Sarfaraz Khan and others Vs Quresh Khan and another

V Judgment Sheet

IN THE PESHAWAR HIGH COART PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No.ll 8-Pt202t

JUDGMENT

Date of hearing 14.11.2023

Petilioners.

(Sarfaraz Khan & others ) : By Mr. MuhammqdAmin Kha:ttah Lach i, odvocate, Resoondents.

(Quresh Khan & others) By: Mr.Momin Shah, advocate ** *** *******!t*!*****

WIOAR AHMAD . J.- Instant revision petition is directed against judgment and decree of learned Additional Disfrict Judge-[V, Kohat, dated 25.1.2021 whereby appeal of respondents was accepted and judgment and decree of learned Civil Judge, Tehsil Lachi, Kohat datedT.3.2020 was set aside

2 Facts of the case giving rise to instant petition are that respondents/plaintiffs brought a suit for declaration-cum-permanent mandatory injunction to the effect that plaintiffs as well as defendants were joint owners of suit property and both parties had constructed their houses thereon and there was a joint path measurng 14 feet wide which had connected the suit land as well as houses of parties with main highway and it had been in use since their forefathers but the

defendant had created hurdles by throwing rocks and tree logs in the path so as to obstruct the path from being used by public as pathway.

Along with suit, an application for temporary injunction was also filed. Respondent/defendant contested the suit and in order to dig out facts qua existence of path, local commission was appointed who submitted his report to the trial court and the learned trial court after hearing arguments on the application, partially allowed the injunction to the extent of use of thoroughfare from Point-B to Point-C as reflected in the site plan annexed with commission report, vide order dated3.4.2017, which was challenged by defendant in appeal and the leamed appellate court accepted the appeal and remanded the case to the learned civil court with direction to first decide report of commission whereafter findings on application be recorded, vide order dated 10.11.2018. However, after remand of the case, learned counsel for the defendant did not press application for temporary injunction and the evidence was directed to be produced in main case. Accordingly, evidence on main case was recorded by both the parties. Plaintiffproduced Patwari Halqa as PW.1 who had brought on record register haqdaran zameen pertaining to year 2010-11

(Ex.PW.l/l). In cross examination, this witness had admitted that no recorded thoroughfare existed on the suit property. PW.2 is Gohar Din who deposed regarding existence of path but with no documentary evidence .PW.3 is Syed Kamal Shah who had stated that he had been using this path since 1975-76. Plaintiffs special attorney , namely Khalid Mahmood Khan was examined as PW.4 who had stated that he had been using this thoroughfare since 1996 . This witness further admitted that house of defendant was constructed earlier than the house of plaintiff. The leamed trial court after going through the evidence of the parties and hearing arguments of their leamed counsel, dismissed the suit, vide judgment and decree dated 7.3.2020.

Feeling aggrieved, plaintiffs filed appeal before the learned Additional District Judge-IV, Kohat which was accepted, vide judgment and decree dated 25.1.2021. Now the defendants/petitioners have filed instant civil revision

a J Arguments heard and record perused.

4 Perusal of record reveals that the jtdgment and decree of two courts below are at variance but in such situation, judgment of the leqrned Appellate Court requires more dffirence. Normally

revisional court is supposed to rely on the judgment of the appellate court if a case of non-reading and misreading of evidence is not found therein. Reliance in this respect may be placed on the judgment of the Honourable Supreme Court in the case of "MgflglSgpg!

Versus Maran Bepari repo rted as 1969 - Court - 617 .

With the assistance of learned counsel for the parties, record was also gone through and judgment of the appellate court was alsofound to be in accordance with law and based on proper appraisal of evidence while judgment of the learned Civil Court was not found maintainable

5 Learned appellate court has rightly relied upon the commission report as same has earlier been upheld by the learned civil court. The report of the commissionwas categorical to the effect that there was no alternate way of the petitioners leading towards main road. The site plan prepared by the local commission and brought in evidence as Ex.CW.1/2 was itself indicating the existence of thoroughfare as well as temporary blockage made by defendant in the thoroughfare. It was also an admitted fact that both the parties were co-owners in the property in dispute. Learned courael for

petitioner contended tlwt the suit could not be decreed by the learned Appellate Court on the basis of easement of necessity because both the parties were co-owners inter se. It is correct that right of easement may be exercised or claimed in respect of land owned by other persons but it is equally correct that co-owners cannot restrain another co-owner from exercise of his right in the thoroughfare which had admittedly been existing on part of the land of co-owners. Since parties were co-owners, therefore, petitioners could not hcne claimed exclusive right of ownership on the thoroughfare in dispute. The learned Appellate Court was not needed to have travelled to the extent of decreeing the suit on easement of necessity, rather respondent No.l/plaintiffwas having a right over the thoroughfare because ofuse ofsame thoroughfare as well as because ofbeing co- owner. One co-owner cannot be allowed to block way of another co- owner in joint immovable property. Report of the commission was sufficient in indicating the existence of thoroughfare as well as its blockage at the hands of petitioners

6.The conclusion drawn by the learned appellate cowt was correct except where learned appellate court had pressed in service a

doctrine of easement. But saidfindings on eyidence of the case would not change nature ofthe reliefgranted by the learned appellant court, Same decree of the appellate court shall be deemed to have been granted to respondent No.l on the basis ofexistence ofthoroughfare on the spot coupled withfact that respondent No.l was also co-owner in the property in dispute. Partition proceedings are pending and the learned appellate court has, therefore, very aptly issued injunctive order till partition of the joint estate. The issue of giving access to respondent No.l towards main higlntay, shall further be decided in the partition proceedings but till then the thoroughfare has rightly been ordered to be kept open.

7 Learned counsel for pelitioners also contended that since earlier application of some of the users of the thoroughfare filed under section 133 Cr.P.C. was dismissed by the learned Judicial Magistrate on 14.3.2019, therefore, civil suit had been barred by the principle of constructive res judicata . But submission of learned counsel for petitioners was not holding any water. Complaint under section 133 Cr.P.C. carries totally dffirent dimensions and considerations for its decision which inter alia also includes existence

of public nuisance while a civil suit may be brought for enforcement of claimedrights. Civil suit canbefiledfor enforcement of prtvate or indivi&nl rights while petition under Section 133 Cr.P.C. cannot be filed for redressal of individual grievances. There are also other points of distinction which need not be discussed in detail, but it is sufficient to note that the order of the Magistrate in crimirwl proceedings cannot be termed to be creating any bm before the civil court while exercising a civil iurisdiction.

8 In light of what has been discussed above, instant civil revision was found lacking any substance and same was accordingly dismissed.

DG

Date of hearing and announcement of Judgme nt 14.1 1.2023

Date ofPrePoration and Signing of Judgnent ...... 23.11.2023

ItLbhrq Sbah (SB) Hor'bt. MrJulthc Whrr Ahl|rd