1984 PLP 791 (SCMR)

MIAN BURHNUDDIN KHAN, J.‑By this petition leave is sought to appeal against the judgment and order of Lahore High Court, Rawalpindi Bench, dated 1‑6‑1982 in R. S. A. No. 163/79.

2. Facts relevant to this petition are that the petitioner filed a suit for permanent injunction seeking to restrain the respondents from opening a door in the Gali shown in the site plan Exh. P/1 and also to restrain the respondent from opening their outlet on that side and a mandatory injunc tion was sought that they be ordered to close the outlets on point C and D in the site plan. The learned trial Judge decreed the suit per judgment dated 18‑10‑1978 against which an appeal was filed in the Court of the Dis trict Judge which was heard by the learned Additional District Judge who partially accepted the appeal of the respondents and held that they have not established their title to the pushta' and set aside the judgment and decree of the trial Judge to that extent only and as regards other relief, the appeal was dismissed. Thereafter R. S. A. No. 163 of 1979 was filed which was allowed by the learned High Court vide the impugned judgment with order to parties to bear their own costs.

3. Learned counsel for the petitioner contended that the learned High Court Judge has upset the concurrent finding of the subordinate Courts in the second appeal which is repugnant to the principles of law laid down; that the two courts below had held that the petitioner had the exclusive right in the use of the Gali between seen sheen and suad zuad and both the Courts had also given the finding that the respondents could neither open a door nor an outlet of water in the said Gali that the learned Judge has also ignored the most crucial question of law involved in the suil i. e. of exclusive user and consequent privacy for the petitioner and members of his family, to use the said Gali ; that the said Gali had been in exclusive use of the petitioner since time immemorial and his right arising out of such long usage has not been considered in the impugned judgment. Lastly, the learned counsel contended that the petitioner's claim is that the Gali in question is a private way the use of which is confined to himself and the inmates of his house, and, therefore, a reference to the Easement Act would not be conducive to the law involved in the instant case. It was also urged before us that under section 110 of the Evidence Act when the question is where any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Long and continuous lawful possession of the petitioner leads to inevitable inference that he has title though he may not be able to trace it and one of the most important powers of an owner is possession which includes the right to exclude others ; which has not been taken into consideration.

4. We have examined the contentions raised by the learned counsel and would refer to the plan of the disputed Gali which shows that the marked portion in the extensions of the houses of the petitioner and respondents, is not shown in possession of anyone of the parties to the exclusion of others. This Gali ran through and through on one side of the houses of the par ties which is a blind alley and it has not been established that the respon dents were excluded to use this Gali in any manner. The evidence produced by the respondents would also show that this is a street at the junction of the houses of the parties having walls on both sides and has been used by the parties since long. Therefore, none of them has the right to stop the other to use it for entrance to their houses. The evidence produced in the Court below consist of the statements of Manzoor Elahi D. W. 1 and Mir Alam D. W. 2 and Abdur Rahim, D. W. 3 All these statements are based on no documentary evidence but are mere assertions of the witnesses that this Gali is exclusively owned and possessed by the petitioner. In his cross- examination the petitioner has admitted that he bases his claim merely on the fact the Gali has been used by him and his ancestors for the last 100 years. Beside this he has got no documentary proof. On the other hand the respondents have produced in evidence Abdur Rehman D. W. 1, Ghulam Sarwar D. W. 2, Abdur Rahim D. W. 3 and Muhammad Ferozuddi D. W. 4 all of whom have stated that there are ventilators opening toward the Gali of the houses of the defendants and also water spouts and `pushtas' and the (rah has been used by the public since ages and no one ever asserted claim over the Gah. This answer settles the question raised by the learned counsel and the petition is, consequently, dismissed. M .Z. M. Petition dismissed.