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Second Appeal No.131 of 1979, decided on 13th November, 1986.

---S.10--Settlement Scheme No.I, paras.37, 38 & 40--Transfer of evacuee property-- Existence of premises--Proof--Non-existence of entry in evacuee property register in respect of premises in dispute alone, held, would not be sufficient to establish that no such premises existed in building where transfer documents on record clearly showed that premises were transferred by Settlement Authority to transferee thereof and price of same was also charged from transferee.

---S.100--Specific Relief Act (I of 1877), Ss.42 & 54--Suit for declaration and permanent injunction--Concurrent judgment and decree--Appellate jurisdiction, exercise of-- Premises in possession of defendants/ respondents intended to be reconstructed by them actually was not in existence at time of transfer thereof, but was subsequently constructed--Such premises admittedly not extending to portion in building which was transferred to appellant--Appellant, held, was entitled to relief of injunction claimed to restrain respondents from raising any construction on roof of premises occupied by him--High Court in exercise of appellate jurisdiction set aside concurrent judgment and decree passed by two Courts below, decreed suit filed by plaintiff /appellant to the extent that respondents would permanently be restrained from raising any construction on roof of premises transferred to appellant.

M. Badrudduja Khan for Appellant.

Hassan A.Shaikh for Respondents.

Date of hearing: 13th November, 1986.

This second appeal under section 100 is directed against the two concurrent judgments of the Courts below.

2. The plaintiff who is the purchaser from the transferee of premises No. G-2 in building No. AM 22-III-B-36, Artillery Maidan, Frere Road, Karachi, instituted a suit for declaration and permanent injunction against the respondents claiming that the respondents are not entitled to raise any construction on the roof of shop No.G-2, transferred to his predecessor-in-interest. It was also claimed in the suit that the appellant is entitled to use the W.C. and bath which is admittedly situated in the premises namely G-1 in the same building. The Courts below rejected the claim of the plaintiff both with regard to the use of the bath room and W.C. as an easement, as well as, his right to restrain the respondents from raising any construction on the roof of shop G-2. After I heard this appeal at some length Mr.Badarudduja Khan, learned counsel for the appellant conceded that in so far the relief regarding common use of W.C. and bath room as an easement is concerned the same cannot be granted to the appellant but he challenged the right of the respondents to construct on the roof of shop G-2 transferred to his client and pressed his appeal in that regard only. In support of his contention learned counsel invited my attention to several documents on record to establish that premises No.1/1 does not exist in the record of Evacuee Property Register and as such its transfer to respondents is invalid. It is true that the extracts from evacuee property register produced by the appellants and respondents do not show, existence of any tenement on the first floor as 1/1 but non-existence of entry in the E.P.R. alone is not sufficient to establish that no such premises existed in the building. The transfer documents on record do show that respondents were transferred alongwith G-1, G-4, G-5 and G-6 on the ground floor of the building, one tenement on the 1st floor of the building described as 1/1, on their C.S. form. The transfer documents to favour of respondents further show that settlement authorities had charged price for transfer of tenement No.l/1 on the) first floor of building. It is, therefore, not correct to say that there was no premises as 1/1 in existence in the disputed building. The question which, however, required determination by the Courts below in this case was whether the premises No. 1/1 transferred to respondents was constructed over the roof of all the tenements of the building the ground floor of the constructed area of 1/1 or was restrict": only over the roofs of some of the tenements of the ground floor. In this regard there is neither any detail in the extracts of Evacuee Property Register produced by the parties as Exhs.8 and 8-A on record nor such details are available in the Permanent Transfer Deed issued in favour of the respondents. Mr.Hassan A.Shaikh, learned counsel for the respondents very vehemently contended that in the absence of the details of accommodation in the transfer document should be presumed that whole of the first floor of the building was transferred to the respondents. The argument advanced by the learned counsel for the respondents cannot be accepted for two reasons. Firstly, from the evidence on record it is quite clear that tenement No.l/1 was not originally in existence at the time when this property became evacuee as there is no entry regarding its existence in the evacuee property register. It appears to have been constructed subsequently which the Settlement Authorities treated as an accretion to the evacuee property and transferred it as such. Secondly, the property having been transferred as a shop on the C.S. form of respondent alongwith premises No.G-1, G-4, G-5 and G-6, it cannot be assumed that the premises on the first floor was a residential premises consisting of living rooms, bath room, courtyard and other amenities. In these circumstances, and in view of the fact that there is no documentary evidence available on record to show the extent of accommodation of tenement No.1/1, the oral evidence in this case led by the parties is relevant for determining the accommodation of tenement No.1/1. One of the respondents who was examined before the trial Court, in her statement stated on oath that premises No.1/1 consisted of a room constructed on the first floor. In her Cross -examination the witness admitted that she is unable to say whether the room on the first floor was constructed in G-1, G-2, G-3, G-4, G-5 or G-6. However, she categorically admitted that the room referred to by the witness was not on G-2 or G-3. In view of this admission by the respondent's witness in her cross-examination, it is quite clear that what was transferred to the respondents as 1/1 by the Settlement Department was a room on the first floor which was admittedly not constructed on premises G-2 transferred to the appellant. Mr.Hassan A.Shaikh, learned counsel for the respondents contended that as there is no access available to appellant for going to the roof of G-2, it cannot be held that the roof of G-2 formed part of the premises transferred to the appellant. It is also contended by the learned counsel that in any case there being no declaration sought by the appellants in the suit with regard to his title in respect of the roof of the premises G-2, it is not necessary for this Court to go into this question. After hearing the learned counsel ;or the parties I am of the view that as the appellant has not claimed any declaration with regard to this question in this suit, however in view of the clear admission of respondents before the trial Court in evidence that the room on the first floor transferred to them was not constructed on G-2, the appellant/ plaintiff was entitled to the relief of injunction claimed in the suit to restrain the respondents from raising any construction on the roof of G-2. I accordingly partly allow this appeal, set aside the judgments and decrees of the Courts below and decree the suit of the plaintiff only to the extent that the respondents are permanently restrained from raising any construction on the roof of premises G-2 transferred to the appellant. In the circumstances of the case there will be no order as to costs.

H.B.T./A-97/K Appeal partly allowed.

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