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Civil Revision No. 1235 of 1985,decided on 8th February, 1987.

---O.III, R.4--Vakalatnama--Powers of counsel--Vakalatnama, executed by clients in favour of their counsel though would empower counsel to compromise suit, but would not confer authority to sell property without special instructions or authorisations to him in that respect--Any statement made by counsel in Court regarding sale of property of clients, held, would not be binding on clients if same was made without special instructions and authorization on behalf of such clients.

---O.III, R.4--Statement of counsel made without special authorization- Effect--Where counsel made statement in Court regarding sale of property of his clients to opposite party without special instructions or authorization of clients in that respect and while making such statement counsel failed to disclose that some of his clients were minors and as such their permission was also not sought, such statement of counsel, held, would not be binding on his clients.

---Ss. 54 & 55--Suit for perpetual and mandatory injunction--Plea of limitation--Plea of defendants that suit for perpetual and mandatory injunction filed by plaintiff was barred by time was neither specifically taken by them nor any issue on that question was ever claimed or framed--Evidence on record proved that same was neither time-barred on basis of right of adverse possession nor on basis of prescriptive right of easement of defendants--Findings of two Courts below that suit was barred by time, held, were uncalled for and unwarranted, especially when two Courts below failed to mention any relevant Article of Limitation Act in that respect.

---Ss. 54 & 55--Suit for perpetual and mandatory injunction- Maintainability of--Where a building was jointly transferred to different parties and a portion of such building was transferred for common use of such transferees by order of competent authorities, none of the parties, held, had right to appropriate, such portion for his exclusive use, especially when other party had objected to it--Plaintiff's suit for perpetual and mandatory injunction against defendants who by violating order of competent authority, had unauthorisedly constructed for his exclusive use, on portion reserved for common use, was, maintainable in circumstances.

---S. 115--Specific Relief Act (I of 1877), S. 54--Revisional jurisdiction, exercise of--Where a matter was finally settled by competent authorities, judgments and decrees passed by two Courts below merely on basis of oral evidence of witnesses and ignoring such settlement of competent authorities, held, could not be sustained--High Court accepting revision set aside judgments and decrees of two Courts below.

Ch. Fazal Hussain for Appellants.

Muhammad Ahmad Bani for Respondent No.1.

Ch. Muhammad Sarwar for Respondents Nos. 2 to 6.

Date of hearing: 23rd December, 1986.

This civil revision under section 115, C . P . C arose out of a suit filed by Sardar Ali predecessor-in-interest of the petitioners for perpetual and mandatory injunction against Ghulam Nabi predecessor-in interest of the respondents. Sardar Ali and Ghulam Nabi died during the pendency of the suit and their legal representatives were brought on record. They were the joint transferees of the house in dispute in the manner that the ground-floor and the inter-floor were transferred to Ghulam Nabi while Sardar Ali was the transferee of the upper-storey. Sardar Ali filed a suit on 19-11-1977 alleging that according to the order of the High Court the latrine could be built within the inter-floor or the ground-floor, the transferred portion but the respondents in violation of the said order have illegally and unauthorisedly constructed a latrine in the Deurhi with the result that the same has become a source of great nuisance to the petitioners. The suit was resisted by the respondents and after framing issues and recording evidence, the learned trial Court vide its judgment and decree dated 13-12-1984 dismissed the suit on merits, with the observation that the suit was also barred by time. The appeal filed by the petitioners also failed vide judgment and decree dated 14-4-1985 of the learned Additional District Judge, Gujranwala. The findings of fact and law recorded by the learned trial Court were thus, affirmed. This led to the filing of the present revision petition.

2. This Court vide order dated 18-6-1985 directed the respondents to enter appearance at the motion stage as it was complained that the existence of the latrine in the Deurhi was a source of continuous nuisance. Ch. Muhammad Ahmad Bani, Advocate, entered appearance on behalf of the respondents. One of the respondents, namely, Muhammad Khalid Mahmood, also appeared with him. Learned counsel for the parties on 20-11-1985 sought time to settle the matter, amicably. On 2-12-1985 Ch. Muhammad Ahmad Bani, Advocate and Khalid Mahmood, respondent No.1, stated that the respondents were prepared to sell their portion of the house to the petitioners at the market value which may be assessed by an Engineer to be appointed by the Court. This offer was accepted 'by the learned counsel for the petitioners and Muhammad Akbar, petitioner No.3. Accordingly with the consent of the parties Mr. Tariq Saeed, ex-Municipal Engineer, Municipal Corporation, Gujranwala, was appointed Local Commission to assess the value of the portion i.e. the ground-floor and inter-floor of the house in question The Municipal Engineer submitted his report assessing the value of the portion belonging to the respondents at Rs.1,03,720 (Rupees one lac, three thousand, seven. hundred and twenty). The respondents objected to this valuation and sought time to produce documentary evidence to establish that the market value of the land and the super-structure was much higher than the one assessed by the Municipal Engineer. The matter was adjourned to 27-1-1986. On this date Ch. Muhammad Ahmad Bani, Advocate, withdrew his power of attorney in respect of respondents Nos. 2 to 6 as they had engaged Ch. Muhammad Sarwar. Advocate, to represent them. Learned counsel for respondents Nos.2 to 6 took up the position that neither Khalid Mahmood, respondent No.1, nor Ch. Muhammad Ahmad Bani, Advocate, were authorised on behalf of respondents Nos.' 2 to 6 to make the offer to sell the portion the house belonging to them to the petitioners at the market value assessed by the Engineer to be appointed by the Court nor the assessment made and reported was binding on the respondents represented by them as two of the respondents were minors and permission to enter into a compromise on their behalf was not obtained. He added that though respondent No.1 Khalid Mahmood is the son of one of the respondents and brother of the other respondents but he was living independently in a house constructed by him whereas the other respondents cannot afford to sell the portion owned by them as they have no resources to purchase another house.

3. The first question which arises is whether the respondents including respondent No.1 are to be held bound by the offer to sell made by respondent No.1 and the counsel for the respondents as well and accepted by the petitioners. As regards respondent No.1 there is no doubt in my mind that he is bound by the statement made. Now the effect of the statement made by Ch. Muhammad Ahmad Bani, Advocate, is to be seen and determined. Ch. Muhammad Ahmad Bani, Advocate, made the statement on the instructions of Khalid Mahmood respondent No.1 and on the basis of the power of attorney executed in his favour by the other respondents Khalid Mahmood admittedly held no, power' of attorney on behalf of these respondents. The Vakalatnama' though includes the power to compromise but it does not confer the power to sell the property subject matter of litigation. It is true that a compromise may be of the whole suit or a portion thereof and may even include matters that do not relate to the suit but for the purpose of including, the matters falling outside the scope of the suit there has to be a specific authorization. ,In the absence of such special instructions or authorization it will not be safe to hold the party bound by every sort of arrangement entered' into by a counsel. In the instant case for another reason as well I am not inclined to hold these respondents bound by the aforesaid statement. Respondents Nos.4 and 5 are stated to be minors. Learned counsel while making the aforesaid statement did not disclose that two of the respondents being represented by him were minors and as such permission was not sought for entering into the compromise on their behalf as well. . The case of these minors and their widowed mother was that they have no resources to purchase another house and if the portion which is their only shelter is sold out to the petitioners they would be rendered shelter-less and that the compromise entered by the learned counsel, if accepted, would seriously prejudice the rights of the minor respondents. For both the above stated reasons, respondents Nos.2 to 6 cannot be held bound by the offer made by respondent No.1 and Ch. Muhammad Ahmad Bani, Advocate. Though respondent No.1 is bound by the statement made by him but as the agreed arrangement -has failed to the extent of the share in the house of respondents Nos.2 to 6, it will not be fair to thrust the remaining arrangement over the petitioners. The sale of share of respondent No. 1: alone would not be beneficial to the petitioners. In view of above, the question of market value of the portion owned by the respondents need not be gone into. It is, however, unfortunate that because of the lapse of the learned counsel and the conduct of respondent No.1 much of the public time was wasted.

4. Now coming to the merits of the case, it will be recalled that the case of the petitioners was that the entrance to the house and the stair-case were transferred for common use and as such no portion of the same could be appropriated for elusive use by any party. It was asserted that the cause of action arose a few months prior to the institution of the suit on account of the construction of the latrine in the common entrance. In the written statement filed in January 1978 the position taken by the respondents was that they were using the latrine which was constructed 15/16 years ago. It is pertinent to note that neither any plea, that the suit was barred by time, was taken specifically nor any issue on. the question of limitation was framed or even claimed.

5. The evidence produced by the respondents on issue No.4 pertaining to merits of the case may now be examined. Abdul Hayee, Building Inspector D.W.1, deposed that on an application dated 28-4-1965 permission was granted to construct the latrine vide order dated 15-5-1965. In cross-examination the objection raised by the predecessor -in-interest of the petitioners and certain proceedings taken thereon were deposed to by this witness but nothing was said as to when the latrine was actually constructed. Muhammad Aslam, D.W.2, deposed that he knew the parties since 1966 and he had been seeing the latrine since then. Shah Muhammad, D.W.3, deposed that the latrine in dispute was there since the last twenty years. This statement was recorded on 30-5-1984. Thus, according to this witness the latrine was constructed in 1964. Khalid Mahmood, respondent No.1, appeared on behalf of the respondents as D.W.4 and deposed in examination-in-chief that they had built the latrine in 1965. In the same breath he stated that the suit was filed after nine years of the construction of the latrine. Both the learned Courts below were of the view that the suit was barred by time. No mention of the relevant Article of the Limitation Act was, however; made in both the judgments. If the right was claimed on the basis of adverse possession then the suit was not barred by time as Khalid Mahmood one of the respondents himself admitted that the suit was filed only nine years after the alleged exclusive use of the place as latrine. If the claim was based on prescriptive right of easement still the suit was within time as the use and enjoyment admittedly was not for a continuous period of twenty years prior to the institution of the suit. These two examples have been given in order to lay emphasis on the point that in the circumstances of the case the question of limitation should not have been gone into as neither any plea was specifically taken nor any issue was claimed or framed. The observations made in this respect by the learned trial Court and affirmed by the learned appellate Court was, therefore, uncalled for and unwarranted in law. On merits the right was contested with the plea that the respondents had the right to construct the latrine in the entrance and the construction made was not in violation of the order of transfer passed by the High Court or settlement arrived at between the parties. The order passed in L.P.A. No.633 of 1963. On 20-1-1965 proceeded on a settlement arrived at by the parties and the same as incorporated in the judgment reads as under:-

"The ground-floor and the inter-floor shall stand transferred to Ghulam Nabi, respondent. The entrance to the house and the stair-case will be used as common while the upper-floor alongwith the stair-case be transferred to Sardar Ali appellate. Ghulam Nabi respondent will have no access to the upper-floor transferred to Sardar Ali appellant and he shall at his own cost construct a latrine for his use either on the ground-floor or on the inter-floor as the case may be."

A bare perusal of the above settlement shows that the respondents were to construct a latrine for use either on the ground-floor or on the inter-floor. Had the parties contemplated that the latrine may be constructed in the entrance the same would have been provided in the afore-noted settlement and the transfer order. The entrance was treated separately from the ground-floor and the inter-floor, which were to stand transferred to the respondents. The entrance and the stair-case were reserved for common use and as such none of the parties has the right to appropriate a portion of the same for its exclusive use especially when the other party is objecting to it. It will be seen that both the learned Courts below did not keep in view the afore-noted settlement which formed the basis of the transfer order and instead referred to the statements made in this respect by the witnesses. On this question the oral statements obviously are of no utility. The construction of the latrine made by the predecessor-in-interest of the respondents in the Entrance was violative of the right vesting in the petitioners. They were, therefore, justified in seeking the mandatory injunction restraining the respondents from violating their right or using the entrance in violation of the order passed in L.P.A. No.633 of 1963. The judgments and decrees passed by the learned Courts below cannot, therefore, be sustained. The revision petition is accepted and the judgments and decrees of both the learned Courts below are, therefore, set aside with the result that the suit of the petitioners is decreed with costs throughout. The sum of Rs.1,500 (Rupees one thousand and five hundred) the fee of the Local Commission paid by the petitioners shall be treated as cost awarded against respondent No.1 only.

H . B. T. /M-76/L Revision accepted.

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