2002CLC318 (PLP)

8. The legal representatives of defendants 3 and 4 who are respondents 5 to 15 herein, appeared before this Court and contended that an area of 4 Marlas 74 and Sq. ft. of Khasra No. 2616 was not sold 'which was meant to provide a passage through Agha Street to Khadim Street.

9. On the other hand, the learned counsel for respondents 1 to 4 contended that the petitioners could not claim the property of respondents 1 to 4 as public street on the basis of the alleged undertaking given by the previous owners. According to him, since the petitioners had failed to establish their right to use the disputed property, there was no obligation to be enforced through a suit for permanent injunction. He further contends that according to testimony of the P. Ws. no right to use the passage through Khasra No. 2616 was ever given to the petitioners. He maintained that the petitioners purchased the land in 1965 while the suit was filed in 1974 and that the right of easement could mature only after 20 years. Reliance was placed on Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh.

82. His next contention was that Issue No.2 was "Whether the disputed plot is a public street"? and no evidence as produced to show that it was ever declared as a public street by any competent authority. He next contended that the entire area of Khasra No. 2616 was sold by the owners to defendants 1 and 2 without mentioning that there was any passage in the aforesaid Khasra number. He submitted that the buildings plan of defendants 1 and 2 were duly sanctioned. However, these were cancelled as respondents 1 to 4 did not raise construction because of the litigation initiated by the petitioners. He next contended that the sketch map Exh.P.6/4 was not duly proved as it was not even verified by any of the petitioners. According to him, it was a misleading document. He further contended that this revision petition has not been filed by a duly authorized person.

10. Since it was a judgment of variance, I examined the evidence produced by the parties appended to the record of this petition. Riaz‑ud -Din, resident of Agha Street appeared as P.W.1. According to him, the disputed area was situated between Khadim Street and Agha Streets and these streets alongwith Bokhari Street link Haq Bahu Road and Shalimar Road and if construction was raised on the disputed street, Agha Street will be blocked. He produced a photo copy of sale‑deed in his favour (the original was produced for the inspection of the Court). He further stated that if Agha Street was blocked, it will not be accessible by a transport and they will not be able to go to the other side and even for going to the mosque they will have to take a longer route. Ghulam Nabi (P.W.2), another resident of Agha Street, also produced a photo copy of the sale deed in his favour (the original was produced for the inspection of the Court). He stated that according to the registered sale‑deed in his favour there was a 10 feet wide street on the west and that the disputed place was situated between Agha Street and Khadim Street. According to him, if the construction was raised on the disputed land, the value of their house will be diminished and the passage to the mosque will be blocked. He further stated that the disputed place was being used as a passage for the last about 17 years. He conceded that the disputed land was owned by the defendants 1 and 2 and stated that Agha Street and Khadim Street connect Haq Bahu Road and Shalimar Road and the disputed area lies between Khadim Street and Agha Street. He also stated that since 1967 he was seeing the disputed place as passage/street. According to P.W.4 Jamil Ahmad Khan, he has been seeing passage on the disputed land since 1960. Statement of P.W.5 was recorded but the learned trial Court observed that the witness was present in the Court while testimony of P.W.4 was being recorded, therefore, his testimony was excluded. Agha Salamat Khan attorney of petitioner No.1 appeared as P.W.6 and supported the contents of the plaint.

11. On behalf of defendants 1 and 2, Muhammad Aslam was examined as D. W .1. According to him, disputed land was owned by Muhammad Sarwar, respondent No.1. He stated that from Agha Street, Ghazi Road had a link through New Shalimar Road. He further stated that in this locality people had themselves left the streets. In cross-examination he stated that the disputed land was situated between Shalimar Road and Haq Bahu Road and Khadim Street and if Agha Street were closed, the residents of the area will use Abu Bakar Street which was a longer route. He admitted that Agha Street starts from Shalimar Road while Khadim Street originates from Haq Bahu Road. Zafar Abbas, D. W.2, stated that the disputed plot was owned by respondent No. l , Pacca streets had been constructed in the area but the disputed place was Katcha and has never been used as a passage. Zafar Abbas was examined as D.W.2 but he did not appear for cross‑examination. Accordingly it was noted that his statement will not be considered as evidence Muhammad Yousaf, D.W.3, stated that Agha Street was a Pacca street up to the disputed plot while Bokhari Street and Abu Bakar Street were also Pacca streets. These had been left by the owners. The disputed land was vacant and whoever wanted could pass through it. It was not, however, a permanent passage. According to him, the residents of Khadim Street have access to New Shalimar Road through Abu Bakar Street. Hafeez Ullah, D.W.4, stated that the disputed land was owned by respondent No. l and that it had never been used as a passage. An official of the Municipal Corporation was examined as D.W.5. He stated that building plan of respondent No. 1 was sanctioned vide order Exh.D.1 while the building plans were Exhs.D.2 and D.3. He further stated that building plan of Muhammad Ali, defendant No.2, was sanctioned vide letter Exh.D.4 and while duly sanctioned building plan was Exh.D.5. Muhammad Sarwar, appeared as D.W.6. He claimed that he had purchased the plot from Mst. Sardar Begum. He produced sale‑deeds Exh.D.7 and Exh.D.8. According to him, when he purchased the plot, the land was under cultivation. There was no street on the spot. His plot and the plot of his brother, defendant No.2, were adjacent. All necessities of life were available at New Shalimar Road and the residents of Agha Street meet their requirements from New Shalimar Road. He further stated that there were two other streets adjoining Agha Street known as Sadiq Street and Yousaf Street. Yousaf Street and Agha Street were closed streets and New Shalimar Road was linked with Abu Bakar Street through the Bokhari Street. He claimed that on his plot there has never been a street. He, however, admitted in crass‑examination that the Corporation had cancelled their building plans. He further admitted that between Shalimar Road and Haq Bahu Road the entire land was common between Sardar Begum and his brother. He also admitted that Sardar Begum and Sadiq and others had sold the land after leaving space for the streets. He volunteered‑ that three streets were closed streets while two were open. He claimed that Agha Street was a closed street and on the edge of the street was a plot which was vacant. He admitted that Agha Street originates from Shalimar Road while Khadim Street starts from Haq Bahu Road but Khadim Street according to him ends at Bokhari Street. He denied the suggestion that he had encroached an area of 5 feet of the streets.

12. I have considered the submissions made by the learned counsel for the parties and have examined the reasoning of the learned two Courts in the light of the evidence produced in the case. The learned First Appellate Court non‑suited the petitioners on the grounds that there did not exist any public street on the disputed land because it was not duly sanctioned or so declared by the Municipal Corporation, defendants 1 and 2 had purchased the entire area of Khasra No.2616 and that no easement of necessity was established in favour of the petitioners. An adverse inference was also drawn from non‑production of the vendors in support of the case of the petitioners.

13. None of the reasons adduced by the learned First Appellate Court to reverse the judgment and decree of the learned trial Court is sustainable and my reasons to reach this conclusion are as follows. 14. "Street" was defined in section 3(13)(x) of the Punjab Municipal Act (Punjab Act No.III of 1911) while public street was defined in section 3(13)(b). These definitions are not, however, being noted because when the petitioners purchased the land or when the suit was filed, the Municipal Administration Ordinance (No.X of 1960) was in force. The terms "street" and "public street" have not been defined in the said Ordinance. However, according to section 3(2) of the said Ordinance the words and expressions used but not defined in this Ordinance shall, unless the context otherwise requires will have the meanings assigned to them in the Basic Democracies Order (P.O. 18 of 1959). Chapter VII of the Ordinance deals with the streets. According to section 80 thereof a Municipal Committee was responsible to maintain public streets and other means of public communication while according to section 81(1) of the Ordinance no new street shall be laid out except with the previous sanction of the Municipal Committee and in conformity with the terms and conditions of such sanction. Subsection (4) of section 81 provided that Government may prescribe the manner in which a street other than a public street may be converted into a public street. The West Pakistan Municipal Committee (Street) Rules, 1962 were promulgated on 12th January, 1962 prescribing the procedure for layout or relay out of street and public streets and the matter related thereto. 15. "Street" as defined in section 3(42) of P.O. 18 of 1959 is as follows:‑‑ `Street' includes a street which is not a thoroughfare' Public street was defined in section 3(33) as follows:‑‑ 'Public street' means a street maintained by the Government or by the Local Council or other Local Authority."

16. The Municipal Administration Ordinance and the Basic Democracies Order were repealed and replaced, by the Punjab Local Government Act, 1975. Definition of "street" and "public street" as given in P.O. No. 18 of 1959 were, however, adopted.

17. It is not the case of the petitioners that the disputed place was ever declared as a public street or was being maintained by a Local Council. However, apart from the definition of the "street" as given in the Basic Democracies Order, a "Public Street" could come into existence by dedication of the owner coupled with its use by the public as a passage or right of way. In Jatindra Noth Borat and another v. Corporation of Calcutta AIR 1931 Cal. 433 it was held as follows:‑‑ "Before private land can become a public street or passage it must be made so. by the statute or dedication by the owner to the use of the public and there may be circumstances by which such dedication can be presumed." Reference may also be made to Rana Ganpat Singh v. Kangra Valley Slate Co 62 PR 1898 which is instructive on the subject and a relevant passage is reproduced below:‑‑ "By the law of England Public rights over a highway rest upon a dedication express or presumed from user by the public. The whole is pithily summarized in the following passage in Dart on Vendors and Purchasers, 6th Edition, Volume 1, page 411. ' A road may be a common highway even, though it is occasionally used by the public, or is circuitous or does not terminate in a town or in some other public road, and a very, short continuous user of it by the public openly; and as if right is sufficient to raise a presumption of its dedication to their use, but the presumption may be rebutted by evidence of the owner's intention that the public should only have a permissive user as, e.g. by his arbitrarily closing the way for one day in each year or by showing that the state of the title was much that a binding dedication was impossible, but mere non‑user for any number of years will not destroy or prevent the public from resuming the right to a public way, though it may be evidenced that no such right ever existed. The soil of a road, whether public or private, usque and medium filum via, is presumed to belong to the adjoining owners...' In Smith's Leading Cases, Volume II, 9th Edition, page 165, the mode of creation of public highway is thus stated: 'Except where this is done by the express enactment of the Legislature, it derives its existence from a dedication to the public by the owner of the land over which the highway extends of a right of passage over it, and this dedication, though it be not made in express terms as it indeed seldom is, may and will be presumed from an uninterrupted use by the public of the right of way claimed'. In Rugby, Charity v. Merry Weather (II Ea., 37 bn), a period of six years' user was held sufficient proof of dedication. In Queen v. Petiric, & c., 24 LJRPQB 167 and Powers v. Bathurst, 49 LJ Rep. Ch.294, it was laid down that an open user as of right by the public raises a presumptive inference of dedication requiring to be rebutted and that the onus of displacing the presumption lies on the person seeking to deny the inference from the public user. In Woodyer v. Hadden (5 Taunt 12) Chamber, J., said: 'No particular time is necessary for evidence of a dedication. If the act of dedication is unequivocal it may take place immediately. For instance, if a man builds a double row of houses opening into an ancient street at each and making a street and sells or lets the houses that is instantly highway'. The above principles have been held to apply to India, being founded on reason and commonsense and conducive to public convenience. In J. Anderson v. Juggodumba Debi 6 CLR 282, the presumption in regard to dedication from user were held to govern a case from the mofussil in Bengal. In Nihal Chand v. Azmat Ali Khan ILR 7 All. 362 the rule about ownership of land of disused highways was followed. So also in regard to obstructions of public roads the remedial 'provision of English Law have been held to regulate this right of suit.

18. Therefore, even if a street or a passage was not a declared public street within the meaning of the Municipal Laws a public street could come into existence by express dedication of the owner of the land for the purpose aforesaid and use by the public.

19. It is in the evidence that while selling plots to various persons for construction of houses the owners had left spaces for the streets. The legal representatives of the landowners affirmed this position before this Court and this was even admitted by respondent No. l who appeared as D. W.6 and D. Ws. 1 and 3 coupled with the fact that an area measuring 4 Marlas and 74 square feet continues to be owned by the previous owners. The sale‑deeds produced by the petitioners also showed existence of a street. The evidence produced in the case also established that the people of the area have been freely using the disputed place as passage. Reference may also be made to Kumman and another v. Sujan Singh AIR 1938 Lah. 619 according to which an open site i.e. a common courtyard which was being used by the members of the public as passage was held to be a street.

20. In recent years a. number of private Housing Colonies were developed and the one between New Shalimar Road and Haq Bahu Road was one of the such Housing Colonies. Not only the evidence produced by the plaintiffs supports that Agha Street runs through Khadim Street and connects Haq Bahu Road even D.W.3 conceded that there was a passage in Khasra No. 2616 and whoever desired could pass through it.

21. It is also in evidence that an area measuring 4 Marlas and 74 square feet is still left undisposed of from Khasra No. 2616. The successor‑in‑interest of the landowners appeared before this Court through a learned counsel and affirmed that the undisputed area from Khasra No. 2616 was meant for a street or passage. This clearly amounted to dedication of this land for use as passage by the inhabitants of the locality: It is also in evidence that except the disputed passage‑all other streets in the locality are Pucca streets and are being maintained by the Municipal Corporation. The disputed portion of the street was Katcha because of the litigation pending between the parties. In view of the evidence produced by the parties and enunciation of law as noted above, the Additional District Judge ought not to have narrowly construed the scope of a public street as the one sanctioned and maintained by the Municipal Corporation. It includes a public passage over the land dedicated by the owner for the use by public and the status of the disputed place was not to be determined with reference to Municipal Laws.

22. The finding of the learned First Appellate Court that defendants 1 and 2 had purchased the entire area of Khasra No. 2616, is against the evidence produced in the case. Vide Exh.D.1 Mst. Sardar Begum sold land measuring 14 Marlas on 23‑10‑1973 to respondent No.1, from Khasra No. 2616, while through Exh.D.8 Muhammad Sadiq and Sardar Begum sold an area of 10 Marlas from Khasra No. 2616 in favour of Muhammad Ali defendant No.2 in the suit on 23‑10‑1973. Muhammad Sadiq and Mst. Sardar Begum sold an area measuring 24 Marlas from Khasra No. 2616, on the basis of Jamabandi for the year 1971‑

72. A perusal of this Jamabandi shows that there were a large number of co -sharers and Khasra No. 2616 had a total area of 28 Marlas and 74 square feet with 3840 shares and the shares of Sardar Begum and Muhammad Sadiq did not exceed 2 Marlas and 4 Sarsaies each. Therefore, even the validity of sale of 24 Marlas from Khasra No. 2616 by Muhammad Sadiq and Mst. Sardar Begum is open to very serious doubt. Vide sale‑deed, dated 17‑8‑1974 Mst. Sardar Begum sold an area measuring 6 Marlas from Khasra Nos.5532/4587/2610/2611/10/9 and Khasra No.2616/4 min as recorded in Jamabandi for the year 1971‑

72. Khasra No.2616/4 as such is not recorded in Jamabandi for the year 1971‑

72. According to Jambanadi for the year 1983‑84, Exh.D.9, Mst. Sardar Begum was recorded as an owner of 10 Marlas in Khasra Nos.5532/12078/4587/ 2610/2611 out of which 6 Marlas were sold as recorded in Column 10 of this Jamabandi. Thus, in fact vide sale‑deed, dated 17‑8‑1974, the sale was not from Khasra No. 2616. It could not otherwise be from Khasra No. 2616 because Mst. Sardar Begum has already sold land from Khasra No. 2616 much beyond her entitlement. In any case after sale of 24 Marlas from Khasra No. 2616 in favour of defendants 1 and 2, an area of 4 Marlas and 74 square feet was left in this Khasra No. and it was not possible to sell 6 Marlas from Khasra No. 2616. The perusal of this sale deed shows that this area of 6 Marlas was sold from Khata No.5 of Jamabandi for the year 1971‑72 while according to the Jamabandi. for the year 1971‑72 Khasra Nos. 5532/4587/1610/2611 did not fall in Khata No.5. Through another sale‑deed, dated 10‑3‑1978 another plot of 5 Marlas were sold by Malik Muhammad Sadiq from Khasra Nos. 7018/2615 in favour of Ghulam Sarwar, respondent No. l . These sale deeds were produced as Exh.D.10 and Exh.D.11. Therefore, the finding that defendants Nos.l and 2 had purchased the entire area of Khasra No. 2616 is against the record and is, therefore, not sustainable.

23. Apart from the fact that dedication by the owners of the land for the purpose of providing passage to the residents of the area and use of the disputed place as passage stands established, it has also been found sthat defendants 1 and 2 had not purchased the entire area of Khasra No. 2616. They have, thus, no right to convert the disputed land to their exclusive use by closing the aforesaid streets.

24. The learned First Appellate Court drew an adverse inference of non‑production of the owners of the land by the petitioners in the witness‑box. No such adverse inference could be drawn in the facts and circumstances of the case because the petitioners were able to establish their case.

25. The learned First Appellate Court mis-viewed the case in assuming that the petitioners were before the Court to enforce a right of easement. Their case was for injunction against obstruction of a public I passage. Public right of way being unconnected with a dominant tenement is a right in gross and clearly distinguishable from an easement. Further, as found above, since defendants 1 and 2 had not purchased the entire area of Khasra No. 2616 they had, no right or title to the aforesaid piece of land and, therefore, it was not a case where right of easement over somebody else's property was being claimed by the petitioners.

26. The contentions of the learned counsel for respondents 1 to 4 already stand dealt with in the preceding paragraphs except the contention that this revision petition was not filed by a duly authorized person. It was explained by the learned counsel for the petitioners that the revision petition was filed through Agha Salamat Khan the husband and attorney of petitioner No. l who was attorney of petitioner No. 3 as well. The Vakalatnama in favour of Sardar Muhammad Akram, Advocate was executed by the attorney of petitioner No.

1. However, another power of attorney is on the record, dated 2‑10‑1990 in favour of Mr. Muhammad Farooq Qureshi Chishti, Advocate. It was executed by petitioner No.1, petitioner No.2 and Agha Salamat Ali as special attorney of petitioner No.3. Even if, the revision petition could be said to have been filed initially on behalf of petitioner No. l only, it was maintainable on her behalf alone although the power of attorney latter filed on behalf of all, the three petitioners has the effect of curing the defect, if any.

27. For what has been stated above, this revision petition is allowed. The judgment and decree, dated 26‑5‑1990 of the learned First Appellate Court are set aside restoring the judgment and decree of the learned trial Court decreeing the suit of the petitioners. No order as to costs. Q.M.H./M.A.K./K‑91/L Revision allowed.