2013 PLP 947 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioners have challenged the judgment and decree passed by the Addl: District Judge, Bahawalpur dated 26-2-2000, whereby the appeal filed by the petitioners as well as Province of Punjab were dismissed, and the judgment and decree passed by the Civil Judge 1st Class, Bahawalpur dated 24-1-1995, whereby the suit filed by respondent No.1 was decreed.

2. The facts as leading to the instant civil revision are that on 30-6-1992 respondent No.1 plaintiff filed a suit for declaration alleging therein that he is owner of suit land fully described in the head note of the plaint and the action of layout of Soling by the official respondents with the connivance of respondent No.7 is illegal and also prayed for mandatory injunction and for damages also. The defendants appeared and filed their respective written statements. The trial court after framing of issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. After completion of trial the trial court vide judgment and decree dated 24-1-1995 decreed the suit of the plaintiff-respondent No.1. Feeling aggrieved thereby, the appeals filed against that judgment and decree were dismissed by the Addl: District Judge, Bahawalpur vide judgment and decree dated 26-2-2000. The petitioners opted to file revision petition before this Court, whereas the Government of the Punjab has not filed any revision.

3. It is contended by the learned counsel for the petitioners that the issues have not been properly framed, as no issue covers the plea of defence taken by the private defendants in their written statements, therefore, prejudice has been caused to the petitioners-defendants; that it is a matter of public importance, so the impugned judgments and decrees be set aside and case be remanded to the trial court with the direction to frame an issue with regard to the right of easement claimed by the petitioners-defendants and after giving opportunity to the parties, decide the same afresh. It is further contended that as the suit has been filed under section 42 of the Specific Relief Act and prayer for possession has not been made in the suit, therefore, suit was not competent.

4. On the other hand, learned counsel for respondent No.4 has supported the arguments advanced by the learned counsel for the petitioners. Whereas the plaintiff-decree holder (respondent No.1) has contested this civil revision. Learned counsel for respondent No.1 has argued that the ownership of the petitioners with regard to the impugned land under the alleged thoroughfare has not been denied by any one of the defendants-judgment debtors; that even the consolidation proceedings were carried out in this Mouza and according to Exh.P-3 which is "Musawada-Scheme" the specific numbers for roads etc. have been shown in this document; that the land in dispute is admittedly not included in this document; that the Jamabandi (Exh.P-2) has been prepared with regard to the 'Rifah-e-Aam'; that the Exh.P-4 and Exh.P-5 are Uxe ( ) which show the roads etc. It has been further contended that the plea of petitioners that proper issues have not been framed, has no value; that it is proved from the record that the property owned by the plaintiff has been grabbed only for defendant No.7 on the asking of local M.P.A in order to layout of Soling to please the said defendant No.7; that there is no need for prayer of possession of suit land which is not in possession of the defendants-judgment debtors.

5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.

6. The question borne out from the record after its minute scrutiny is that the ownership of the land under the alleged thoroughfare/road is of the plaintiff-respondent No.1. The claim of petitioners-defendants that this thoroughfare/road is of a right of easement of necessity available to them. The legal objection is that whether the remand of case is requirement of law or will it serve any purpose.

7. It is settled by the law that the pleadings of parties are ever in their mind during the proceedings of the trial. The party cannot claim after a considerable delay that by not framing the proper issues, it was misled and could not produce the evidence in accordance with its pleadings, as a party is supposes to lead evidence oral as well as documentary in support of its pleadings. The framing of issues is to facilitate the parties with regard to matter in issue. Admittedly the petitioners were defendants in the trial court and they took the plea of easement of right of way, therefore, they cannot claim that they were misled by non-framing of a specific issue on that point. Furthermore, I have observed that the petitioners have not placed on file the copy of issues. Though the issues are available in the judgments of both the courts below but the date of framing of issues is not available and on the record it is not available that the petitioners raised any objection with regard to the non-framing of issue. Learned counsel for the petitioners states that in grounds of appeal the objection with regard to non-framing of issue was raised. I have noticed that grounds of appeal are of dated 21-2-1995, whereas the suit was filed in the year 1992. Therefore, it is not available on the record that at the time of framing of issues, any objection was raised with regard to the non-framing of proper issues. Moreover, after a period of about 20 years the remand of case is absolutely not permissible under the law. Even otherwise I have noticed that no prejudice has been caused by non-framing of specific issue, as the case was in the mind of petitioners-defendants and they were leading the evidence. In this context, light can be taken from the judgment reported as "1988 SCMR 4 (Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another), 1985 SCMR 1 (Mehr Din v. Dr. Bashir Ahmad Khan and 2 others)". Therefore, in my view the prayer of the petitioners for remand of case has no footing and non-framing of specific issue has not caused any prejudice to the petitioners-defendants. They have produced three witnesses and Hafiz Riaz Ahmad himself appeared as DW-1. The official respondents also produced the evidence and Project Manager Ghulam Asghar Niazi appeared as DW-5. The defendants also produced documentary evidence which is available on the file as Exh.D-1 to Exh.D-9.

8. So far as the question of public importance is concerned. This argument is against the admitted position of the record as the witnesses of petitioners-defendants have admitted that this thoroughfare goes to the Dera of Hafiz Riaz Ahmad (defendant-petitioner) and further that even there is other road/way which leads to that Dera also.

9. Under the Easements Act (V of 1882), to prove a right of easement by prescription mere user for innumerable years does not confer prescriptive right of easement. Under section 15 of the Easements Act (V of 1882) this right must be peaceably openly enjoined by any person claiming title thereto, as an easement and as of right without interruption for 20 years. In case in hand, it is evident that defendants remained in possession of land owned by the plaintiff-respondent No.1 as Mustajar/contractor, including the land in dispute. Even otherwise the Constitution of Islamic Republic of Pakistan gives a right to hold and enjoy the property to a person. These rights are sacrosanct which have to be protected as fundamental rights. No person including the neighbour could be allow to diminish the rights in order to enjoy use of his property, as rights to assert the property have been protected under Articles 23 and 24 of the Constitution. If any person claims any right of easement, he is bound under the law to prove without any discrepancy his right in accordance with law. In case in hand, the petitioners-defendants miserably failed to prove their right of easement by prescription as well as the proof of right of easement as necessity. In case of necessity it is the duty of the plaintiff that he must prove that if this right of easement claimed by a claimant is not given to him his property will be ruined for which he is claiming right of easement. In case in hand, it is admitted on the record that there is also another road available which lead to the property of petitioners-defendants, therefore, this right of necessity is also not available to the petitioners.

10. So far as the objection of petitioners with regard to the section 42 of the Specific Relief Act, is concerned. It is not the case of the petitioners that the land under the aforesaid road is in possession of the petitioners-defendants. They have claimed right of easement, so there was no necessity to pray for the possession of suit property. The suit is for mandatory injunction for the removal of said Soling laid out by the official defendants. Therefore, this Court is of the view that there is no defect of form in the suit, as has been highlighted by the counsel for the petitioners. There is revenue record with regard to the roads even the Uxe ( ) showing the roads, is available on the record.

11. In these circumstances, the petitioners-defendants miserably failed to rebut the case of the plaintiff-respondent No.1. Even the DW-5 Project Manager has admitted that land has not been acquired and that he has not denied the ownership of plaintiff-respondent No.1. He also admitted that no statement of land owner is available with regard to his willingness for laying out of Soling upon his land. Moreover, there are concurrent findings of facts recorded by both the courts below. Learned counsel for the petitioners-defendants failed to show any defect in the judgments and decrees passed by the courts below or any misreading or non-reading of evidence on the part of both the courts below.

12. The crux of the above discussion is that I see no substance in this civil revision, which his hereby dismissed with costs. SAK/R-22/L Revision dismissed.