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Civil Petition No. 39‑R of 1983, heard on 23rd October, 1983.

(On appeal from the Judgment and order dated 2‑2‑83 passed by the Lahore High Court, Rawalpindi Bench in R.S.A. Nos. I1 and 12 of 1983.)

‑‑Art. 185(3) read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 & Sched‑Dispute over transfer of staircase‑Overwhelming evidence on record to establish that staircase was for common use of all occupants and also orders of Settlement Authorities to that effect proved‑Supreme Court cannot go into question in presence of credible evidence to establish it‑Leave to appeal refused.

Maulvi Sirajul Haq, Advocate Supreme Court instructed by M. Afzal Siddiqui, Advocate‑on Record for Petitioners.

Respondent No. 1 in person.

Nemo for Respondents Nos. 2 to 7.

Date of hearing : 23rd October,. 1983.

‑In this petition there is a dispute in regard to the use of a staircase by the transferee (the first respondent herein of the premises No. V/86‑A, Naswari Bazar, Rawalpindi City. This portion was a part of the property bearing Nos. V‑85 and V‑86, which was the residential portion. It was transferred to Inamullah khan in 1974 who sold it to Haji‑Muhammad Sharif, and he later sold it & the petitioners herein. The staircase, it was alleged, was a part and the transferee and thereafter the vendees exclusively used part of the residen tial portion and it. The first respondent maintained that it was meant for the common use of all the occupants of the property which was subsequently divided.

As a dispute arose, the first respondent filed a suit on 26th August, 1975 claiming its common use. The first petitioner also filed a suit on 2nd of September, 1975, whereby he also claimed the exclusive use of the stair case. Both the suits were consolidated and decided by a common judgment dated 26th of March, 1981, whereby the first respondent's suit was .decreed and that of the first petitioner was dismissed.

The appeals filed against the judgment and decree of the ‑trial Court was dismissed by the Additional District Judge on the 7th of December, 1982. The regular appeals filed there from also met the same fate as these were dismissed in limine by the High Court on 2nd of February, 1983. The High Court held that, in view of the concurrent finding of fact recorded by the Courts below on the disputed question, it could not interfered with in view of section 100 of the Civil Procedure Code. It would suffice here to recall what the High Court said:‑

"It thus transpires from the aforementioned facts that the only point of controversy between the parties is as to whether 'the disputed staircase is common or it exclusively belongs to the appellants. The parties adduced oral as well as documentary evidence in respect of their respective claim before the learned trial Court. The learned Civil Judge seized of the matter himself inspected the spot. Earlier, a Local Commissioner was also appointed to visit the spot and opined as to whether the staircase was common or otherwise. The trial Court as well as the lower appellate Court have recorded a unanimous finding after taking into consideration the parties evidence and the spot inspection reports recorded by the Local Commissioner and the Court itself that the stair case was a common one and respondent No. 1 was thus entitled to its use for going to the upper portion of his house. This obviously is a finding of fact."

It was strenuously urged by the learned counsel for the petitioners that this non‑current finding of fact should be interfered with as the use of the staircase involved the privacy of the occupants of the residential portion as for reaching the roof of the shop one had to pass through the rooms of the residential portion, which was clearly evident from the report of the Local Commissioner, and this feature invariably established that the staircase was not for common use. Also emphasis was that due weight was not given to the report of, the Local Commissioner.

Our own examination of the material on record. shows that there over whelming evidence to establish that the stair case was for the common use of all the occupants as before the division of the property this was the only access to the top floor. There are also the orders of the Settlement and Rehabilitation authorities which go to show that the staircase was for common use. In this view of the matter, it is not proper for us to go into this question particularly when there is credible evidence to establish it.

The petition fails, which is hereby dismissed.

S. Q. Petition dismissed.

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