 40 years. In this way she has acquired the right of easement of way, light and air by uninterrupted user of courtyard for the last about 40 years and the roof constitutes the only way to the residential portion on the upper storey.
The defendants with permission of the plaintiff dismantled the roof of the shop on the pretext of re- construction and providing the plaintiff substituted roof of old design as to deprive the plaintiff from use and occupation of courtyard, light and air of her room. Thus suit was contested by the defendants being not maintainable and hit by Order XXXII, Rule 2 CPC, bad for non-joinder of minor as party through guardian ad litem and does not fall in the provision of Section 35 of the Easement Act, 1882 and the suit is liable to be dismissed for lack of cause of action. The defendants had the instance that the whole of the property alongwith the roof was transferred to the predecessor-in- interest of the plaintiff without any easement rights. Issues were formulated and the learned trial Court vide judgment and decree dated 31.5.1992 dismissed the suit filed by the plaintiff. On appeal the judgment and decree of the learned trial Court was affirmed hence, this civil revision.
3. Arguments advanced by learned counsel for the petitioner are that the old roof was of 13 feet height but the new roof is built on 8 feet height and in this way the plaintiff's right of easement has been injured. He argued that local commission was appointed by the learned trial Court, report was produced by him, the same went un-objected by both the sides and the learned Courts below have misconceived the evidence of PWs-1, 2 and 3. The learned Courts below also failed to consider the report of local commission and also failed to appreciate the evidence produced by the plaintiff PW-1 to PW-4 stated categorically that roof of the defendant's shop is being used by the plaintiff since the partition of the country and the plaintiff has acquired the right of way over the roof of the defendant for the last about 40 years.
4. Arguments advanced by learned counsel for the respondents are that the instant civil revision is hopelessly time barred. The provision of condonation of delay u/S. 5 of the Limitation Act does not apply to Civil Revisions relied on "Deputy Commissioner, Pishin vs. Abdul Salam and others" (PLD 1993 Quetta 121) and 'Abdur Rehman vs. Akram Khan and others" (1991 MLD 1502). He argued that the petitioner has not produced any document in respect of his claim. No right occur to him under Section 4 of the Easement Act relied on "Abdul Hamid Shah and another vs. Muhammad Yar and others" (PLD 1991 S.C. 815) and "Nazir and others vs. Syed Israr Ahmad etc" (1981 SCMR 829) and "Muhammad Rafiq vs. Malik Sikandar and others" (1994 CLC 2300) that positive and concrete evidence is needed to prove the right-of-easement. That under Section 17-A of the. Easement Act 1882 right of easement cannot be claimed on a roof. The plaintiff's case is that he had been enjoying the right of way over the roof of the shop duly allotted to the respondents and it is also admitted by the plaintiff that permission was granted by him for re-building the old roof, which was dismantled. Under Section 37 of the Easement Act, 1882 any claim of the plaintiff by way of right or upon any other ground stand extinct relied on "Mirza Iftikhar Beg vs. Govt. of the Punjab through Secretary Health, Lahore and another" (1990 CLC 851).
5. I have heard the learned counsel for the parties and perused the record. The plaintiff produced PW-1, PW-2, PW-3 and appeared as her own witness as PW-4. Except oral evidence she did not produce any documentary evidence in support of her claim. During her cross-examination she admitted that roof of the shop was used by her as courtyard and the defendants took permission to re-build the roof of the shop. This roof is rebuilt at the height of 8 feet and now it is 5 feet lower to the earlier roof and she cannot use the same as courtyard. She also admitted that she has not produced the proof of her ownership in the civil Court. PW-1 Inayat Ullah BajWa appeared sworn on oath and stated that shop in dispute was in the ownership of Dr. Malik Muhammad Shafi, who sold the same to Dr. Muhammad Iqbal Qureshi, who has died and the defendants are the legal heirs of Dr. Muhammad Iqbal Qureshi. Dr. Muhammad Iqbal Qureshi purchased the entire shop with the roof and it was in his possession. DW-2 the defendant Shahid Iqbal appeared and stated that the roof from the very beginning was in their use and from time to time it was repaired, copy of registered-deed is Ex. D-I. In his cross-examination he stated that he has been sitting as a Doctor in the shop of his father and when he purchased the shop height of the roof was 11/12 feet and still the height of the roof is the same and he did not take any permission from the plaintiff. He admitted that he himself dismantled the roof, rebuilt it and it is incorrect that this roof was being used as courtyard by the plaintiff. He volunteered that there is separate way to go to the roof of the residential portion belonging to the plaintiff/petitioner.
6. Both the learned Courts below have appreciated the evidence and given issuewise findings and they have correctly observed that the property was belonging to Central Government and Evacuee and both the parties were allotted a shop and a residential portion with all the encumbrance. The Easement Act, 1882 does not apply to the property obtained by the parties through settlement department. Moreover it is admitted by the plaintiff/petitioner that she has given consent to dismantle the shop, therefore, whatever right was existent to her is extinct by now. The petitioner/plaintiff has failed to produce any documentary evidence in respect of her claim being dominent owner and un-interrupted use of the disputed property except oral evidence, which is not sufficient to substantiate the plaintiffs claim over the disputed property. Learned counsel for the petitioner has failed to point out any legal infirmity, mis-reading or non-reading of evidence, therefore, no substance whatsoever exist to interfere in the concurrent findings of the learned Courts below. Instant civil revision is dismissed.