1990CLC851 (PLP)

(b) Easements Act (V of 1882)‑‑‑ ‑‑‑Ss. 12 & 15‑‑‑Easement‑‑‑Both Courts below concurrently finding that there was no prima facie proof to sustain the stand of petitioner that he had acquired by prescription the right of way over the disputed land or that it was a private passage‑‑‑Petitioner had not stated the time from which he or his predecessor had allegedly been using the so‑called passage‑‑‑Such fact alone, held, was sufficient to non‑suit the petitioner as regards his claim of easement. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑

0. XXXIX, Rr.1 & 2 and S.115‑‑‑Easements Act (V of 1882), Ss.12 & 15‑‑ Temporary injunction‑‑‑Petitioner or the persons occupying his property had never been using the disputed passage nor their property had any opening on respondent's side‑‑‑Interference in the orders of refusal of temporary injunction passed by Courts below, regarding respondents' threats to close the passage by raising a wall would not be justified in exercise of revisional jurisdiction. M.M. Saeed Baig for Petitioner. Zaeem‑ul‑Farooq Malik for Respondents. The application for temporary injunction filed by the petitioner in a suit for permanent injunction, was dismissed by the learned Civil Judge, Lahore, on 22nd of December, 1988. This dismissal was maintained by the District Judge, Lahore, who dismissed the appeal, filed by the petitioner on 11th of January, 1989.

2. In the plaint it was alleged by the petitioner that he was the owner of property No.SR‑15‑A situated at Fatima Jinnah Road, Lahore, on the Western side of which exists a passage which was in use of the petitioner and other inhabitants of the area. However, since the defendants/respondents were threatening to close the said passage by raising a wall, the petitioner was obliged to file the suit.

3. The application for temporary injunction, filed by the petitioner alongwith the suit was resisted by the respondents on the basis that the petitioner was a trespasser who had encroached upon the land belonging to the respondents and further that there was no passage on the Western side of the property. It was further pointed out that the so called, passage was the private property of the respondents over which the petitioner had no right. While dismissing application for temporary injunction, the trial Court came to the conclusion that the petitioner had no prima facie case, as he had failed to show that he had any right of easement over the land belonging to the respondents. The District Judge while dismissing the appeal of the petitioner also held that there was no prima facie case in favour of the petitioner who was found to be an eneroacher. The learned District Judge also observed that the suit was barred by section 91 of the Civil Procedure Code and also that there was no prima facie proof to show that there exists a passage for the use of general public. It was also found that according to the approved site plan of the construction, being raised for petitioner, his property has access from Queens Road (Shahra‑e‑Fatima Jinnah).

4. The grant of temporary injunction was a matter in the discretion of the Courts below. It is well‑settled that while exercising revisional jurisdiction, this Court will not interfere unless the discretion is shown to have been exercised in an arbitrary or capricious manner. (Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 refers). In the present case, both the Courts have concurrently found that there was no prima facie proof to sustain the stand of the petitioner that he had acquired by prescription, the right of way over the disputed land or that it was a public passage. It is important to note that in the plaint, the petitioner has not stated the time from which he or his predecessor has allegedly been using the so‑called passage. This fact alone is sufficient to non‑suit the petitioner as regards his claim of easement. According to the Khasra Amarti, produced before this Court, by the petitioner himself, the disputed Khasra No.989 having an area of 22 Kanals 1 Maria 2 Sq. Ft. is mentioned, as a bungalow in the ownership of the predecessor of the respondents. No part of this Khasra is described as a public path or a passage. The only reliance by the learned counsel in this behalf is on the survey map (MASAVI) prepared in the year 1945 in which the part of Khasra No.989 is shown to be a passage. This document also does not advance the case of the petitioner any further inasmuch as the path indicated in the plan, leads from the main bungalow to the Queens Road. This passage is not shown to be in the use of the general public. The respondents having purchased Khasra No.989 in its entirety have become its owner and are entitled to use it according to their own needs. Be that as it may, it has not been shown that the petitioner or the persons occupying his property, has ever been using the said passage or their property had C any opening on the Western side. In this view of the matter, there is hardly any justification for interfering with the orders of the two Courts below in the exercise of revisional jurisdiction.

5. In view of what has been stated above, this civil revision fails and the same is hereby dismissed in limine. M.A.K./I‑169/L Petition dismissed.