P L D 1969 Lahore 95 (PLP)

The facts giving rise to this second appeal are these. A suit for mandatory permanent injunction was brought by Ghulam Muhammad and four others, the appellants, against Murad Bakhsh and his son Ghulam Hussain, the respondents, requiring the respondents to remove obstruction from their way starting from points `AB' and ending at points `EF' shown in the plan Exh. C/1 attached to the plaint alleging that this passage joined their house marked `C' with the main fare at points `AB' taking turn near point `S' and that there was no other passage for them to use for having access to their said house and that the respondents had obstructed it by raising a wall across the points `EF', some three months before filing of the suit obstructing the appellants' passage. The suit was resisted on the ground that there was no alleged passage, nor was there any right of user and that the respondents had raised the wall `EF' seven years before the institution of the suit. On the pleadings of the parties, the following issues were framed by the trial Court: "(1) Was there any passage (way) at points `AB' and `EF' in the map attached? If so, what was its nature? O. P. (2) When did the defendants obstruct it fn case it is proved to have existed there? O. P. (3) Is the suit time‑barred? O.D. (4) Relief." The suit was decreed, permanently restraining the respondents from blacking or otherwise obstructing the passage shown in Exh. C/1, held by the Court as an open public way, so as to prevent the appellants from its user. On appeal, the learned District Judge has set aside the judgment and decree of the trial Court and dismissed the suit, holding that the appellants had failed to substantiate their claim as regards the passage at points `AB' and `EF' shown in Exh. C/1.

2. In this second appeal, learned counsel contends that the findings of fact arrived at on issue No. 1, by the lower Appellate Court stand vitiated for the reason that the said Court has misdirected itself is not considering that there are three distinct classes of rights of way and other similar rights recognised in this country: . . . . . . . . . First, there are private rights, in the strict sense of the term vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the Queen's subject; and the source of these is ordinarily, dedication." It is argued that the appellants claim enforcement of way of the second class, namely, a village pathway and as such section 91 of the Code of Civil Procedure is no bar to the suit. In this connection he has referred to Mst. Ram Kali and another v. Munna Lal and others (A I R 1939 All. 588) and Harish Chandra Saba v. Harish Chandra Chuckerbutty and others (A I R 1923 Cal. 622). It has also been argued that the Commissioner's report was a piece of evidence under Order XXVI, rules 9 and 10 of the Code of Civil Procedure and the Court was not to overrule the same lightly. It was lastly contended that the learned District Judge has erred in holding that the trial Court has wrongly relied on sale deeds Exhs. P. 1 and P.

2. He maintains that such documents are admissible in evidence to contradict a witness when that witness is a party to the document. Sheikh Ketabbuddin and others v. Nafar Chandra Pattek and others (A I R 1927 Cal. 230), was relied upon for the purpose. However, towards the close of his arguments, learned counsel fairly conceded that Exh. P. 2 has not been used to contradict any witness and way, therefore, inadmissible. We further accepted the factual position that it was only D. W. 2 Farid Khan, who denied a part of the contents of Exh. P. 1 pertaining to the disputed passage on the south.

3. I have been taken through the depositions of various wit nesses produced by the parties and the documentary evidence placed on the record. After hearing learned counsel for the parties I find that no doubt there are three classes of rights of way as mentioned in Chuni Lal v. Ram Kishen Sahu ((1888) 15 Cal. 460), (noted above in the arguments of learned counsel for the appellants), it is not clear from the plaint as to what kind of right was claimed by the appellants. All that is said in the plaint is that the appellants are inter‑related and they have a common courtyard and that the access to their house from the abadi deh is through the passage meeting the gali a'm at points `AB' and that there is no other passage except the one in question and the respondents have obstructed it by raising a wall. No customary right of way as a village path has been pleaded. On the other hand, in the statements of Ghulam Muhammad appellant (P. W. 1) and Nur Khan (P. W. 4) the passage is claimed as a public way and it was perhaps on this basis that the trial Court held the passage to be an open public way, which finding has been reversed, and rightly so, by the lower appellate Court on the ground that if the claim was that of a public way, the suit came within the mischief of the provisions of section 91 of the Code of Civil Procedure, Learned counsel for the appellants has now adopted a different line of argument and he contends that as a matter of fact the plaintiffs' claim is for enforcement of way of the second class, i.e. a village pathway. Although such improvements upon the case, as placed before the Courts below, are not permitted at the second appellate stage, yet considering the question raised to be a legal one. I have allowed learned counsel to argue the point. After hearing him, however, I find that the appellants have failed to prove that the right of way claimed by them had its origin in custom, which is a condition precedent for establishment of such a right. From the evidence on the record, it cannot be urged with success that there has been an open and uninterrupted enjoyment of the property for a long period un-explained, so as to attract the maxim omnia presumuntur rite esse acta. In the circumstances, no presumption can be raised that the right claimed by the appellants had a legal origin and the people of the locality, or at least the appellants, had a right to use this passage. As the appellants have failed to successfully canvass the main point raised before this Court, I am not called upon to express any opinion on the other contentions.

4. The result is that the appeal fails and is dismissed, leaving the parties to bear their own costs. A. E. Appeal dismissed.