1999 PLP 2074 (MLD)

Saleh Mehmood Awan for Respondent. Date of hearing: 28th September 1998 Suit No. 180/1 of 1976 brought by Tahir Mahmud minor through his father Malik Nazar and Suit No. 184/1 of 1976--brought by Manzoor Ali and two others minors through their father Muhib Ali against Frontier Cooperative Bank, Haripur in respect of the Property -Nos.91/C and 92/C (two shops) before the Court of Senior Civil Judge, Hazara for declaration to the effect that the petitioner bank be restrained from creating hurdles for the respondents in obstructing them to construct upper portion of these shops. The suits were resisted by the petitioner-bank on the grounds that the plaintiffs had nothing to do with the suit property and that the bank also claimed easement of necessity under section 13(b) of the Easements Act, 1882 besides raising other various legal and factual grounds. The learned Senior Civil Judge framed as many as 15 issues on the pleadings of the parties.

2. After recording the evidence of the parties the suit was initially decreed in favour of the plaintiffs on 31-5-1980 by the then Senior Civil Judge, Haripur. The aggrieved party went on appeal and the case was remanded back on 14-4-1983 to the trial Court as the judgment impugned therein was not in accordance with law and the learned Appellate Court was of the view that though not being clear the judgment was ambiguous, therefore, a direction was made to the trial Court for re-writing the judgment in accordance with the pleadings and evidence of the parties. However, the learned Appellate Court directed the trial Court that the plaintiff be given reasonable time for obtaining sanction of the site plan duly approved by the Municipal Committee. ,

3. After the remand the needful was done and finally the suit of the plaintiffs was dismissed on 15-11-1995 by the learned Senior Civil Judge. Feeling aggrieved the plaintiffs-respondents again went on appeal to the District Court and vide order, dated 3-10-1996 both the appeals were accepted and the order of the trial Court was set aside.

4. Feeling aggrieved of the aforesaid decisions Frontier Cooperative Bank has filed two separate Revision Petitions Nos.36 and 37 of 1997. As common questions of law and facts are involved in both the petitions, therefore, I propose to dispose them of by this single judgment.

5. I have heard the learned counsel for the parties and have gone through the record of the case carefully.

6. In fact originally the property belonged to Uttan Chand before the partition in the year 1947 as he was the exclusive owner and occupier of the said building. Thereafter, Property No.90/C which consisted of three rooms, two verandahs and a bathroom was in the tenancy of the petitioner-bank but it was later on transferred through per-amount transfer deed to Frontier Cooperative Bank on 7-2-1963 vide Exh.P.W.2/3. Survey Report in respect of the aforesaid property is Exh.P.W.2/D-3 which also mentions that it was a house consisting of three rooms, two verandahs and one latrine. No mention of any courtyard or open place is indicated therein. This house No.90/C is constructed over the shop of Muhammad Amin an allottee of Shop No.93/C, who is not a party in the present proceedings. According to site plan Exh.P.W.I/1 the shops of Muhammad Tahir 91/C and Manzoor Ali 92/C are towards the south of the shop of Muhammad Amin which has stairs leading to the suit property belonging to the petitioner-bank i.e. 90-C on the upper portion over the Shop of Muhammad Amin. It is important to note that there is no upper storey available on the suit shops i.e. 91/C and 92/C. The claim of the bank is that by virtue of easement right they can use the path and the courtyard i.e. roof of Shops Nos.91/C and 92/C leading to their property without any disturbance whereas the claim of the respondents is that the bank cannot use the upper portion of that property which was an open courtyard as the same was not transferred to the appellant vide the P.T.D. Exh.P.W.2/3 being silent with regard to the inclusion of the courtyard aforesaid. Nothing, therefore, is available on the record to show that the shops transferred to the respondents did not include its roof etc. The trial Court had thrice appointed local commissioners to evaluate the situation and find out the correct solution of the dispute. The Commissioners have opined unanimously that there was no dispute between the parties except the stairs leading to the property of the petitioner and they recommended alternative independent path for its access. In my view the learned Additional District Judge has made correct observations in the impugned order that a separate independent path shall be constructed and to be used as stairs. According to the observation of the Appellate Court the stairs will be constructed at the costs of the respondents in a manner that the petitioner-bank shall, have an independent approach to their property without any hindrance. The area of the existing stairs shall be distributed amongst the respondents namely Tahir Mahmood and Manzoor Ali towards the adjustment of their space which they will provide for the new stairs. In this arrangement none of the litigating parties will be at a loss.

7. After carefully examining the record I am of the considered view that the petitioners cannot claim any easement right as they were never in its exclusive possession of the courtyard over the roof of the suit shops belonging to the respondents as it was used by the petitioner as well as the respondents jointly. According to the record the petitioners were only is possession of the right of passage by prescription for 13 years. During this period the use of passage was only permissive and the same cannot be treated as hostile. Reliance is placed on 1.988, MLD 53; 1998 SCMR 495 and 1992 CLC 754.

8. As a sequel of the aforesaid narrations I do not find any merit in these two revision petitions which are dismissed with costs. Q.M.H./210/P???????????????????????????????????????????????????????????? Revision dismissed.