994 PLP 1695 (CLC)

Ch. Ata Ullah for Appellant. Muhammad 1qbal Chaudhry for Respondent. Date of hearing: 26th April, 1994. This second Civil Appeal solely turned on effect of acquisition of evacuee property under section 3 of the Displaced Persons (Compensation & Rehabilitation) Act, XXVIII of 1958 regarding easementary rights in it. Learned Courts below relied on cases in Haji Abdul Karim v. The Chief Settlement Commissioner and others PLD 1961 (W.P.) Lahore 394, Subedar Muhammad Afzal v. Syed Nafis Ahmad and others PLD 1962 (W.P.) Lahore 45 to hold that upon acquisition of evacuee property, it vested in the Central Government free from all encumbrances which extinguished easementary rights in it also. To the two judgments relied upon by the learned Courts below, another case in Muhammad Amin and 5 others v. Moulvi Muhammad Hassan and 4 others PLD 1985 Quetta 210 which adopted their rationale could also be added. In all the three cases, the view prevailed that easement rights in respect of evacuee property did not survive its acquisition under section 3 of the afore‑noted Act. This view was' followed in the Courts below with the corollary that the appellant's suit for claiming certain easements for in‑flow of light and yr from the adjacent plot was dismissed by them. Appellant was a displaced person. An evacuee residential House No. 7, Street No. 38, Ram Nagar, Sanat Nagar, Lahore was transferred to her, PTD in respect of it was also issued. Respondent purchased an adjacent evacuee plot in auction held on 8‑9‑1960. T.O. was issued to him on 31‑8‑1963. He started construction of a house on the plot auction‑purchased by him. Appellant instituted a civil suit for stopping the respondent from constructing a wall in front of her two ventilators existing in the residential house for stopping the necessary in‑flow of light and air to her house. She asserted that she had acquired easements of air etc. on account of its uninterrupted user and enjoyment for the past several years. Respondent contested the suit and denied the easement rights claimed by the appellant against him. The trial Court settled following preliminary issue on 27‑7‑1971: "Whether there does not exist any right of easement attached to the plaintiff's property and as such the plaintiff has no cause of action? OPD." Thereupon, it adjourned the suit for production of evidence and hearing of arguments. Both the parties did not opt to adduce any evidence and decided to address the arguments only. Upon hearing them, the trial Court relied upon afore-noticed two judgments of this Court and held that easement rights, if any, were extinguished with the act of acquisition of evacuee property by the Central Government which then vested in it free from all encumbrances. Learned lower appellate Court also shared the view of the trial Court and dismissed the appeal preferred by the plaintiff‑appellant. Thereupon, the matter was brought to this Court and admitted to hearing on 19‑6‑1972. Ever since, it awaited adjudication. Learned counsel were heard on merits of the above plea. Learned counsel for the respondent added a decision in the case of Muhammad Amin & 5 others (supra) to support his contention about extinguishment of easement rights upon acquisition of evacuee property under section 3 of the afore noticed Act. The view taken runs contrary to the cases in Mohsin Ali and another v. The State 1972 SCMR 229, Imam Ali v. Muhammad Din and r others 1989 SCMR

960. In the last case, it was observed by the Supreme Court that "'Law of Easements, it is well settled now, is being applied to the evacuee properties transferred under the Settlement Laws". Therefore, impugned judgments could not be upheld. The result must be a remand to the trial Court for decision of points at issue on merits in accordance with law. Upon the aforesaid view of the matter, second appeal is allowed; impugned judgments and decrees of the Courts below are set aside and the suit is remanded to learned Senior Civil Judge, Lahore for its trial on merits and decision afresh in accordance with law. Since the matter had already suffered enormous delay in this Court; learned trial Court shall expedite its final I decision for putting an end to the controversy soon. Parties shall appear in his Court on 28‑5‑1994. As far costs, parties shall bear their own costs. Records shall be immediately returned. AA/J‑78/L. Case remanded.