2024 PLP 839 (MLD)

SHAHID KHAN, J.

The petitioner has called in question the judgment and decree of the learned Additional District Judge, Buner, dated 20.03.2023, whereby, his appeal was dismissed, and consequently, the judgment and decree, dated 21.06.2022, of the learned Civil Judge-VII, Buner, in respect of the subject property situated in the vicinity of Tehsil Daggar, District Buner, was maintained.

2. In essence, the respondent No. 1/plaintiff, Bakht Afsar, approached the learned trial Court through a lis for permanent/mandatory injunction to the effect that he and the pro forma defendants Nos. 3 and 4 are owners in possession of the subject property, detailed in the head-note of the plaint; that he is in possession of a specific area of the subject property, which was given to him in a private partition and that the defendants Nos. 1 and 2 have no right whatsoever to interfere in the same by way of using it for drainage.

3. The subject claim was contested by the petitioner/defendant by filing his written statement. After recording evidence, far and against followed by hearing of learned counsel for the parties, the claim of the respondent/plaintiff was allowed by the learned trial Court vide judgment & decree dated 21.06.2022, followed by the judgment and decree of the learned appellate Court dated 20.03.2023, hence, the subject Revision Petition.

4. Arguments of learned counsel for the petitioner have been heard and the record scanned with his valuable assistance.

5. It is floating fact on surface of the record that the respondent/plaintiff is owner in possession of the subject property to the extent of his share. The factum of his ownership has been admitted by the petitioner/defendant in para-2 of his written statement. Moreso, the commission report as well as the revenue record further supports ownership of the respondent/plaintiff. As such, to this extent, there is no dispute at all.

6. So far as easement right of the petitioner/defendant is concerned, in this regard, the learned trial Court has appointed a local commission with certain TORs, who visited the spot, inspected the site in presence of Patwari Halqa, attorneys of the parties, elders of the locality and determined the controversy involved in the subject case. He was directed to determine whether the defendants are draining the waste water into the property of the plaintiff or draining into the common water channel situated therein, in this regard, he stated that: He was also directed to determine whether an alternate route is available to the petitioner/ defendant for drainage or net, in this regard, he submitted the following report: He appeared before the Court as CW-1. In his cross-examination, he admitted that:

7. So far as an alternate drainage watercourse is concerned, the petitioner/defendant while appearing in the Court as DW-1, has himself admitted in his cross-examination that: In view of the above, the Court reached to the conclusion that an alternate drainage watercourse is available to the petitioner, as such, the pre-requisite conditions for acquisition of easement right have not been fulfilled, therefore, on the basis of evasive statement of using the subject property for drainage since long, the petitioner could not claim easement right. Reliance is placed on the judgment of this Court rendered in the case of Safdar Shah and others v. Mehboob-ur-Rehman reported as PLD 2017 Peshawar 14, wherein, it was held that: "The easement of necessity is not all at the wish and whims of the plaintiffs, if other alternate access is available, though inconvenient. No claim can be entertained for easement of passage on the choice of the plaintiff. Mere use of a path through passing property would not bestow any right upon the claimant and owner of the property at any stage had the right to restrain the claimant from using the same." Similarly, in the case of Atta Muhammad v. Ghulam Din reported as 2011 CLC 220 [Lahore], the Lahore High Court has also held that: "The claim by the petitioner/plaintiff that he had no other passage to have access to his property is nullified by his own evidence. He has to prove his right of passage on the basis of easement. Firstly, no evidence is led to prove the existence of any such right and secondly the right of way claimed through easement is a right of easement by necessity. This necessity must be absolute one and if any alternate mode or passage is available then one cannot claim such right." In the case of Hamid Shah v. Hakim Khan and others reported as 2003 YLR 93 [Peshawar], it was held that: "Another aspect of the case is that the petitioner/plaintiff had alternate access to his field and he used the same at his leisure. Therefore, the learned Courts below had rightly declined the right of easement to the petitioner/plaintiff."

8. To conclude, it is observed that the learned trial Court vide judgment and decree 21.06.2022, has rightly decreed suit of the respondent/plaintiff followed by the judgment and decree dated 20.03.2023, of the learned appellate Court, wherein no illegality or material irregularity could be pointed out by learned counsel for the petitioner, warranting interference of this Court in exercise of its jurisdiction under section 115, C.P.C.

9. For the reasons stated hereinabove, the subject Revision Petition is devoid of any merit, which is hereby dismissed in limine. JK/23-P/Pesh. Revision dismissed.