2007 PLP 901 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment dated 7-4-2006 whereby the revision petition preferred on behalf of Moulvi Sher Jan (respondent/plaintiff) has been accepted.

2. Precisely stated the facts of the case "are that a suit for declaration and injunction was filed by the petitioners in the Court of Qazi Bori Sanjavi wherein it was stated that the plaintiffs/petitioners are permanent residents of Killi Chalez Mir Haji; they are from the time of British India using a passage/way for the last 50 years which is located in Khasra No.342 passes in between Khasra Nos.341 and

343. It was further claimed that the other inhabitants of the Killi are also using the said passage without any interruption from any corner. It was further averred that in the year 1968 Madrasa Jameha Masdarul Uloom, Killi Chalez Mir Haji duly registered, was established and numerous students are taking their education from said institution and also utilizing this passage. It was also case of the petitioners that there is a Jameha Masjid and a reasonable number of Namazies visit said mosque and offer prayers. The resident of Pesh Imam is also situated in the said mosque and offer prayers. The resident of Pesh Imam is also situated in the said Killi. It was also case of the petitioners that Maulvi Sher Jan had gifted a piece of land for the establishment of Madrasa and mosque which was purchased from the father of defendant Abdul Khaliq in consideration of Rs.15,

000. It was also claimed that the plaintiffs are entitled to use the said passage legally. It was further claimed that the said passage is being used by the inhabitants of the Killi for the last 50 years and there is no alternate way to approach to the said Killi. Prayer for declaration was sought and it was also prayed that they should be restrained from obstructing the way in any manner and also to be restrained from putting any obstruction in order to change the width of the passage". The respondent repudiated the claim of petitioner by filing written statement raising various legal and factual objections. On the pleadings of the parties various issues of facts and law were drawn up by the learned trial Court. After recording the evidence pro and contra the suit was decreed by the Court of learned Qazi Sanjavi dated on 14-1-2000 which was assailed before learned Majlis-e-Shoora, Loralai by means of appeal which was accepted vide judgment and decree dated 17-6-2002 against which revision petition preferred on behalf of Moulvi Sher Jan (respondent/plaintiff) has been accepted vide judgment impugned, hence this petition.

3. Heard Ch. Mumtaz Yousaf, learned Advocate Supreme Court on behalf of petitioner and Mr. Salahuddin Mengal, learned Advocate-General Balochistan, for the State, scrutinized the entire evidence with their eminent assistance and perused the judgment of Qazi Sanjavi, the judgment of learned Majlis-e-Shoora, Loralai as well as the judgment impugned. After having gone through the entire record we are of the view that the existence of passage for about last 50 years has been established and no restraint can be imposed now in view of the provisions as contained in section 15 of the Easements Act, 1983. Moulvi Sher Jan (respondent/plaintiff) has adduced worthy of credence evidence to substantiate his claim. In this regard the statements of Haji Abdullah (P.W.1), Qalandar Khan (P.W.3) and Abdul Lateef (P.W.4) can be referred. Haji Abdullah (P.W.1) has stated in an unequivocal manner that the passage was in existence which was never closed by anybody in the past. His version was fully corroborated by Abdul Majeed (P.W.2), according to whom the passage was in existence since his childhood and he was never stopped to utilize passage. Qalandar Khan (P.W.3) has also supported the above mentioned version and stated that the passage in question was in existence for the last 70/75 years and no hindrance whatsoever was created in its utilization. Abdul Lateef (P.W.4) has also supported the claim of Moulvi Sher Jan (respondent/plaintiff) by stating that the passage in question was in existence for last 50 years which is being utilized without any hindrance or disturbance. Abdul Lateef (P.W.4) has pointed out in a categoric manner that even the grandfather of the' petitioner had never attempted to place any restriction on the utilization of the passage and according to him it was a thoroughfare which could not have been closed. After having gone through the entire evidence we have also examined their necessary conditions for the acquisition of a right of easement by prescription which are as under:-- "Conditions necessary for the acquisition of a right of easement by prescription.

The following conditions must be fulfilled for the acquisition of a right of easement by prescription: (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 (a) peaceably, (b) openly, (c) as of right, (d) as an easement, (e) without interruption, (f) for twenty years or sixty years, if the right is claimed against Government. Out of the last six sub-conditions, (b) and (c) are not necessary in the case of easement of light and air or support. With this exception, all the conditions and sub-conditions must be fulfilled before the right of easement is acquired. (The Easement Act, 1983 by Mian Zahur-ud-Din pages 69-70).

4. The evidence led by Moulvi Sher Jan (respondent/plaintiff) when examined on the touchstone of the criterion as mentioned hereinabove it revealed that the right claimed by him was not uncertain. It was enjoyed continuously, peacefully, openly and as of right of easement without interruption and moreso the passage was in existence for the last fifty years. It hardly needs any elaboration that an interrupted and continuous user for a period of more than twenty years prescribed by law forms the foundation of a prescriptive right or right to be acquired by prescription which has accrued in favour of Moulvi Sher Jan (respondent/plaintiff). We are not persuaded to agree with the prime contention of Ch. Ejaz Yousaf, learned Advocate Supreme Court that the legal and factual aspects of the controversy have not been appreciated in its true perspective for the simple reason that the evidence which has come on record has been appreciated with diligent application of mind by the learned trial Court, determination whereof has been upheld by the learned High Court. No illegality or infirmity could be pointed out inferring that it was a case of non-reading or misreading of evidence. It is worth mentioning that right of easement being question of fact had been decided by the learned trial Court. No interference could be called for by exercising our jurisdiction under Article 185(3) of the Islamic Republic of Pakistan. In this regard we are fortified by the dictum laid down in the following authorities:-- Pakistan National Oils Limited v. Sattar Muhammad 1980 SCMR 686, Ramdhin Singh v. Jadunandan Singh AIR 1915 Cal. 486, Valina Rama v. Emperor AIR 1928 Lah. 496, Abdullah v. Ahmad Khan 1988 CLC 1301, Sheo Nath v. Mughla AIR 1938` Lah. 800 and Pakistan Warranted Warehouse Ltd. v. Sindh Industrial Trading Estates Ltd. 1991 SCMR

119. In sequel to above mentioned discussion, the petition being meritless is dismissed and leave refused. S.A.K./A-11/SC Leave refused.