24/01/2022, 16:34 2000 Y L R 2286

2000 Y L R 2286
 
[Lahore]
 
Before Maulvi Anwarul Haq, J
 
FAQIR MUHAMMAD
 
and another‑‑‑Appellants
 
versus
 
SARDAR BEGUM
 
and others‑‑‑Respondents
 
Regular Second Appeal No.640 of
1970, heard on 24th May, 2000.
 
(a) Easements Act (V of 1882)‑‑‑
 
‑‑‑‑S. 9‑‑‑Easement,
right of‑‑‑Claim of such right‑‑‑Scope‑‑‑Right
of easement is always
claimed over the servient tenement which is owned by a
person other than the claimant who
owns the dominant tenement.
 
(b) Transfer of Property Act
(IV of 1882)‑‑‑
 
‑‑‑‑S, 5‑‑‑Transfer
of properties‑‑‑Transfer of a premises means the transfer
from bottom to
the sky unless otherwise mentioned or ordered.
 
Nazir and others v. Syed Israr
Ahmad and others 1981 SCMR 829 and Muhammad Rafique
v. Malik Sikander and
others 1994 CLC 2300 ref.
 
(c) Easements Act (V of 1882)‑‑‑
 
‑‑‑‑S. 9‑‑‑Right
of easement‑‑‑Plaintiff filed suit to restrain defendants
from using the roof of
the rooms allocated to the plaintiff‑‑‑Prior
to the allotment, the suit property was owned by
Federal Government and the
same was free of all encumbrances and defendants had no right
of easement over
the roofs of the rooms allotted to the plaintiff‑‑‑Both the
Courts below
concurrently decreed the suit of the plaintiff‑‑‑No
misreading or non‑reading of evidence on
record by the Courts below was
pointed out while recording their respective judgments and
decrees‑‑‑Interference
was declined by the High Court.
 
Ch. Saghir Ahmad and Ch. Nazir
Ahmad for Appellants.
 
Ch. Asghar Ali and Ahsan Hafeez
for Respondents.
 
Date of hearing: 24th May, 2000.
 
JUDGMENT
 
Sardar Begum, daughter of
Mehrajuddin acting for herself and as special attorney of Ghulam
Ali Raza,
Muhammad Yousaf Raza, Mst. Ejaz Hussaini, Mst. Mumtaz Hussaini, Mst. Altar
24/01/2022, 16:34 2000 Y L R 2286

Hussaini
Mst. Altar Hussaini sons and daughters of Mehrajuddin (hereinafter to be
referred
to as the plaintiffs) filed a suit against the appellant Faqir
 
Muhammad, Muhammad Sharif son of
Karim Bakhsh and Aziz Bakhsh son of Jan
Muhammad (hereinafter to be referred to
as the defendants). The need for mentioning the
parties in the manner aforesaid
has arisen as in this R.S.A. that was filed as far back as on
18‑7‑1990
no particulars whatever of the aforementioned plaintiffs and the aforementioned
defendants except Faqir Muhammad, appellant (described in the memo. of parties
as a
petitioner) have been given despite the passage of more than three decades
and also despite
specific orders issued by this Court on 2‑2‑1999
to the learned counsel appearing for the
said Faqir Muhammad appellant and
further particulars called for vide order, dated
9‑5‑2000.
 
2. The said suit was filed on 12‑3‑1968.
In the suit the plaintiffs averred that two rooms in
House No.316/B‑IV/5
situate in Sabzi Mandi, Sahiwal as shown in red colour in the plan
attached to
the plaint were transferred to Shafqat Ali, the late predecessor‑in‑interest
of the
said plaintiffs vide P.T.O. issued by the Deputy Settlement
Commissioner, Sahiwal; that the
remaining portions of the house were
transferred to the said defendants in the manner
depicted in the said plan. It
was further stated in the plaint that late Shafqat Ali died on
3‑3‑1965
and till his death he had been using the internal courtyard, stairs and the
water tap
and also a roof of the said rooms and the latrine therein. The said
property was ultimately
transferred to the plaintiff as heirs of Shafqat Ali;
that Sardar Begum plaintiff is in possession
of the said two rooms; that the
defendants, after the death of Shafqat Ali closed down two
doors of the said
rooms opening in the courtyard, thereby depriving the plaintiffs of the user
of
the water tap and stairs. It was further averred that the defendants have no
right to use the
latrine located on the roofs of said two rooms which are in
possession of the plaintiffs; that
the plaintiffs have forgone their right to
use the courtyard and the top and stairs and they had
called upon the
defendants not to use roof of the said rooms or the latrine located thereon but
they have refused. With these averments a decree for permanent injunction was
claimed
restraining the defendants from interfering with or using the roof of
the said two rooms and
the latrine thereon. The said Aziz Bakhsh, defendant
No.3 died during the pendency of the
suit and his daughters namely, Sardar
Begum and Rashida Begum were imp leaded as his
legal representatives. The
defendants filed their written statement wherein they admitted the
factum of
the transfer of the said two rooms as mentioned in the plaint to Shafqat Ali.
However, it was averred that the said Shafqat Ali had never used the roof of
the said two
rooms which is being used by the defendants. The precise
contention was that the roof of the
two rooms was not owned by Shafqat Ali, the
said predecessor‑in‑interest of the plaintiffs.
Issues were framed
on 7‑5‑1968. These were framed in Vernacular in the following
terms:‑‑
 
(1)??????? Whether the Civil Court has no
jurisdiction to try this suit?,
 
(2)??????? Whether the defendants
have acquired a right of easement by a
continuous use of the roof and latrine
over the roof of the plaintiffs?
 
(3)??????? Whether the plaintiffs are the owners of
the roofs of their rooms?
 
(4)??????? Relief,
 
Evidence of the parties was
recorded. The learned trial Court decreed the suit of the said
plaintiffs vide
judgment and decree, dated 20‑1‑1970. Against the said judgment and
decree
the said Faqir Muhammad son of Aziz Bakhsh and Muhammad Sharif son of
Karim Bakhsh,
filed a first appeal. The plaintiffs were made as respondents
Nos. l to 6 . While the said
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daughters of Aziz Bakhsh were imp leaded as

respondents Nos.7 and 8 in the said first
appeal. The appeal was heard by
learned District Judge, Sahiwal who dismissed the appeal.
Present R.S.A. had
been filed by the said Muhammad Sharif and Faqir Muhammad through
Malik Amjad
Hussain, Advocate.
 
3. The R.S.A. came up before this
Court on 23‑7‑1970 when it was admitted and notice was
ordered to
be issued to the respondents. According to the order‑sheet of this R.S.A.
the case
was once listed on 5‑4‑1971 probably on an office
objection and it was reported by the
learned counsel that the certified copies
had been filed and the delay in filing the certified
copies was condoned.
Thereafter, the case was listed on 27‑11‑1997. It appears that
through
some inadvertence the appellants were marked absent while Ch. Nazir
Ahmad, Advocate
was marked present for the respondents. The case was listed on
17‑12‑1997 when none
appeared and orders were issued for notice to
the parties for 16‑1‑1998. On the said date
against none appeared
and the case was adjourned to 3‑3‑1998. On the date again Ch.
Nazir
Ahmad, Advocate was marked present for the respondents and notices were ordered
to be issued for 2:4‑1998. Apparently, the case could not be taken up on
the said date. C.M.
No.947‑C of 1998 was filed by Mehmood Ahmad son of
Sh. Muhammad Siddiq under
Order I, Rule 10, C.P.C. praying that he be imp
leaded as a party. In the application it was
averred that the said Mehmood
Ahmad had purchased the share of said Mst. Mumtaz
Hussain, Altaf Hussaim,
Ghulam Ali Raza, Mst. Sardar Begum and Ijaz Hussain through five
separate sale
deeds. Certified copies of these sale‑deeds were appended with the
application. These sale deeds were registered on 28‑2‑1981. This
C.M. was listed on
1‑10‑1998 when it was ordered to be heard
alongwith the main appeal. The matter was
listed on 16‑11‑1998 when
none appeared while there was a request for adjournment on
behalf of the
learned counsel for the appellants and the case was adjourned to 16‑12‑1998.
On this date the case was adjourned on the request of the learned counsel for
the appellants
to 2‑2‑1999. It was on this date i.e. 2‑2‑1999
that it was noticed that except Sardar Begum
daughter of Meraj Din no
particulars whatsoever of the respondents in the appeal have been
given in the
memo. of appeal. It was also noted with concern that the said lapse has caused
delay in the hearing of this matter. A direction was issued to the learned
counsel for the
appellants to file a correct up to date memo. of appeal within
a fortnight. I have checked up
the entire file of this R.S.A. and I find that
this direction has not been complied with till date.
Thereafter, the case was
listed on 9‑3‑2000 when the learned counsel for the appellants
absented himself while Sh. Ahsan Hafeez, Advocate put in appearance for Altaf
Hussain and
Ch. Ashgar Ali, Advocate appeared for the said Mehmood Ahmad. The
R.S.A. was
dismissed for Lion‑prosecution. C.M. 366 of 2000 was filed for
readmission of the R.S.A.
which C.M. was allowed on 10‑4‑2000. The
case was adjourned to 9‑5‑2000. On this date
the case was listed
and it was taken up by me. It was reported that Sardar Begum, Mst. Ijaz
Hussaini and Ghulam Ali Raza, respondents are dead. I may note here that these
particulars
were taken from the memo. of parties in the first appeal before the
learned District Judge,
Sahiwal. Learned counsel for the appellants was
directed to prove the list of L.Rs. of the said
respondents so as to enable the
office to effect their service for 24‑5‑2000. A warning was
issued
that in case, the needful is not done the appeal shall be dismissed against the
said
respondents. The needful of course was not done and instead C.M. 924 of
2000 was filed
expressing that the said respondents Nos.1 and 4 were unmarried
and left no legal heirs while
the appellants could not trace out the legal
heirs of the said Ghulam Ali Raza.
 
4. C. M. No. 947‑C of 1998
is on record since 30‑9‑1998 and the appellants are on notice.
Nothing has been brought on record to oppose the contents of the said C.M. and
the learned
counsel for the appellants is also not in a position to oppose the
same. The C.M. is
accompanied by certified copies of the registered sale‑deeds
relied upon by the said
Mehmood Ahmad applicant in support of his contention
that he had purchased the shares of
24/01/2022, 16:34 2000 Y L R 2286

the respondents mentioned therein. I,

therefore, allow the C.M. and permit Ch. Asghar Ali,
Advocate to address the
Court.
 
5. Learned counsel for the
appellants contends that the learned lower Courts while passing
their
respective judgments and decrees have failed to read the evidence on record. It
is
pertinently stressed that the several orders passed by the Settlement
Authorities, copies
whereof where produced by the appellants had not been taken
into account by the learned
lower Courts. According to the learned counsel the
judgments and decrees of the learned
lower Courts suffer from misreading and
non-?reading of evidence on record and as such are
contrary to law and liable
to be set aside. Ch. Asghar Ali, Advocate for the said added
respondent Mehmood
Ahmad and Mr. Ahsan Hafeez, Advocate for Mst. Altaf Hussaini
plaintiffs have
supported the impugned judgments and decrees.
 
6. I have gone through the record
of the learned trial Court with the assistance of the learned
counsel present.
Learned counsel for the appellants has taken me through documents Exhs.
D.1 to
D.6., The position that emerges is that the said house as a whole was in the
first
instance ordered to be transferred to the said Shafqat Ali, predecessor‑in‑interest
of the said
plaintiffs by the Deputy Settlement Commissioner and the Additional
Settlement.
Commissioner upheld the, same. Feeling aggrieved the appellants
filed a revision petition
which was heard by Sardar Ghulam Hassan Khan Leghari,
Settlement and Rehabilitation
Commissioner Camp at Montgomery. Vide order,
dated 28‑7‑1960 which is on record as
Exh. D.4. The said revision
petition was allowed and the said Settlement Commissioner held
that since the
house is served by roads on its South and East it can be divided and directed
that portion in possession of the said three parties i.e. appellants in this
appeal and the said
Shafqat be transferred to them. It appears that the said
Aziz Bakhsh feeling aggrieved filed a
writ petition in this Court which was
allowed on 1‑4‑1966 and it was directed that the portion
in
possession of Aziz Bakhsh should be transferred to him. The matter was then
taken up by
the Deputy Settlement Commissioner, Sahiwal who vide order, dated 8‑7‑1967
apportioned
the total rent of the house amongst the said three contesting
parties as follows: ‑‑‑
 
(1)??????? Faqir Muhammad, Rs.15 Muhammad Sharif
(appellants)
 
(2)??????? Sardar? Begum
etc. heirs of Shafqat Ali
 
(3)??????? Aziz Bux
 
A revised appendix and P.T.Os,
were accordingly issued. It was also observed in the said
order that the said Aziz
Bakhsh is in possession of a room and small veranda. The house was
then
transferred to the said three parties. EXh.D.I is an application of Shafqat Ali
filed by him
on 19‑6‑1958 complaining that the said Aziz is not
letting him to enter the courtyard to get
water from the tap. On this
application a report was made by some Inspector on 20‑6‑1958
which
is Exh. D.2 who reported that Shafqat Ali is in possession of two rooms and the
remaining house is with the other parties. It was recommended that since Aziz
Bakhsh etc. do
not let Shafqat Ali enter the courtyard some portion of the
courtyard be given to Shafqat Ali.
It was also reported that Shafqat Ali cannot
go on the roof as the stairs are in possession of
the others. This
recommendation of the Inspector did not find favour with the Rehabilitation
Officer who vide order, dated 23‑10‑1958 (Exh.D.3) dismissed the
said application.
According to the said officer the opening of the said doors
of the two rooms leading the
courtyard would cause trouble to the Pardanashin
ladies of the other parties. Finally, the
learned counsel refers to the order,
dated 6‑2‑1968 of Additional Settlement Commissioner
(Exh.D.6) on
the three appeals filed by the said three transferees as they were not
satisfied
with the demarcation of the house vide said order, dated 8‑7‑1967
(Exh.D.5). According to,
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this order the prayer of Mst. Sardar Begum etc. for

permission to use the stairs and the roof
was disallowed.
 
Reader to the D.S.C., Sahiwal
appeared with record. He stated that Shafqat Ali was given
two rooms, Aziz
Bakhsh was given one rooms and a small veranda and the remaining house
was
given to the present appellants. He also admitted that there is no order on
record
permitting anyone to use the roof of the two rooms given to Shafqat Ali.
Muhammad Sharif,
appellant appeared as D.W.2. In his cross‑examination he
admitted that the correctness of
the plan Exh.P.l and also admitted that the
portion shown in red stands transferred to Shafqat
Ali. Further states that
over the room transferred to him is a Chobara and on the roof of the
Chobara is
his latrine. Also states that there is, over the roof of the rooms of Faqir.
Muhammad, also a Chobara where he is residing. He also admitted the defendants
never
claimed in their statements before the Inspector that the roof of the
rooms of Shafqat Ali is in
their possession. Sardar Begum plaintiff appeared as
P.W.1 and stated that the two rooms
were transferred with roof to Shafqat Ali.
Not even a slightest suggestion was given to her in
her cross?-examination that
the said defendants had been in possession of the roof of the said
two rooms or
had been using the same. Learned counsel for the appellants relies on a reply
to a question by the said lady in cross?examination, whereby she admitted that
an application
was filed for entry of courtyard and the room in P.T.O. which
was not allowed. However,
when considered in the light of the said application
and the orders passed thereon which are
available on record the said admission
is incorrect. Throughout for the, dispute had been
regarding the use of
courtyard and the stairs which user was denied to Shafqat Ali by the
Settlement
Authorities. It is nobody's case that the roof of the said two rooms was not
transferred to Shafqat Ali or that the said roof was not even the
case set up in the pleadings‑
or during the course of evidence that the
defendants had been using the said roof of the two
rooms, admittedly
transferred to Shafqat Ali, as of right. Issues were framed on 7‑5‑1968.
This R.S.A. was filed in the year 1970 and is being heard today. Learned
counsel for the
appellants has not questioned the frame of issues. Issue No.2
clearly gives the impression that
the case of the defendants was that they had
acquired the right of easement over the said roof
of the two rooms transferred
to Shafqat Ali. Needless to add that a right of easement is
always claimed over
the servient tenant which is owned by a person other than the claimant
who owns
the dominant terminant. The said plea of the defendants in the suit by itself
constitutes admission on their part of the ownership of the roof of the two
rooms by the
plaintiffs. The correctness of the plan appended with the plaint,
which is Exh. P‑2 on record,
has been admitted by D.W.2 Muhammad Sharif
appellant. An examination of the said plan
shows that the two rooms are located
on the Western side of the house and are separated
from the rooms in possession
of the defendants and transferred to them by an open
courtyard. According to
law it is well‑settled that unless otherwise mentioned or ordered the
transfer of a premises would mean the transfer from bottom to the sky and this
is the exact
position in the present case. Reference be made to the case of
"Nazir and others v. Syed
Israr Ahmad etc." (1981 SCMR 829) and
"Muhammad Rafique v. Malik Sikander and
others" (1994 CLC 2300).
 
8. So far as the plea regarding
the acquisition of the right of easement is concerned, suffice it
to say that
the final order in the case was passed on 6‑2‑1968 in the
Settlement hierarchy and
the suit was filed on 12‑3‑1968. There is
neither any plea nor evidence on the record that any
of the defendants in the
suit had been using the roofs of the house or the latrine located
thereon as of
right for the period prescribed in section 26 of the Limitation Act, 1908.
There
is, thus, no question of the acquisition of a right of easement by the
defendants in the suit over
the roofs of the said two rooms for the simple
reason that as per record at least till 7‑2‑1968
the property
remained vested in the Federal Government free of all encumbrances.
 
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9. As a result of the above

discussion I find no misreading or non‑reading of evidence on
record by
the learned Courts below while recording their respective judgments and
decrees.
This R.S.A. is accordingly dismissed leaving the parties to bear their
own costs.
 
Q.M.H./M.A.K./F‑13/L
 
Appeal dismissed
 
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