P L D 2012 Peshawar 63 (PLP)

SHAH JEHAN KHAN YOUSAFZAI, J.

This Revision Petition is directed against the concurrent findings of the two courts whereby the petitioners/plaintiffs (hereinafter be called petitioners) were non-suited for the grant of requisite decree for declaration regarding use of thoroughfare (un-metalled road) bearing khasra No.1015 in Mouza Chalyar Tehsil Khawza Khela District Swat in between Shahi Road Madyan Khawza Khela Road up to land bearing khasra No.999 wherein residential house of petitioners is located of the said Mouza which remained in use of the petitioners and inhabitants of Dheran Pattay and is the only thoroughfare for the use of petitioners and that respondent cannot deprive the petitioners from its use as of right or to make any obstruction at any point in its use. It was also prayed that the entry of the said disputed thoroughfare/road in the revenue record exclusively in the name of respondents/defendants (hereinafter be called respondents) bearing khasra No. 1015 is illegal and ineffective upon rights of petitioners, against shariah and facts and have got no effect upon the right of petitioners and inhabitants of Dheran Pattay and liable to correction. They also prayed for perpetual injunction against the respondents fully explained through the sketch appended with the plaint against any sort of restriction, closure, erection of wall. Also prayed for correction in the revenue record to the effect that instead of recording khasra No.1015 as owned by the respondents be recorded as non-metalled road under the use of petitioners as of right and general thoroughfare for public.

2. In the averments of plaint, it was contended that the disputed non-metalled road fully described above is the only thoroughfare and remained in the use of petitioners and inhabitants of Dheran Pattay. The respondents on the strength of entry in the revenue record recorded as their title erected at the last end and in front of the residential house of the petitioners put sand, stones and bushes illegally, immorally and against Shariah have obstructed the passage of petitioners to their residential house and there is no other way for passage of petitioners leading to their residential house. The entry in the revenue record in the name of respondents without mentioning that the same remained under use of petitioners and inhabitants of Dheran Pattay, also the respondents for use as thoroughfare since indefinite period.

3. The petitioners approached the S.D.M. Tehsil Khawza Khela against the obstruction created by respondents in the use of disputed the roughfare through an application dated 18-1-2010. On the said application an enquiry on the spot was conducted through patwari halga. The Girdawar submitted a factual inquiry report which was prepared on the spot in presence of the parties regarding khasra No.1015 measuring kanals 6 marlas recorded as "Ghair Murnkin Rasta" which is recorded to the revenue record as owned by the respondents. Khasra No.1015 remained as "Ghair Mumkin thoroughfare" since ancient time but is Wned by the respondents. There is adjacent khasra No.999 measuring have 7 marlas out of which over an area of 1 kanal, the petitioners have constructed residential house which is owned and possessed by them For approach to khasra No. 999, Khasra No.1015 is the only source horoughfare and now the respondents recorded owners have bi sed khasra No.1015 near residential house of petitioners by putting debris in the thoroughfare. The respondents took a stance that the plated khasra number is their personal ownership and though there is thoroughfare .but since owned by them nobody can interfere in it. The said report was produced as Exh.P.W.5/1. The DDO (Judicial) termed the dispute between the parties as of civil nature; therefore, the petitioners/plaintiffs were directed to approach the Civil Court for the redressal of their grievances which necessitated filing the instant suit.

4. The respondents/defendants contested the suit on legal and factual grounds and the trial Court framed 11 issues including the relief Both the parties were allowed to produce pro and contra evidence in. support of their respective contentions and at the conclusion of trial after hearing the learned counsel for the parties, the Civil Judge/Illaqa Qazi, Khwaza Khela, dismissed the suit of petitioners bearing No. 21/1 of 2010 through judgment and decree dated 30-9-2010 and same was challenged in Appeal No. 7/13 of 2011 which was dismissed and decree was kept intact by the Additional District Judge II/Izafi Zilla Qazi, Swat vide impugned judgment and decree dated 29-1-2011.

5. Since the thoroughfare was closed by the respondents, the petitioners also applied for temporary injunction to remove the bushes and debris put in the thoroughfare by the respondents. The trial Court appointed his bailiff to visit the disputed site and to submit his report. On 9-2-2010 he visited the disputed thoroughfare in presence of parties, prepared a sketch and recorded statement and submitted his report stating therein that there is a general thoroughfare leading from Main Road up to the hills and the house of plaintiffs which is adjacent to the canal. Towards east from the house of plaintiffs there is 13 feet wide canal and towards west of their house there are houses of different people. In the appended sketch mark the thoroughfare described through "A" is the only passage way for the plaintiffs and remained in their use as thoroughfare in the past. The respondents have put imbushes adjacent to the water channel about 2 feet wide and after digging the thoroughfare stones have been put in it whereby the thoroughfare leading to the residential house of the petitioners has been locked. The disputed thoroughfare marked "A" was measured as 16 feet wide and 39 feet long and except this thoroughfare marked "A" there is no substituted way for the use of petitioners leading to their house. On receipt of report of the bailiff the trial Court directed the respondents to open the disputed thoroughfare till the disposal of application for temporary injunction. On 17-4-2010, the interim temporary injunction was confirmed after holding that there is prima facie case in favour of petitioners, balance of, convenience also lies towards the petitioners and they shall suffer irreparable loss if the temporary injunction is not granted.

6. I have heard the learned counsel for petitioners who submitted that it is undisputed fact that khasra No.1015 is recorded as thoroughfare and its width is 16 feet and length 37 feet and remained in the use of petitioners, respondents and inhabitants of Dheran Panay. The inhabitants of the area -including the petitioners used the disputed thoroughfare for passage through motorcar, small vehicles, tractors etc and there is no substituted thoroughfare leading to the house of petitioners and for small vehicles. It is stated that there is sui-gas pipe line laid in the disputed thoroughfare. The house of petitioners was constructed about 30 years before the institution of suit which fact has not been disputed by the defendants either through cross-examining the plaintiffs' witnesses or producing any evidence in rebuttal in this regard. The petitioners have acquired by prescription the "right to use" the disputed thoroughfare for approach to their residential house. Under Section 26 of the Limitation Act, the petitioners were entitled for grant of decree as they had acquired the right of way through prescription which remained in their use for more than 20 years. In support of his submission, he relied upon AIR 1926 Patna 460, AIR 1925 Rangoon. 137, AIR 1931 Lahore 395, PLD 1981 SC 124, PLD 1963 Dacca 201, PLD 1959 Dacca 491 and 2007 SCMR 901.

7. In rebuttal, the learned counsel for the respondents submitted that the petitioners are Sari land owners and the respondents are Daftari land owners. The disputed thoroughfare is a Daftari land and on its both sides there is Daftari land and it has been recorded as private thoroughfare of the respondents. Also contended that Daftari land can be used for utilization of Daftari land while Seri land is utilized through thoroughfare in the Seri land. No Seri land owners have any right over the thoroughfare in Daftari land and no Daftari land owners can claim any right of thoroughfare in the Seri land. Further contended that adjacent to the house of petitioners there is a canal and also a 2 feet wide path on its bank towards the house of petitioners, and water channel is the boundary line between the Daftari land and Seri land. Also contended that even if the petitioners have used the disputed path without interruption of the respondents recorded owners, it shall be presumed as use with the permission of respondents Daftari land owners which cannot be termed as prescriptive easement right of way of the petitioners and he relied on PLD 1956 (West Pakistan) Lahore 781.

8. The essence of averments made in the plaint is that plaintiffs are seeking declaration regarding the acquisition of prescriptive right of way and correction in the revenue record to that effect. The establishment of prescriptive right of way is a question of fact and both the parties were conscious of this fact. Though there is no specific issue in this regard but issues Nos. 5, 6, 7 and 9 if looked together would show that the dispute between the parties is regarding the right of petitioners to use the thoroughfare in khasra No.1015 which is owned by respondents but subject to the prescriptive right of way of the petitioners? P. W.1 Muhammad Naeem Jan attorney of the petitioners has highlighted the continuous use of the disputed way by the petitioners for 29/30 years openly, peaceably without seeking any permission of respondents and without any objection and was subjected to evasive lengthy cross-examination but neither any question was put to him that the use of disputed way was permissible or it was used secretly or there was any interference in the use of disputed way "as of right" was ever challenged by the respondents recorded owners in the revenue record in the preceding thirty years when the residential house of the petitioners was constructed and they started living in it nor his deposition in chief could be shattered on any aspect. The respondents have tried to establish that there is alternate way for petitioners measuring 2 feet wide from the general road to the house of petitioners in response- to the stance of petitioners that the disputed way is the only way in between the general road and their residential house and is being used for motorcar, tractor and light vehicles. The width and length of disputed way has been brought on record through plaintiffs evidence that it is 16 feet wide 37 feet length and its total area is 1 kanal 6 marlas. The alternate suggested thoroughfare by the respondents cannot be taken into account being a narrow way "pakdandi" and human being need normally a widened way for the use of light vehicles for the access to their abode particularly in case of emergency. P.W.2 Murtaza Shah and P.W.3 Asif Iqbal have also deposed the same fact regarding the use of disputed way as of right by the petitioners openly, hostile, with no interference since ancient time and supporting the averments made in the plaint. P.W.4 Hazrat Sher Patwari has produced revenue record consisting of jamabandi for the year, 2008-2009 regarding khasra No.999 Seri land and khasra No.1015 the disputed way Exh.PW.I/1, Aks Shajara Kishtwar Exh.P.W.I/2 and Khasra Girdawari Exh.P.W.I/3. P.W.5 Akbar Badshah Girdawar who had visited the site on direction of the court has confirmed his report 4h. P. W.5/2. He also placed on record order of the Court dated 10-1-2010 Exh.P.W.5/1, along with notice to the parties, joint statement of parties Exh.PW.5/3, Aks Shajara Kishtwar Exh.PW'.5/4 and highlighted the factual position on the spot and admitted that khasra No.999 wherein the house of petitioners is located in the south east corner and disputed khasra No.1015 a thoroughfare and both khasras numbers are adjacent to each other and for access to khasra No. 999, khasra No.1015 the disputed way' is the only source. He has admitted that khasra No.1015 measuring 1 kanal 6 marlas is owned by the defendants/respondents and also replied to a question that khasra No.1015 has gone upto the forest as per sketch of the area prepared by the revenue staff. The disputed thoroughfare khasra No, 1015 is towards west of khasra No.999. He has admitted that if the measurement of way/ thoroughfare is less than one Karram is highlighted through red ink only and if exceed one Karram it is allotted separate khasra number and highlighted through red ink. In khasra No.999 there is a house described through khasra No.998 and no other house was found present at the time of settlement in the area and measurement of the disputed way. The respondents have also resisted the suit on the ground that, except the plaintiffs, no other inhabitants of the area i.e. Dheran Pattay or Ramjane has joined hands with the petitioners but the said objection is useless as the other inhabitants may have substituted access to their fields or dwelling houses while the petitioners are the only effectees of disputed blockade of the way mentioned as khasra No.1015 in the revenue record, have therefore, approached the Executive for the redressal of their grievances against illegal blockade and thereafter have filed the instant suit and also obtained a temporary injunction restraining the respondents from blockade of the disputed way leading to their house but the respondents-appears to be hardened and desperate persons have erected a brick-wall in front of the dwelling house of petitioners and have blocked the main gate of the plaintiffs.

9. Zabardast Khan defendant also attorney for most of the defendants appeared as D.W. 1 and has deposed regarding the custom of Swat whereunder "Seri land" is owned by Miangan and "Daftari land" is owned by the Pakhtun. He has denied that the disputed way is a general thoroughfare but is their private way and in their possession but has not uttered a single word to deny the peaceful use of it by petitioners for 30 years since the construction of their house in khasra No.999. Also stated that towards south of the house of petitioners there is adjacent water channel of two feet width which is boundary line between Seri and Daftari land. The house of petitioners is upon Seri land and Seri land has its own way not in Daftari land. He denied the right of way of the petitioners upon the private way of the respondents under law and shariah. He accepted the existence of disputed thoroughfare but for their own use and denied the ownership of petitioners. In his deposition, he has not uttered a single word that either the petitioners are not in the use of disputed thoroughfare or any permission was sought by the petitioners from the respondents for its use as the only approach to their dwelling house. He has also accepted in the cross-examination that the disputed thoroughfare is 100 years old and has also admitted that the people of Dheran Pattay which is in fact "Ramjanay" used this thoroughfare for access to their field and other necessities and do use vehicle like tractor and motorcar. His admission is reproduced below:-- However, he denied that the petitioners have used this way since ancient time. He has produced certain photographs in order to show that there is substituted access for the petitioners to their house but as noted earlier the disputed way is used for the small vehicles and tractor like motorcar while in the photographs there is no such alternate way and the witness himself has stated that the alleged alternate way is only two feet wide. He has admitted that Khairul Bashar bailiff of the Court had visited the spot in his presence, who has produced his report along with sketch. Strangely enough he has admitted that he did not point out alternate way towards the west and east to the said bailiff. He has also admitted that no objection was filed on the report of bailiff dated 12-2-2010 although he is aggrieved from it. His words are reproduced below:-- He has also admitted that they used the disputed thoroughfare for tractor and motorcar.

10. The defendants produced one Muhammad Rashad as DW-2 who happened to be the brother-in-law of petitioner No.1 and real brother of petitioner No.2 and has confirmed the deposition of DW-.1 regarding the custom of Swat and has stated that the disputed way is not a public thoroughfare but a private way of respondents. He is also recorded owners in khasra No.999 and has admitted that towards south of the house of the petitioners there is water channel of -two feet width as demarcation between Seri and Daftar land. Also admitted that Seri land has no right of way in Daftari land and vice- versa. In his deposition in khasra Nos.999 and 1020 there is two feet wide water channel and khasra No.1015 is owned and possessed by the respondents as their private way. He has also not uttered a single word that the disputed thoroughfare never remained in the use of petitioners as of right for more than twenty years. He has also not deposed that the use of petitioners of the disputed thoroughfare was permitted by the respondents on their request or that the use of petitioners of the disputed thoroughfare was ever objected to by the defendants. The son of Muhammad Rashad D.W.2 namely Asif Iqbal appeared as P.W.3 and he has totally contradicted the deposition of his father. This phenomena suggests that Muhammad Rashad D.W.2 appears to have developed illwill towards his sister on the question of getting share in the inheritance of their common predecessor as in the past under the then prevailing custom of Swat women-folk were held not entitled to get share in inheritance and by now it is a general phenomena in Swat that women-folk after cessation of old custom of Swat and enforcement of civil law including law of inheritance ,demand share from their brothers in the inheritance of their common predecessor. Respondent No.2 is also recorded owner in the relevant column along with D. W-2 regarding khasra No.999.

11. That the disputed question of fact is to be resolved in the trial Court or the Appellate. Court but if finding recorded by the court of competent jurisdiction if found suffering from misreading and non-reading of evidence, the same can be reversed in exercise of revisional powers of this Court.

12. Section 15 of the Easements Act, 1882 read as follows:-- "

15. Acquisition by prescription and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. The right to such access and use of light or air, support or other easement shall be absolute. Illustrations,--(a) A suit is brought in 1883 for obstructing a right-of-way. The defendant admits the obstruction, but denies the right-of-way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from Ist January, 1862 to Ist January, 1882. The plaintiff is entitled to judgment. (b) (c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right-of-way has not been enjoyed "as of right" for twenty years".

13. The afore-quoted provision of law coupled with illustration provide that if a plaintiff established through cogent evidence the use of land of servient owner without seeking permission of the recorded owner and openly as of right without any disturbance for twenty years his easement right to use the same land for passage irrespective of title over the land used as thoroughfare shall be entitled for decree for declaration of easement right. The respondents servient owner of the disputed path described through khasra No.1015 was never asked for permission of its use by the petitioners and its use as owners without interruption openly and peaceably by the petitioners for a continuous period of more than twenty years is sufficient to hold that petitioners have matured the acquisition of easement right of way upon the disputed way and the revenue staff while preparing first settlement in the area were required to make title of respondents upon disputed way subject to the right of easement of using said path by the petitioners.

14. Section 26 of the Limitation Act 1908 reads as follow:-- "

26. Acquisition of right to easements.

(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, ' without interruption, and for twenty years, And where any way or watercourse, or the use of any water, or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption, and for twenty years, The right to such access and use of light or air, way watercourse, use of water, or other easement shall be absolute and indefeasible. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. (2) Where the property over which a right is claimed under sub-section (1) belongs to the government, that subsection shall be read as if for the words "twenty years" the words "sixty years" were substituted". The word "easement" is defined in Section 2(5) of the Limitation Act, 1908 reads as follow:-- "(5) "Easement" includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing, or attached to or subsisting upon, the land of another".

16. In a case reported as PLD 1959 Dacca 491, the word "as of right" appearing in section 26 of the Limitation Act, 1908 has been defined as follows:-- "The word "as of right" in section 26 of the Limitation Act, 1908 do not mean "rightfully" or an enjoyment without trespass and under a strict legal right but it refers to enjoyment by a person under a claim or an assertion of right. The acquisition of right may commence with an act which may be a pure act of trespass but the enjoyment though it may continue to be a trespass, may, nevertheless,- be, "as of right" so as to ripen into a prescriptive title. It was further observed in the cited judgment that the basis of the right of easement by prescription is user of another man's land without any right till the user is ripened into a right by prescription. It is in the nature of an adverse possession though it does not partake of the character of adverse possession. In one case, the easement originates from a legal right, namely, grant, and in another case the right of easement accrues from user of right, which means an adverse exercise of right as against the servient owner, therefore, it was held that if the plaintiff leads evidence to show that he has used the stair-case on the basis of grant, he cannot rely on that evidence to establish his right of easement by prescription on the basis of the user of the stair-case because of the different animus. User on the basis of grant is not user to be ascribed in order to prove acquisition of the right of easement by prescription. If the enjoyment claimed is consistent with two reasonable inferences, the enjoyment as of right is not established.

18. In the instant case, the petitioners have used the land of respondents/defendants described through khasra No. 1015 owned by respondents/ defendants like adverse possession against servient owner for more than twenty years, thus their right of easement was matured and they were deserving the decree as prayed for. 17(sic),In AIR 1926 Patna 460, easement right of way was discussed in following words:' "In order to establish a right of way it must be proved that the claimant has enjoyed it for the full period of twenty years and that he has done so as of right; but if it should be the case of the opposite party that the enjoyment was by violence or by stealth or by leave asked from time to time, it is for him to allege and establish that case. But where no such case is made by him the court ought not to allow him to argue such a case."

18. In case reported as PLD 1963 Dacca 201, it was held that the right of user to be proved by the plaintiff, mere user for, innumerable years does not confer prescriptive right unless the conditions for acquisition of such right by prescription are fulfilled.

19. In the instant case, the petitioners/plaintiffs have established through unrebutted and admitted evidence all the essential ingredients for acquisition of right of easement by prescription which are discussed in 2007 SCMR 901 reads as follow: (i) The right claimed must not be uncertain. (ii) The right claimed must have been enjoyed. (iii) It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed. (iv) It must have been enjoyed peaceably, openly, as of right, as an easement, without interruption and for twenty, years or in the case of government land sixty years.

20. Section 26 of the Limitation Act, 1908 also came under consideration in a case reported as PLD 1981 SC (AJ&K) 124 wherein the right of way of the user was stopped by the original/servient owner and it was held that such stoppage by .the original owner does not affect right already acquired by prescription unless it is established that it was intentionally abandoned.

21. In AIR 1931 Lahore 395 it was held that the question whether a particular fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact but the proper legal effect of a proved fact is essentially a question of law. The acquisition of right of way by prescription is a question of fact but when the petitioners established the same through unrebutted or admitted evidence it became a question of law and despite concurrent findings of fact which is found not based on proper appreciation of evidence or based on misreading and non-reading of evidence cannot be declared immune from interference in revisional jurisdiction. Regarding the use of some other servient owner land and for acquisition of prescriptive right it was held that the use of such right must be openly and peaceably, means that when the plaintiff who claims to be the dominant owner, has neither been obliged to resort to physical force himself at any time to exercise his right within twenty years expiring within two years of the suit nor had he been prevented by the use of physical force by the defendant in his enjoyment of such right. The person who claims a right over the property of another must not have deprived him of that right by the use of force or secretly. The word 'Peaceably" qualifies the word enjoyed. A mere denial by the defendant of the plaintiff's alleged right in 1916 and his unsuccessful attempt to have this right negative in courts of law does not affect the plaintiff's acquisition for easement.

22. The defence taken by the respondents/defendant in their written statement and in the witness box that Seri land owners have no right of way upon a Daftari land and vice versa ceased its effect on the extension of Easement Act and Limitation Act in the area whereunder the notification through which these laws were extended it was specifically mentioned that any custom or usage having the force of law n corresponding to the law extended to this area shall cease its effect. Now the Seri land owner can claim a right of easement of use of passage upon Daftari land provided Seri land 'owner has utilized, Daftari land for passage without obtaining permission from Daftari land owner, openly without any interference and as of right for twenty years could competently enforce his acquired right through prescription upon Daftari land and vice-versa.

23. In wake of the aforesaid discussion, I accept this revision petition, set aside the impugned judgments and decrees of both the Courts below in Civil Suit No.21/1 of 2010 dated 30-9-2010 and Civil Appeal No. 7/13 of 2011 dated 29-1-2011 and decree the suit of petitioners/plaintiffs as prayed for. All obstruction made by the respondents in the use of disputed way by petitioners which is recorded 16 feet wide and '37 feet long bearing khasra No.1015 be removed forthwith and the ownership of respondents would be subject to the acquired easement right of way by prescription of the petitioners and the same be given effect in the revenue record. No order as to costs. S.A.K./339/P Revision accepted'.