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Civil Revision No.206 of 1985, decided on 25th September, 1986.

---S.115--Revision--Respondent No.1 challenging action of respondent No.2 in carving out a plot on northern side of plot of respondent No.1 which had effect of changing nature of plot of respondent No.1 from a corner plot to an ordinary plot--Respondent No.2 allotted plot so carved to petitioner who raised construction thereon which caused nuisance and damaged right of easement of respondent No.1--Findings of both courts below, going in favour of respondent No.1, were neither suffering from jurisdictional defect nor perverse or based on any misreading of evidence but in consonance with documentary evidence on record--Further conclusion arrived by Courts below that respondent No.1 was entitled to allotment of excess land adjacent to his plot also not without jurisdiction--Interference declined in revision, in circumstances.

Ferozuddin v. Lahore Improvement Trust P L D 1969 S C 263 ref.

Shamdas for Applicant.

Muzaffar Ali Khan and Sabir Hussain Kizilbash for Respondents.

Dates of hearing: 19th, 22nd and 25th September, 1986.

This Revision Application under Section 115 CPC is filed by the Applicant/defendant against the two concurrent judgments.

Respondent No.1 who is the lessee of Plot No.III-D-16/7, Nazimabad, Karachi, measuring 216 Sq. Yds instituted suit No.1767/73 alleging that the Plot allotted/leased out to him is bounded by a 60 ft. wide road on towards North, while respondent No.2 illegally, carved out a plot measuring 83.33 sq yds. in between the house of the plaintiff and the road and allotted the same to Petitioner who had raised unauthorised construction thereon which materially affected the beneficial and quiet enjoyment of property by him: He also claimed that under the rules of allotment of respondent No.2, Respondent No.1 alone was entitled to the open space lying in between his plot and the 60 ft wide road. The suit was resisted by the applicant as well as respondent No.2 on several grounds and on the basis of the controversies between the parties the trial court framed the following issues:

(1) Whether the lease deed executed by the defendant No.1 in favour of the Plaintiff places any restriction on the defendant No.1, regarding allotment of open space measuring 83.33 Sq Yds. lying in between the plot of the Plaintiff and 60 ft. wide road

(2) Whether the Defendant No.2 is in occupation of 60 ft. wide road or in portion thereof If yes, whether he has any right to remain in possession therof

(3) Whether the defendant No.1 has already decided to regularise to the defendant No.2, the extra land lying in between the plot and 60 ft. wide road If so whether it is competent to do so

(4) Whether the defendant No.2 has encroached upon the right of easement of light and air of the plaintiff If so what is the effect

(5) Whether in terms of allotment order dated 28-6-1973 issued and executed in favour of Plaintiff by defendant No.1, there existed any extra plot of land in between 60 ft wide road on the North side of the demised plot If so what is the effect

(6) Whether the statutory notice served by the Plaintiff on the defendant No.1 is illegal or not proper"

(7) Whether 60 ft. wide road actually existed on the North side of the Plaintiff's plot

(8) Whether the suit is liable to be rejected U/O; Rule 11 CPC. --- If so what is its effect

(9) Whether the suit is barred by limitation If so what is its effects

(10) Whether the suit is framed as maintainable

(11) What relief the Plaintiff is entitled to

(12) What should the decree be

On issues No.1 and 5 which were the main issues in the case, the course below reached the conclusion that the respondent No.2 after having executed the lease deed in favour of the respondent No.1 could not lease out open space measuring 83.33 sq. Yds. lying in between the plot of the plaintiff and 60 ft. wide road to any other person as such act on the part of respondent No.2 amounted to a breach of the covenant of the lessor under the Transfer of Property Act and also interfered with the beneficial and quiet enjoyment of property by him. It was also found by the courts below that in view of the provisions of Disposal of Lands and Estate Regulations framed under Act 15 of K. D. A. Order of 1957, the open space in between the road and the plot of respondent No.1 could be allotted only in favour of respondent No.1. On issues 2, 3, 4 and 6 it was held by the trial court that the petitioner was in possession of 60 ft. wide road in addition to the open space in between the plot of respondent No.1 and the road, and that respondent No.2 was not competent to regularise or allot this disputed piece of land to Petitioner. With regard to the alleged right of easement claimed by respondent No. 1, it was held by the trial Court that although easement rights claimed by the Plaintiff/ respondent No.1 did not accrue to him in strict sense but in view of the fact that the use of the open space adjacent to the plot of respondent No.1, by the petitioner amounted to nuisance and injury to the property of the respondent No.1, he was entitled to ask for removal of such unauthorised structure built by the Petitioner. The first appellate court concurred with the findings of trial Court on all the above issues as well except on issue No.2, whereunder the Ist appellate court reached the conclusion that the Petitioner was not in possession of any portion of the road but was only in possession of open space lying in between the plot of the plaintiff /respondent No.1, and the 60 ft wide road. Learned counsel for the Petitioner as well as respondent No.2, jointly urged that there being no fetters on the powers of K.D.A. under any law to allot the land which was lying vacant in between the plot of respondent No.1 and the road, the allotment made by it to the Petitioner could not be held illegal at the instance of respondent No.1 who had no right in the said plot. It is contended jointly by the learned counsel that the open space lying in between the plot of respondent No.1 and the 60 ft. wide road being the property of respondent No.2 the same would be utilized in such manner as the said respondent thought fit and no grievance could be made by anyone including respondent No.1 in this behalf. After hearing the learned counsel for the parties at length I am of the view that no illegality of any jurisdictional nature in the judgments and decrees of the courts below could be A pointed out by the Petitioner which justified interference by this court in its revisional jurisdiction. It is an admitted position that the plot bearing No.III-D-16/7 measuring 216 Sq. Yds. was allotted in the year 1965 to one Ajmal by the respondent No.2. The said Ajmal sold his rights in the plot to respondent No.1 and respondent No.2 subsequently leased out the same in favour of respondent No.1 through a registered lease deed executed on 28-6-1973. The boundaries of the above plot both in the allotment order issued in 1965 and in the registered lease executed in 1973 are shown as towards north bounded by 60 ft. wide road only. It is also an admitted position that in between the 60 ft. wide road and the plot leased out to respondent No.1 there is some open space which was not allotted to anyone either at the time of original allotment of this plot to Ajmal at the time of execution of lease in favour of respondent No.1. It is also not disputed by the learned counsel for respondent No.2 that under the provision of allotment rules relating to allotment of land relied by the courts below, the respondent No.1, as an allottee of a regular plot will also be entitled to allotment of open space lying in between his plot and the road in normal circumstances, but it is contended that in view of the fact that the K.D.A. decided to treat this open space as an independent plot, it would not be allotted to respondent No.1. It is quite clear from the evidence produced before the learned trial court that at the time of execution of the registered lease in favour of the respondent No.1, the boundaries as shown in the original allotment order were fully maintained. The finding of the two courts below on the basis of the boundaries given in the registered lease deed is that the plot allotted to respondent No.1, was a corner plot.

This finding of the court below is neither perverse nor based on any misreading of evidence. On the contrary it is quite in consonance with the documentary evidence on record. The point for consideration in these circumstances, is whether carving out of a plot on the Northern side of the plot of respondent No.1 by respondent No.2 had the effect of changing the nature of the plot of respondent No.1, from a corner plot to an ordinary plot. The two Courts below rightly held that by carving out the plot in between the plot of respondent No.1 and the 60 ft wide road, the plot of respondent No.1, lost the status of a corner plot as now it is bounded on towards North by the plot proposed for allotment to Petitioner and not by a 60 ft wide road as shown in lease deed. This finding by the courts below is also based on cogent reasons and is well supported by the evidence on record and as such needs no interference The only argument in support of the action of respondent No.2 in carving out a new plot advanced by the Petitioner, and respondent No.2 is that such an action on the part of respondent No.2 is not opposed any of the provisions of K.D.A. Order and as such it could not challenged by respondent No.1. To support this contention the counsel cited the case of Ferozuddin v. Lahore Improvement Trust (P L D 1969 S C 263). The case cited by the learned counsel has no application to the facts and circumstances of the present case. As pointed out earlier in the present case the courts below found that as a result of carving out a new plot on the open space in between the plot of respondent No.1, as the northern side, the respondent No.2 changed the status of the plot of respondent No.1 from a corner plot to an ordinary plot which respondent No.2 could not do under the law. This conclusion by the courts below is neither contrary to evidence on record nor was it arrived at by exercise of Jurisdiction which did not vest in the courts below nor it is in excess of Jurisdiction vested in courts below. Respondent No.2 having leased out the plot in favour of respondent No.1 could not unilaterally change its status and boundaries. Apart from it the courts below also reached the conclusion that under the existing rules of K.D.A. regarding allotment of excess land adjacent to the plot of an allottee the respondent No.1 was entitled to the open space lying in between his plot and the 60 ft. wide road. This conclusion is also not without justification as no special circumstances existed in the case which warranted disposal of this small piece of excess land to a person other than respondent No.1. No case for interference is made out. The revision petition accordingly dismissed but there will be no order as to costs.

M.Y.H./B-25/K Petition dismisses.

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