2002 PLP 121 (MLD)

(b) Easements Act (V of 1882)‑‑‑ ‑‑‑‑Ss. 12, 14 & 15‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54 ‑‑‑Right of easement in respect of passage ‑‑‑Entitlement‑‑‑Suit for declaration and permanent injunction‑‑‑ Plaintiffs had claimed that they had acquired the right of easement to use the passage in dispute by afflux of time and transfer of said passage to the defendant by the Authority was illegal and unlawful‑‑‑Validity‑‑‑Grievance of the petitioners was that the width of the metalled road constructed by respondents was 15 feet whereas the passage in dispute was about 40 feet and it was on the basis of width of the road that petitioners were claiming the right of easement‑‑ Metalled/Pakka road had been constructed quite close to disputed passage which could be used by the plaintiffs for the purpose of access to their Abadi‑‑Parallel or adjacent constructed road having provided effective access to the Abadi of the plaintiffs they could not claim any right of easement qua a particular passage and could not prevent the defendants from using the said passage‑‑‑Right of easement to the plaintiffs was qua access to their Abadi, which in no manner had been affected on account of the closure of the disputed passage because of construction of metalled road. Sarfraz Ahmed Khan Rana for Petitioner. Malik Khizar Hayat, A.A.‑G. Mian Ashiq Hussain for Respondent No.3. Petitioners' suit for declaration was allowed by the learned Civil Judge, vide judgment and decree dated 18‑11‑1998. Against the above, respondents preferred an appeal, which was accepted and the judgment and decree of the trial Court, was set aside, resultantly, the suit of the respondent, was dismissed.

2. Brief facts of the case are, that on 7‑9‑1996, the petitioners filed a suit for declaration and permanent injunction, claiming that the passage in dispute is being used by them, since long and thus, they have acquired the right of easement, the transfer of part of the said passage, to the Union Council, by the Secretary Colony, vide Mutation No.579 dated 9‑6‑1993 is illegal and unlawful. Primarily the case of the petitioner was that they had acquired the right of easement to use the said passage by afflux of time. This suit was contested by respondent on factual as well as legal grounds, particularly, that of limitation; issues were framed; parties were put to trial and the learned Civil Judge as mentioned above, decided all the issues in favour of the petitioner and decreed the suit, but in appeal, learned Appellate, Court has reversed the finding on Issue No.l i.e. pertaining to the limitation and Issue No.5, if the petitioners are entitled to use the disputed thoroughfare. The view taken by learned Appellate Court is that the mutation was attested on 9‑6‑1993, whereas, the suit has been filed on 7‑9‑1996, challenging the mutation, therefore, according to Article 14 of the Limitation Act, the suit was barred by time.

3. I am afraid, the view taken by the learned Appellate Court is not correct, because the petitioners in their plaint in unequivocal terms has stated that the cause of action had accrued to them a week before the filing of the suit, when the respondents closed the road/passage and started constructing the office of the Union Council, thus it is this point of time, when the cause of action would accrue to the petitioners to enforce their right of easement, therefore, the findings of the Appellate Court on Issue No.l, are erroneous and cannot be sustained. On Issue No.5, the Appellate Court has come to the conclusion that quite close to the disputed passage/road, a metalled road has been constructed by the respondents, thus the petitioners can use the said road, for the purpose of access to their Abadi. Learned counsel for the petitioners, states that this finding is result of misreading and non‑reading of the evidence. However, when asked, it is admitted by the learned counsel for the petitioner, that a Pakka road has been constructed, quite close to the disputed road/passage. However, his grievance is that width on the said Pakka road is, 15 feet, whereas the road in dispute is about 40 feet. It is on the basis of width of the road, that the plaintiffs are claiming the right of easement. I am afraid, this contention has no force. If a parallel or adjacent road has been constructed, which provides effective access to the Abadi of the petitioners, they cannot claim any right of easement qua a particular passage, or preventing the respondents from using the said passage for the purpose of raising construction of the office of the Union Council. Right of easement to the petitioners is qua access to their Abadi, which in no manner, has been affected on account of the closure of the disputed passage because of constructing the metalled road. In the light of above, I do not find any error in the judgment of the learned Appellate Court in Issue No.5. Therefore, this petition has no E force and is hereby dismissed. H.B.T./S‑296/L Petition dismissed.