1985 PLP 158 (CLC)

The plaintiff has filed this suit for declaration and mandatory injunction against the defendants. The following facts are alleged in the plainti. That property bearing survey No.41, Sheet No.SR, situated in Saraey Quarters, Karachi, (I will hereinafter refer this property as the "suit property" for the sake of convenience) belonged to the firm of Adamjee Shaikh Jiwan Je and its partners. That in the year 1912, upon dissolution of the said firm the suit property came to the share of one of its partner namely Mohammad Ali Adamjee. On the suit property there existed 3 well-defined separate buildings. Upon death of Muhammad All Adamjee in 1938 the suit property devolved on his three sons namely Fazal. Bhoy, Tahir Bhoy, and Ibrahimjee. The aforesaid three sons of Mohammad Ali Adamjee on 12-4-1940, entered into a family arrangement/partition inter se and as a result of this arrangement between them the suit property was partitioned in three separate portions and assigned three separate numbers namely 41/1, 41/2 and 41/3. Building No.41/1 which is on the northern side came to the share of Fazal Bhoy, Building No.41/2 which is in the centre came to the share of Tahir Bhoy, and Building No.41/3 which is on the southren side came to the share of Ibrahimjee. This partition agreement, dated 12-4-1940, amongst others, provided for closing of gaps in the partition walls and construction of separate drains etc. at common cost. In pursuance of this agreement all three brothers applied for sub-division of suit property into three independent plots buildings to K.M.C., which sanctioned the sub-division and assigned three separate numbers to these buildings namely 41/1, to 41/3. These sub-divided buildings were later mutated in the respective names of the three sons of Late Mohammad Ali Adamjee. According to the sub-division plan sanctioned by K.M.C., each one of these three buildings had ingress and egress separately and independently from Campbell Street. Ibrahimjee the owner of plot No.41/3 made an oral gift of his property in favour of his wife Mst. Ratan Bai whose name was mutated accordingly in the records of right on 12-11-1940 and a registered lease was granted by the K.M.C. to her. The said Mst. Ratan Bai by a registered sale dated 23-8-1944 granted, sold, assigned, conveyed and transferred her rights, interest and title to and in property No.41/3 to one Basant Ram Motwani. Upon purchase of property No. 41/3, Basant Ram undertook to close the gaps in the partition wall between plots Nos. 41/2 and 41/3 and thus interrupted and stopped ingress to and egress from through over property No.41/3. This action on the part of Basant Ram resulted in a report to the Police on 2-9-1944 by Tahir Bhoy, the owner of adjoining building No. 41/2. Basant Ram then filed Civil Suit No.137/45 in the then Chief Court of Sind against Tahir Bhoy for declaration and mandatory/permanent injunction to the effect that the defandent in the suit or any other person under or through him had no right to pass through property No. 41/3 and that said Basant Ram had the right to close the passage and stop the use of the same by the owner of adjoining buildings. The name of plaintiff No.1 was substituted in the above suit on purchase of the property by him from Basantram Motwani. The said suit was later on transferred to the Court of Civil Judge 1st Class, Karachi, and was numbered as suit No.2306 of 1959. The learned Civil Judge dismissed the above suit by order dated 23-12-1961 but on appeal the learned Additional District Judge, Karachi, decreed the suit. A second appeal filed in this Court against the order of Additional District Judge, was pending at the time of institution of the present suit. While suit No.137 of 1945 was pending in the then Chief Court of Sind, Fazal Bhoy the owner of building No.41/1 filed an application under Order I, rule 10, C.P.C., to be joined as defendant in the suit. This application was disallowed by the Court. Upon dismissal of application under Order I, rule 10, C.P.C., Fazal Bhoy filed suit No.85 of 1948 in the then Chief Court of Sind against plaintiff No.1 and Tahir Bhoy. In the aforesaid suit Fazal Bhoy claimed that the defendant No.1 and his predecessor in title have been wrongly denying the said Fazal Bhoy and his tenant the use of the passasge on plot No.41/3 and prayed for declaration that he and his tenant are entitled to use the passage and have right of way over building No.41/3. The present plaintiff No.1 who was defendant No.1 filed his written statement in that suit on 12-7-1949, denying completely the claim of Fazal Bhoy. Fazal Bhoy, however, withdrew the above suit unconditionally, and later on sold his right, title, and interest in property No.41/1 to the present defendants on or about 8-1-1952. The plaintiff No.1 gave notice, dated 25-5-1976 to the defendants asking them to refrain from using the passage over property No.41/3 and upon refusal by the defendants filed the present suit. The defendants in their writter statement denied the claim of plaintiff No.1 and asserted that they are entitled to use the passage of plot No.41/3 for the purposes of ingress and egress to the rear portion of their building. It is claimed by the defendants that the building on plot No.41/3 is so constructed that the only passage to the rear portion of building No.41/1 is through open space of building No.41/3. On the basis of the controversy between the parties the Court framed the following issues on 23rd February, 1970:- "(1) Whether the Plot No.41 did not have three well demarcated separate and totally independent buildings since 1912 when it was owned by Mohammadali Adamji exclusively? (2) Whether the Karachi Municipal Corporation and/or the competent authorities did not sub-divide plot No.41 into three independent/ separate plots as Nos. 41/1, 41/2 and 41/3? (3) Whether the plot No.41 was sub-divided in three sub-plots with inter-connections. If so, what was the basis and nature of these inter-connections? (4) What was the effect when Basantram S.Motwani closed or tried to close the gap between plots Nos.41/2 and 41/3 in 1944? (5) What was the reason and effect of Fazalbhoy making an application under Order I, rule 10 in suit No.137 of 1945 and upon dismissal of the application, filing a suit, No.85 of 1948 in the Sind Chief Court against the plaintiff? (6) Whether the defendant and/or their predecessors-in-title continuously, uninterruptedly and without let or hinderance used the passage of plaintiff's property No.41/3, or ingress and egress. If so, to what effect? (7) Whether the defendants or any of them has any right of user of the passage of plaintiff's plot No.41/3. If so, whether such right is sustainable in law? (8) Whether the defendants and/or their predecessors-in-title raised in their passage or outlet to Campbell Street, artificial unauthorised and temporary obstructions/walls to convert them into godown. If so, to what effect? (9) Whether in or about December, 1968/January, 1969 the defendants dispossessed the tenants from the godowns in their said passage and obtained possession thereof. If so, what is the effect? (10) Whether the suit is over-valued. (11) Whether the plaintiff is estopped from depriving the defendants of the right to use the passage on Plot No.41/3? (12) Whether the defendanis have been using the disputed passage since 1952 continuously and without interruption? (13) To what relief is the plaintiff entitled?" The plaintiff in support of his claim has examined one Badaruddin son of Nazar All and closed his side. The defendant had examined Fakhruddin son of Saleh Bhoy, one of the defendants, in support of their case. Besides the above oral evidence the parties have produced documentary evidence by consent which is Exh.5 to Exh.20. I may mention here that at the hearing of the case learned counsel for parties did not address on the issues framed in the suit. The defendants mainly contended that they have acquired a right of easement by prescription to use the open space in building No.41/3 to go over to the rear portion of their building 41/1 while the plaintiff's main contention is that in view of the agreement, dated 12/1940 and previous litigation between the parties and orders of Court passed thereon, the defendants cannot claim right of easement by prescription.I may also mention, here that at the time of institution of present suit the second appeal against the decree in Suit No.137 of 1945 was pending in this Court which succeeded but on appeal the Supreme Court reversed the judgment in Second Appeal and restored the judgment and decree passed by the A.D.J. I have accordingly re-framed the issues in the suit as follows:- (1) Whether the defendants have acquired a right or easement over the alleged servient heritage namely 41/3 to pass through the passage of that building in order to reach the rear portion of building 41/1 owned by the defendants, by prescription? (2) What is the effect of final decision in Suit No.137 of 1945, dismissal of application under Order I, rule 10, C.P.C. filed by Fazal Bhoy in Suit No. 137 of 1945 and institution and withdrawal of Suit No.85 of 1948 by Fazal Bhoy on the rights claimed by the defendants? (3) Whether the plaintiff is estopped from depriving the defendants on the right to use the passage of building No.41/3. (4) To what relief if, any, the plaintiffs are entitled? My findings on the above issues are as follows:- ISSUES- Nos.]: and 2.

Both these issues are interconnected and therefore I will deal with them simultaneously. The defendants in support of their claim have examined Fakhruddin one of the co-owners. He stated in his evidence that building No.41/1 was purchased in the year 1952 and at the time he purchased the above property the front portion of building was occupied by the previous owners while in the rear portion there were tenants. The previous owners gave vacant possession of only that portion which was in his possession, which was occupied by the defendants. The tenants in the rear portion of building used to pass through the passage of building Nos.41/2 and 41/3 to go over to their premises from Campbell Street. This position also existed prior to the purchase of the property by defendants. After purchase of the property by the defendants no one ever objected to the use of these passages of properties Nos.41/2 and 41/3, by the tenants of the building No.41/1 who occupied the rear portion. The previous owner of building No.41/3 did not file any case against defendants or against the previous owner of the property. The suit instituted by Fazal Bhoy was withdrawn as nobody was objecting to the use of the passage on property No.41/3 for going to the rear portion of property No.41/1. In cross-examination he stated that so far he re-collected the right of easement over building Nos.41/2 and 41/3 was mentioned in the agreement of sale, as well as in the final sale-deed, but admitted that he neither produced the agreement of sale nor the sale-deed in Court. He denied the suggestion that he did not produce these documents because there is no stipulation in these documents with regard to easement rights. He admitted that according to entries in record of rights property No.41, devolved on 3 persons by partition. He was shown the agreement, dated 12th April 1940 (Exh.11) between three sons of Late Mohammadali and statement made by them before City Deputy Collector (Exh.12), and he admitted that he was aware of these documents at the time of sale. However, with regard to sanction letter of K.M.C. (Exh.5) he stated that he could not say if his father who conducted the transactions of purchase was aware of it at the time of sale but further stated that he is now aware of it. He also admitted that he was informed by the seller about proceedings of Suit No. 137 of 1945. He denied the suggestion that the proceedings in the present suit were kept in abeyance because of pendency of an appeal before the Supreme Court in respect of the dispute between the owners of buildings Nos.41/2 and 41/3. He admitted that there is main passage to building No.41/1 from Campbell Street but stated that this main passage at present is open only upto front building and stops immediately before the second building as it is blocked by construction. He also admitted that if front and rear gates of the shops which blocked the passage are kept open it can serve as a passage upto rear most portion of the building. He admitted that Exh.5/1 is approved plan of K.M.C. but denied that the shops which blocked the passage are unauthorised construction. He stated that at the time he purchased the building these shops were in existance and claimed that these shops are shown in the plan Exh.5/1. He was shown Exh.13, a copy of the Judgment of Supreme Court and after seeing it he said that he now became aware, of it. He further stated that he was not aware if the owner of plot No.41/3 attempted to construction wall in the year 1945 but he became aware of the litigation after he purchased the property. He denied the suggestion that he was allowed to use passage of plot No.41/3 as a licensee by owner of that building. The plaintiff in his evidence stated that originally there were one building namely 41 which was sub-divided in three different plots namely 41/1, 41/2 and 41/3 and each sub-divided portion had separate building. That on or about 12-4-1940 there was a family arrangement between the owners of 3 sub-divided portions of the building and accordingly a sub-division plan was approved by the K.M.C. He stated that the three owners of sub-divided buildings had agreed to by separate drainge, or to install separate or joint water connection or to put up partition wall between sub-divided portions to close up the open space. He produced Exhs. 11,.12 and Exhs.5 and 5/1. He stated that at the time the present plaintiffs purchase the property, proceedings were pending between Basant Ram and Tahir Bhoy in the Supreme Court. He stated that he was aware that Basant Ram had filed a suit for injunction to restrain the owner of plot No.41/2 and their tenant from using plot No.41/3 as passage. He also stated that final decision of the Supreme Court in that case is that the tenants of adjoining plot No.41/2 are not entitled to use plot No.41/3 by way of passage. He produced a copy of application made by Fazal Bhoy in suit No.137/1945 and the orders of the Court passed thereon as Exh.14. He also produced certified copies of plaint in Suit No.85 of 1948 and the written statement filed by plaintiff No.1 in that suit, as Exhs.16 and

17. He also produced the certified copy of order of Court allowing withdrawal of suit No.85/48 as Exh.18. He produced the correspondence exchanged between the previous owner of plot No.41/3 and the present defendants as Exhs.7 to

9. He stated that in spite of protests of plaintiffs the defendants did not stop using plot No.41/3 for ingress or egress to their building No.41/1, therefore, the present suit was filed. He stated that he has seen all the three properties and each one has independent gate opening on the main Campbell Street. He stated that the owners of building No.41/2 constructed a Godown blocking the main gate of second building No.41/2, and Supreme Court in its judgment has directed the owner of building No.41/2 to open the passage from the said gate. He stated that occupants of Plot No.41/1 are in no way obstructed from ingress or egress from Campbell Street. In cross-examination in reply to a suggestion he denied that three buildings constructed on plot No.41 are behind one another. He stated that these buildings are side by side. He admitted that since 1940 when the original plot No.41 was sub-divided the tenant occupying different tentaments in rear portion of three sub-divided properties has been using the passage of building owned by the plaintiff. It is quite clear from the above evidence that the persons occupying the rear portions of building No.41/1 used the passage for going over to their premises through plot/building No.41/3. The question which, however, arises in the present circumstances is whether this use of passasge of building No.41/3 by the occupants of building No.41/1 was such which could create a right of easement in their favour by prescription. It is an admitted position that originally building No.41, was owned by Late Mohammadali and, therefore, there could not be any question of any right of easement until such time it was owned by him. It is also an admitted position that on the demise of said Mohammadali the building devolved on his three sons namely Fazal Bhoy, Tahir Bhoy and Ibrahimjee. These three brothers entered into an agreement on 12th April, 1940 which has the effect of dividing the original construction or plot No.41 into three separate buildings, namely 41/1, 41/2 and 41/3 and each one of them separately possessed and owned one of these sub-divided buildings. Paragraph 2 of the above agreement which provides for making each sub-devided portion as self-contained unit reads as under:- "

2. That if for the purpose of making sub-divisions self-contained and or meeting the requirement necessary for the sub-divisions being sanctioned by the Municipal and Government authorities or even otherwise it becomes necessary to lay any separate drainages connections, instal any separate or joint water connections pipes or pumps or to put up partition walls between one sub-division and another or close up the open passages or carry on any other item of work for the said purpose, the same will be done and carried out on the joint expenses of the parties, each being liable to pay one-third share of such expense." A reading of the above paragraph in the agreement will show that for the purposes of making each sub-divided building self-contained the parties were required to lay separate drainage connection, install separate or joint water connection, pipes or pumps and put up partition walls between the sub-divided portions and close up the open passage or carry on any other works for the said purposes at the joint expenses of parties. This agreement did not envisaged use of passage of building No.41/3 as common access to all the three owners of adjoining buildings to their respective rear portions. The sub-division plan approved by K.M.0 on 8-6-1940 in pursuance of the bove agreement also shows that each one of these three buildings have enterances from main Campbell Street and passages goes right upto the end of each building. The case of the plaintiff is that after purchase of building No.41/3 by Basantram Motwani, the purchaser attempted to close the gap between buildings Nos.41/3 and 41/2 which led to a dispute and filing of Suit No.137/45 by Basantram against the owner of adjoining building No.41/2 which finally ended by a judgment of Supreme Court dated 20-5-1981 (Exh.13). In these circumstances it is contended that if the tenants of plot No.41/2 or 41/1 continued to use the passage of building No.41/3 during the pendency of litigation it could not give rise to any right of easement in their favour. It is also contended by the plaintiff that the owner of plot No.41/1 Fazal Bhoy (predecessor-in-title of the present defendants) made an application under Order I, rule 10 for being joined as a party in Suit No.134/45 claiming that he has right of passage over plot No.41/3 in the same manner as was claimed by defendants in that suit and that if the plaintiff succeeded in his right will be equally affected and accordingly prayed that he may also be joined as defendant in the suit. This application was rejected by the Court and upon rejection of application, Fazal Bhoy instituted Suit No.85/1948 in which he sought a declaration that he and his tenants are entitled to use passage over building No.41/3 and also claimed injunction against plaintiff No.1 restraining him from closing the said passage. The defendant No.1 (Present plaintiff No.1) in that suit denied the claim of Fazal Bhoy regarding right of way over plot No.41/3 and asserted that he had right to put up partition walls. The said Fazal Bhoy, however, withdrew his suit unconditionally. It is, therefore, cont ended that Fazal Bhoy having abondoned his claim in Suit No.85/1948 his successor could not now claim the same right. The learned counsel for the defendant on the other hand contended that the present defendant or their prodecessor-in-title not being parties to suit No.137/1945 are not bound by the decision in that suit. It is also contended that withdrawal of suit No.85/1948 by Fazal Bhoy could not affect the rights of present defendants as that suit was withdrawn by the said Fazal Bhoy because there was no obstruction to his right to use the passage of building No.41/3 by the predecessor-in-title of the plaintiff. After hearing the learned counsel for the parties at length I am of the view that contentions of the learned counsel for the plaintiff has great force. It is not disputed that occupants of building No.41/1 in order to reach the rear portion of that building has to pass through the passages of both buildings Nos.41/3 and 41/2. It is also not disputed that if the owner of building No.41/3 succeeds in closing the gap between building Nos.41/3 and 41/2, the right of entry claimed by occupants of building No.41/1 will be obstructed. It is, therefore, quite clear that precisely for these reasons Fazal Bhoy, the predecessor in-title of present defendants, instituted suit No.85 of 1948 in which he made following allegations in pares. 9 to 11:- "

9. The defendant No.1 and his predecessor-in-title have been wrongfully denying the right of the plaintiff and the defendant No.2 and their tenants to use the said passage on plot No.41/3 S.R.7 for the purpose of ingress and egrees to the back portions of their respective plots and have been in turn threatening to close the said passage.

10. The defendant No.1's predecessor-in-title Basantram as stated above has filed the Suit No.137 of 45 for declaration that the defendant No.2 has by himself or by or through his tenants no right of passage of entrance and or exist over plot Nos.41/3 and that the plaintiff in that suit has a right to put up a partition wall on his portion so as to close the passage. He has also prayed for injunction, restraining defendant No.2 and or his tenants from using the said passage.

11. It is submitted that if the defendant No.1 close the said passage, the plaintiff's right of using the said passage as stated above will be impaired." The above allegations were replied by plaintiff No.1 who was defendant No.1 in the suit, in his written statement as follows:- "

8. Re. para. 9 it is submitted that this defendant and his predecessor have been rightly denying the right of the plaintiff and/or defendant 2 and/or their tenants to use the passage referred to in this para. for the purposes alleged. The plaintiff and/or defendant 2 and/or their tenants have no rights of whatever nature over the passage on plot No.41/3 Sheet S.R .7 Serai Quarter Karachi.

9. Re. para. 10, the suit filed by this defendant's predecessor speaks for itself.

10. Re. para. 11 the defendant submits that as the plaintiff and/or defendant 2 have no right of using the passage referred to, the defendant is entitled to close the said passage." From the above discussed evidence it is quite clear that the plaintiffs and their predecessor-in-title always disputed the right of defendants and their predecessor-in-title to use the open space of building No.41/3 as a passage for going over to the rear portion of building No.41/1. It is also established that the predecessor-in-title of defendants when asserted the above right of easement over property No.41/3 in suit No.85/1948, it was strongly refuted by plaintiff No.1 but instead of contesting and estblishing the same, the defendants predecessor-in-title withdrew the suit unconditionally which in these circumstances, in my opinion, amounted to abondonment of the above claim. Apart from it the right of plaintiff to construct partition wall on plot No.41/3 in order to close the access through open space of plot No.41/3 for going over to rear portions of adjoining buildings was subject of adjudication from 1945 to 1981 in a Civil Suit and was finally decided by the Supreme Court on 20-5-1981 when it was held that the owner of plot No.41/3 has the right to close the gaps by constructing B partition walls on plot No.41/3 to prevent access through the open space on their property. Therefore, during the period from 1945 to 1981 when the matter was pending in the Court mere user of open space as an access to the rear portion of building by the tenants of building No.41/1 could not create any right of easement by prescription in favour of defendants. It is well-established that in order to acquire a right of way as an easement or any other easement right by prescription it must be shown that such right has been enjoyed actually, openly, peaceably, without interreption by any person claiming title thereto as an easement and as of right for twenty years. In the present case it cannot be said that use of open space over property No.41/3 by the tenants of property No.41/1 was peaceable and for twenty years as this right was first disputed in the year 1945 when the plaintiff, predecessor-in-title attempted to close the gaps on property No.41/3 which was used as passage to go over to the rear portion of buildings on plots Nos.41/1 and 41/2. Again the predecessor in title of defendants asserted this right of easement in 1948 when he filed suit No.85 of 1948 on 28-2-1948. The plaintiff's predecessor-in-title once again deni ed this right when he filed his written statement on 12-7-1949. Suit No.85/1948 was unconditionally withdrawn on 21-7-1949 after filing of written statement by the predecessor-in-title of present plaintiff. The present suit was filed by the plaintiff on 30-5-1969. In these circum stances neither the enjoyment of right of way claimed by the defendants could be described as peaceable nor it was for twenty years, so as to create an easement right in their favour. I may also mention here that the defendant in their evidence asserted that the easement right claimed by them are also mentioned in the agreement of sale, and the sale-deed executed in their favour, but in spite of the suggestion in the cross-examination by the plaintiff's counsel that no such stipulation existed either in the agreement of sale or in the sale-deed these documents were not produced. In these circumstances, an adverse inference has to be drawn against the defendants that these documents did not contain any stipulation regarding the easement rights claimed by the defendants. Mr.Ibrahim Pishori, the learned counsel for the defendant relied on the case of Ram Sarup v. Abdul Haq A I R 1931 Lah . 395 to contend that mere denial of the right of defendants by the plaintiff to use the open space over plot No.41/3 without actually, and physically preventing the defendants from using the same was not enough to establish that the enjoyment of right by defendant was not peaceable. Without expressing any opinion as to the correctness or otherwise of the view taken in that case, it is enough to say that the above cited case had its own peculiar facts. In that case seven doors and two Parnalas were found to be in existence since 1900 and the owner of the servient heritage attempted to obstruct the use of same in 1921 by constructing a wall. Prior to construction of wall in 1921 the owner of survient heritage had also instituted a suit in 1916 for mandatory injunction for closure of doors and Parnalas but the suit was dismissed on the ground that the owner of survient heritage had acquisced in the existance of doors and Parnalas for many years. It was in these circumstances held by the Court in that case, that until construction of wall in 1921 the owner of dominant heritage had successfully used peaceably the easement right without interruption for 20 years. These facts have no applications in the present case. I, therefore,decide issue No.1 in the negative. My finding on Issue No.2 is that because of proceedings of Suit No.137 of 1945 and Suit No.85 of 1948, the enjoyment of right of way by the defendants over property No.41/3 could not be treated as peaceable and for twenty years so as to confer right of easement in favour of defendants. Issue No.3. The burden proving this issue is on the defendants. I have already found under issue Nos.1 and 2 that the plaintiff first objected to the use of passage over property No.41/3 when their predecessor-in-title instituted Suit No.137 of 1945. Thereafter the matter was under adjudication in different courts until 1981 when the Supreme Court of Pakistan decided it finally. The defendants are unable to show as to how the plaintiff in these circumstances are estopped from denying the right of defendants to use the passage of property No.41/3. This issue is accordingly decided in the negative. Issue No.4. As a result of above discussion I decree the suit of plaintiffs for permanent injunction and restrain the defendants and all persons acting through or under them or deriving title under them from using the open space of property No.41/3 as passage for access to the rear portion of building on plot No.41/1. I will, however, make no order as to costs. M.B.A. Suit decreed.