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Civil Petition for Special Leave to Appeal No. 26‑R of 1983, decided on 12th April, 1983.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench dated 20‑1‑1982 in R.S.A. No.741 of 1979).

--Art. 185 (3) read with Displaced Persons (Compensation and Reha bilitation) Act (XXVIH of 1958), S. 10 be Sched. Transfer of evacuee property ‑ Common passage between two houses separately transfer red to petitioners and respondent alongwith open surrounding land jointly owned by them‑‑‑Leave to appeal‑Granted to consider whether, in absence of demarcation of joint property, respondent could not base a right of easement (on common passage).

S. M. Masud, Advocate Supreme Court with Karam Ellahi Bhatti, Advo cate‑on‑Record for Petitioners.

Bashir Ahmad Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 12th April, .1983.

Petitioners are the occupants of an evacuee house known as 'Parkash Villa' at Murree transferred to them, whereas Mrs. A. Majid, the first respondent, is the occupant of the adjacent house known as 'Kalash Villa' transferred to her. These two houses with another portion transferred to Mst. Fazal Noor and the vacant land attached were originally known as "Springfield Estate" Murree. Mrs. A. Majid filed civil suit against the petitioners for declaration and injunction to the effect that the petitioners have unauthorisedly constructed doors and windows in 'Parkash Villa' opening towards their house, and they be restrained permanently not to interfere in the compound of 'Kalash Villa' and also not to use the passage and infringe rights of easement. The plaintiff also prayed for grant of mandatory injunc tion to the effect that the defendants be ordered to demolish the illegal construc tion, that is, doors, windows, etc.

2. The trial Judge decreed the suit as prayed by .the plaintiff and peti tioners' appeal lo the District Judge succeeded only in part, and finally, their second appeal in Lahore High Court was dismissed.

3. It is in these circumstances that petitioners now seek leave to appeal.

4. After hearing the learned counsel for the parties in the light of the record before us it seems to be the admitted position that whereas two house 'Parkash Villa' and 'Kalash Villa' have been separately transferred to the parties, the common passage between the two houses alongwith open land surrounding them is jointly owned by them. On these facts learned counsel for the petitioners submits that in the absence of demarcation of the joint pro perty, the plaintiff could not base a right of easement.

5. This and the other submissions made in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Security Rs. 2,500.

S. Q. Leave granted

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