SARFARAZ KHAN vs QURESH KHAN Ss — 2024 CLC 1922 PESHAWAR-HIGH-COURT

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SARFARAZ KHAN VS QURESH KHAN Ss.42 & 54---Civil Procedure Code (V of 1908), S.11---Criminal Procedure Code (V of 1898), S.133---Suit for declaration with permanent injunction---Dispute regarding obstruction in thoroughfare on the joint land being used by co-owners---Whether easement of necessity applied---Report of Local Commission qua existence of thoroughfare and obstruction by some co-owners---Trial Court dismissed the suit---Appellate Court allowed the appeal preferred by the respondents---Contention of the petitioners was that suit could not be decreed by the Appellate Court on the basis of doctrine of easement, as the parties were co-owners inter se and since earlier an application under S.133, Cr.P.C., was dismissed, therefore, suit was barred by principle of constructive res judicata---Validity---Right of easement may be exercised or claimed in respect of land owned by other persons but it is equally correct that co-owners cannot restrain another co-owner from exercise of his right in the thoroughfare, which had admittedly been existing on part of the land of co-owners---Appellate Court was not required to have travelled to the extent of decreeing the suit on easement of necessity, rather respondent was having a right over the thoroughfare because of use of same thoroughfare as well as because of being co-owner---One co-owner cannot be allowed to block way of another co-owner in joint immovable property---Conclusion drawn by Appellate Court was correct except where it had pressed in service doctrine of easement, but said findings on evidence of the case would not change nature of the relief granted by Appellant Court---Complaint under S.133, Cr.P.C., carries totally different dimensions and considerations for its decision, which inter alia also includes existence of public nuisance, while a civil suit may be brought for enforcement of claimed rights---Civil suit can be filed for enforcement of private or individual rights while petition under S.133, Cr.P.C., cannot be filed for redressal of individual grievances, thus, order of the Magistrate in criminal proceedings cannot be termed to be creating any bar before the Civil Court while exercising civil jurisdiction---Civil revision was dismissed accordingly.

SARFARAZ KHAN vs QURESH KHAN Ss — 2024 CLC 1922 PESHAWAR-HIGH-COURT

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