P L D 1975 Peshawar 82 (PLP)

2. It has been contended on his behalf that the decision of the Court below that the defendant-respondent has prescribed the right of casement and that of the learned District Judge that the defendant-respondent was also entitled to passage over the verandah in question as an easement of necessity, were not sustainable in law and that evidence brought on the record by the parties has been misread by the two Courts below.

3. The defendant-respondent was served but he remained absent in spite of it. The order in this appeal is an ex parte order against him.

4. I have gone through the record of the case with the help of Qazi Abdur Rashid, the learned counsel for the appellant and have also heard him in support of the contentions that lie raised.

5. To appreciate the contentions raised it will be necessary to advert to the broad features of the case which are almost admitted or so to speak which cannot be seriously questioned. If one keeps the site plan (Exh. P. W. 10/3) in view, it will facilitate the understanding of the controversy. House marked `Alif' which has been now altered to some extent by the defendant-respondent, was purchased by the plaintiff-appellant and one Abdullah Khan, who happened to be the father of the defendant-respondent, from one Miran Bakhsh by registered deed dated 11-5-1932, copy Exh. P. W. 10/ 1 on the record. The document will show that the vendor had also transferred to the vendees a path six feet wide from the land in his possession towards the East which belonged to the Municipal Committee and Cantonment. Miran Bakhsh later by deed, copy Exh. P. X, transferred another house alongwith vacant site adjacent thereto to said Abdullah Khan and Babu Muhammad Ishaq, plaintiff: appellant, saying that the house and the vacant site being demised was not burdened with encumbrance of any sort. This property, I am told, corresponds to the property enclosed in X1, X2, X3 and X4 of Exh. P. W. 10/3 notwithstanding the fact that in the Courts below the plaintiff appellant asserted that the property conveyed to them by the said document was X1, X2, and la of the said plan. The property acquired through the subsequent document was re-constructed soon after its purchase and plan as in Exh. P. W. 3/1 was submitted. This plan will show that the portion re-constructed correspond to X1, X2, wao, la of Exh. P. W. 10/3. It appears that the construction by the plaintiff-appellant and Abdullah Khan of both the houses acquired by them was joint and that they remained joint till 19-2-1937 when a mutation was effected by the Secretary, Municipal Committee, Abbottabad transferring house Nos. 478, 479 and 479/1 to the plaintiff-appellant vide Exh. P. W. 1/1. The defendant-respondent got house `Alif' of site plan Exh. P. W. 10/3 from his father by purchase on 20-3-1945 vide Exh. P. W. 10/2. In this deed Abdullah Khan indicated that the house being conveyed to him by his son has the house of Qazi Muhammad Ishaq towards its East.

6. The learned trial Judge after entering upon an elaborate discussion of the circumstantial, documentary and oral evidence, came to the conclusion that the disputed path which passes through the verandah Exh. P.W. 10/3 was in existence since 1933 and was being used as an approach by the defendant to his house for a period exceeding twenty years and as such he had acquired full right of easement by prescription. The judgment of the learned trial Judge, however, does not indicate that use of the path by the defendant-respondent was as of right. The plea of the defendant respondent that he was entitled to the path as an easement of necessity was repelled with the remarks that, firstly, there was a foot-path starting from the northern end of the common lane between the houses of the parties which passed through the private land of the Cantonment Board, Abbottabad adjoining the house of the parties on the northern side and was eventually con nected with the `Pakka Road' at a distance of about eighty yards. Further more, there were also a path marked as on Exh. P. W. 10/3. The contention of the learned counsel for the defendant-respondent that the paths could be closed by the Cantonment Board or the Auqaf De partment, however, did not impress the learned trial Judge. It seems that the learned trial Judge was of the view that the question of the necessity could be taken up when the problem will arise and at the moment the defendant had not been able to make out a good case for upholding his right on the basis of necessity.

7. The appellate Court, that is to say, the District Judge entered upon an elaborate discussion on the question of easement of necessity and concluded that the passage was necessary for the enjoyment of the property of the defendant-respondent. The learned District Judge added that out of the three out-lets available to the defendant-respondent, two were blocked by the private property of the Anjuman-e-Islamia and the Cantonment Board and the third one which was in dispute was the only one which could be used by the defendant-respondent. On the question of prescription the learned District Judge adverted to the fact that right of passage having been granted since May 1932 could not be affected by the subsequent acquisition in 1933 and that this path having been used ever since then, it was for the plaintiff-appellant to show that user of the verandah as passage by the defendant-respondent was discontinued at some stage. The learned District Judge further observed that even if he was to ignore the oral evidence produced by the respondent the conclusion would be that the defendant respondent has been using the disputed verandah as a passage right from the year 1932, that is to say, more than twenty years.

8. Before I proceed to discuss the merits of the contentions urged on behalf of the plaintiff-appellant, I should like to say that the evidence produced by the defendant-respondent in support of his assertion that he has been using the disputed verandah as a path would not in the first instance show that the exercise of the right by the defendant-respondent, as is contended, was as of right and then the witnesses cannot be said to be disinterested. D. W. 3, Abdul Waheed is the defendant-respondent himself. Sh. Muhammad Afzal (D. W. 2) admits that he was ejected by the plaintiff-appellant by bringing a suit. Taj Muhammad (D. W. 4) admits that he had been a partner of the defendant-respondent. Abdur Rahman only lived in the house of the defendant-respondent in 1946 and for this reason his statement cannot be conclusive. From 1946 to 1962 twenty years will not be completed. Mushtaq Ahmad (D. W. 5) though he denies his relationship with the defendant-respondent, can be ruled out on the ground that he was not a straightforward person when he denies all knowledge about the several matters which were put to him in cross-examination. It appears that it was precisely for these reasons that the learned District Judge was also inclined to ignore the evidence brought on the record by the defendant-respondent and was of the view that in the circumstances of the case the burden of proof was to be discharged by the plaintiff-appellant and that he had not brought any evidence on the record. This view of the law is not acceptable for the onus of the issues had been placed on the defendant-respondent on the basis of his own plea and that it was virtually impossible for the plaintiff-appellant to prove a negative contention.

9. The fact that in the deed Exh. P. W. 10/1 dated 11-5-1932, Miran Bakhsh allowed right of passage to the plaintiff-appellant and Abdullah Khan has greatly influenced the learned Courts below in the appraisement of evidence. Both the Courts thought that since the passage had been granted in 1932 and this was presumably over the land represented by of Exh. P. W. 10/3, this right continued ever since then. But this assumption overlooks the provisions of section 45 of the Easements Act, 1882, which states that an easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages. Illustration (e) of the said section will clinch the matter and the same reads: The joint owners of the dominant heritage jointly acquire the servient heritage; the easement is extinguished. It is conceded that the plaintiff-appellant and Abdullah Khan acquired the servient heritage in February 1933 by Exh. D. X. and after this concession it will become impossible to contend that though the property belonged to the plaintiff appellant and defendant-respondent's father jointly, the right of way granted in 1932 still continued to subsist. It is true that the words:- as in Exh. P. X. would refer to encumbrances like mortgage etc. or the rights of parties other than the parties to the transaction. But to this proposi tion I cannot subscribe that the contents of this deed would not be binding on the defendant-respondent or for that matter on the plaintiff-appellant. Quite evidently for their title they were relying on this title deed and if a wrong statement was there, it was their duty to see that it was duly corrected. It is true that in Exh. P. W. 3/1 the plaintiff-appellant and Abdullah Khan described the disputed passage as verandah and covered passage but I cannot persuade myself to agree with them that this descrip tion was intended to show that the verandah should also act as passage for the existing houses. This verandah could be the covered passage and appears to be the covered passage of the building that was proposed to be built that is to say, that building which by now stands transferred to the plaintiff-appellant. Again there was an occasion for the predecessor-in -interest of the defendant-respondent to have indicated in the application Exh. P. W. 1/1 that Abdullah Khan reserved his right of passage over the verandah in dispute. This was not done in 1937 and in a case of necessity like the one which is now being set up on behalf of the defendant-respondent, one will be entitled to assume that the necessity did not exist and that there was an alternative arrangement. It is indeed inconceivable that whey, the property is being partitioned and the defendant-respondent's father was to have a claim of passage over the verandah of somebody's else property, he would not have got that clarified in the application for partition or the mutation order. In the plea that no such rights were acquired, I am confirmed by the fact that in the sale-deed in favour of the defendant respondent, which was executed on 20-3-1945, that is to say, about eight years later, towards the East of the house marked `Alif' the house of plaintiff-appellant was shown. If the defendant-respondent's predecessor had any right over the verandah in dispute, he would have certainly indicated in the document that towards the East, in addition to the house of Qazi Muhammad Ishaq plaintiff-appellant, there was also the passage of the house. How could Abdullah Khan himself omit to mention it when he was going to state in the document itself:

10. There is yet another hurdle in the way of the defendant-respon dent and that is to be found in the fact that he alleged in his written state ment that the passage in dispute was owned by him jointly with the plaintiff-appellant and when he came into the witness-box he also reiterated this plea. As a matter of fact his main defence in the suit was that the verandah in dispute over which the passage existed was a joint property and that in the alternative he should be held to have prescribed rights of passage and was also entitled to it as an easement of necessity. Since there can be no easement without animus and a mere passage by licence would not entitle the claimant to the right of easement unless he can prove that he has been doing act as of right, the contention that he exercised the right because he was a joint owner will destroy the claim of easement. The two contents are self-destructive and would disentitle the defendant-respondent to a finding that the right in question had been prescribed by him or he was entitled to it because of necessity. In this view I am supported by the authority in Khanchand Jethamal and another v. Naraindas Bahlajrai and others (A I R 1939 Sind 110) where in almost similar circumstances the following observations were made: "And as the question of animus is a question of fact to be proved by evidence, we think that if the plaintiff leads evidence in the witness- box to show that he is the owner of the land over the statutory period or some part of it, he has destroyed his case which is depen dent upon his showing that he is not the owner of the land over the statutory period, has not claimed to exercise the rights of owner but has claimed to exercise the rights over the land of another as being servient land subject to the exercise of his right as owner of the dominant land. We think, therefore, that in this particular case as the plaintiff has led evidence to show he has within the statutory period exercised the rights he claims over the walls as owner and an issue was raised to that effect, the fact that he has failed to prove that he is the owner does not permit him to ignore the evidence that he has himself adduced and has asked the Court to rely on, nor may the Court say that as he has failed to prove his right as owner he can be given the lesser right, the right of the owner of an easement, because the evidence that be has led to prove the one case, though finally unsuccessful, is fatal to the other. He cannot in the witness-box assert the exercise of the right of the ownership and succeed in a case where he must prove the exercise of his right of easement. We think, therefore, that both the Judges in the Courts below were right when they came to the conclusion that in order to prove the right of easement the necessary animus in the exercise of that right, must be proved, and while a plaintiff may in his pleadings raise inconsistent pleas, then if the evidence he adduces to prove the one case is such that it may be fatal to the other, it follows that he must fail in both." The view of the learned District Judge that there was an easement of neces sity is not sustainable in law, for, there is a passage to the North and the alternative route suggested by the plaintiff-appellant even though it might be highly inconvenient, is available to the defendant-respondent. An easement of necessity is not allowed for the reasons of convenience and in this view of the matter I am supported by Ahmad Ali Fakhruddin Bohra v. Dhondba Dasrath Kalar (A I R 1937 Nag. 179), as also by observations in paragraph 13 of Safar Ali v. Abdul Hashim and another (P L D 1963 Dacca 201). I would also like to place it on the record that by a separate suit against the Auqaf Department in which the plaintiff-appellant's appeal has been also accepted today, the alternative path suggested by the plaintiff appellant has been found to be the property of the plaintiff-appellant on the basis of demarcation proceedings. It comes to this that the argument that that path belongs to Auqaf Department is no longer available to the defendant-respondent.

11. Before I part with the case I should like to reproduce the observa tions of Ibrahim J. in Abdul Hafiz and others v. Mafizuddin and others ((1955) 7 D L R 577), which are as follows: "A prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right, i.e., no attributable to permission implied or express. The mere fact that one person walks over the land of another does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their neighbor, friends and relations with their tacit permission. Such user, though continuous, and long, is seldom understood as being in assertion of any right. In a suit for prescriptive right of way the plaintiff must show that his user was such as, was sufficient to put the servient owners on notice that the enjoyment was not attributable to his tacit permission or favour. The learned Subordinate Judge does not refer to any evidence to justify his finding that the user was "as of right". In England, if long user is proved, it is presumed that the enjoyment was as of right. It would be unsafe to draw such an inference from user in this country, vide the case of Shaikh Khoda Bakhsh v. Shaikh Tajuddin and others . . Enjoyment "as of right" as distinguished from "of right" means, as if the dominant owner had the right to the enjoy ment. Whether the enjoyment was as of right or attribut able to tacit permission, may be difficult to determine in many cases; but, however, great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right. Whether the enjoyment was had as of right, is to be inferred from the circumstances of each parti cular case, and it is the duty of the dominant owner to prove facts which will justify such an inference To entitle him to such an inference he must show that the acts of actual user were such as to put the servient owner regarded as a reasonable man on notice that a right in the nature of an easement was being asserted or claimed over his property."

12. The above quotation will lend ample support to my conclusion that the evidence produced by the defendant respondent will not help advance his case. He should have proved beyond any shadow of doubt that the right exercised by him was not permissive and that his exercise was as of right. On this point, as said before, there is no evidence and one cannot overlook that in a Muslim Society where the neighbors are to be accommodated to the greatest possible extent, a casual passage on this or that occasion through one's courtyard or verandah will be referable to a licence and not as of right as is known in the Law of Easement.

13. The appeal is hereby accepted and the plaintiff-appellant's suit is, decreed. Parties should bear their own costs throughout. K. B. A. Appeal accepted.