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Civil Petition No. 1083 of 1976, decided on 2nd November, 1981.

(On appeal from the judgment dated 11‑11‑76 of the Lahore High Court in R. S. A. 860 of 1976).

‑‑ S. 42 read with Civil Procedure Code (V of 1908), O. XXIII, r. 3- Declaratory suit‑Compromise‑Copy of compromise showing strip of land in dispute having been transferred by petitioner to respondent and petitioner being left with no right in land‑High Court, held, rightly held dispute in previous case having been with ownership of land in dispute and petitioner having reserved no title or right in such land‑Compromise previously effected between parties, held further, could be legitimately interpreted in manner done by Courts below.

Iftikhar‑ul‑Haq Khan, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd November, 1981.

‑The relevant facts giving rise to this petition are that on 8‑6‑1970, the petitioner filed a suit against the respondents, while Said Muhammad, respondent, filed a cross suit on 7‑3‑1973 and both were dismissed by a consolidated order passed by the Court of Civil Judge, Jhelum. The dispute between the parties, it may be mentioned, was with regard to a private street, which the plaintiff, in each case, claimed to be his, while the defendant therein denied the others claim. The suits were for a declaration that the said street belonged to the plaintiff in each 'suit and the defendant had no right in the same and for a perpetual injunction to restrain the defendant from making any construction on it and making drains on it. In the suit filed by the petitioner, the defendant‑respondent Said Muhammad etc. denied the allegation of the plaintiff and Said Muhammad also asserted that he was the sole owner and further that the plaintiff had surrendered his right by an agreement dated 21‑11‑1968.

The trial Court, as already stated, by its judgment, dated 7‑1‑1976, dismissed both the suits by a consolidated order. Both the parties appealed against the said judgment before the District Judge, who, in his order dated 30‑10‑1976, observed that the material question in dispute between the parties was "whether the disputed lane is a private lane of Hafiz Abdur Rehman (petitioner herein) and that Muhammad Khan (one of the defendants in the said suit) had no concern with it or vice versa". Ultimately, the learned District Judge rejected the appeal of the petitioner and accepted that of the Despondent Said Muhammad. The petitioner, therefore, filed a second appeal (R. S. A. No. 860/76) before the Lahore High Court but the same was dismissed in limine by a learned Single Judge on 11‑11‑1976 holding that in the earlier litigation between Hafiz Abdur Rehman and Said Muhammad a compromise was filed in Court, according to which the street measuring one marls on the west of the house of the petitioner was transferred to Said Muhammad, respondent; therefore, the petitioner had no right in the lane. As to the objection of the petitioner that the document of compromise required stamp duty and registration it was observed that even if the valuation of the property was more than Rs. 100, it did not require the registration, as the parties had entered into a compromise during the hearing of the proceedings. The appeal was dismissed on this view of the matter. Hence this petition for leave to appeal.

This petition came up for hearing before this Court on 13‑2‑1979 and it was observed that it was not properly documented and the learned counsel directed to produce a copy of the plan, Exh. P. 3, copies of the compromise between the parties arrived at in the previous suit and the decree passed therein.

Mr. Iftikhar‑ul‑Haq Khan, who appeared for the petitioner has produced before us the copy of the compromise, which was effected between the parties and after going through it we are satisfied that the learned Judge in the High Court was right in taking the view that the dispute in the previous case was in connection with the ownership of the lane and the petitioner herein did not reserve or title any right in it. Hence the previous compromise could legitimately be interpreted in the manner which had been done by the Courts below. As for the plea that in these circumstances the case was not governed by the provisions of Order XXI, rule 1, C. P. C. but that Order XXIII, rule 3, C. P. C. was, in fact, applicable, we are not inclined to examine this aspect of the matter, as we feel that the Courts below have rendered a correct and just decision in the case.

This petition must, therefore, fail and is dismissed hereby.

Petition dismissed.

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