1999 PLP 935 (MLD)

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been directed against the judgment and decree of the High Court dated 22-2-1997, whereby the concurrent findings of the Courts below were set aside and the appeal filed by the respondent was accepted and the suit for perpetual injunction of the appellant was dismissed.

2. The brief facts of the case are that Muhammad Malik, plaintiff appellant, filed a suit in the Court of Sub-Judge. Mirpur. Alleging that he had been using the path shown as 'ب' and 'ج' in site plan appended with the plaint was in his continuous use for the last 50 years and, thus, he has acquired right of easement by prescription but the defendant-respondent was forcibly obstructing his passage by the path. After framing necessary issues, the trial Court decreed the suit of plaintiff-appellant. The appeal filed by the respondent to the District Judge was also dismissed. However, the second appeal filed to the High Court by the defendant was accepted and the findings of the Courts below were set aside on the ground that the plaintiff-appellant could not prove the continuous use of the path for more than 20 years as required under law.

3. We have heard the arguments and perused the file. It has been contended by Ch. Muhammad Azam, Advocate, the learned counsel for the appellant, that the High Court has committed an error in vacating the concurrent findings of the Courts below. He has argued that the plaintiff-appellant has examined three witnesses in support of his case and got his own statement recorded as witnesses, whereas the defendant-respondent did not lead any evidence in rebuttal. The learned counsel has argued that the High Court has vacated the concurrent findings of the Courts below on artificial grounds without properly appreciating the evidence and points in controversy. The learned counsel has argued that in fact the High Court has misread the 'record and not the trial Court and the first Appellate Court. He has argued that even if we leave the statements of Pervaiz Akhtar and Allah Ditta, the witnesses for the plaintiff, the case of the plaintiff-appellant is fully established by the statement of Lal Hussain and the statement of Muhammad Malik, plaintiff-appellant, in view of the respective stands taken by the parties. The learned counsel has argued that the averments made in the plaint to the effect that the plaintiff-appellant has been in use of the path in question since the times of his ancestors, has not been denied by the respondent in terms that he had not been in use of the path for more than 20 years, the necessary period of maturing the right of easement, rather the case of the respondent was that the plaintiff-appellant has been using the path as a licensee meaning thereby that he has been using the path for more than twenty years but with the permission of the respondent and not as of right. The learned counsel has argued that the High Court, by relying upon the authority of this Court and some other authorities from Indian jurisdiction, has held that in the circumstances of the case in hand, a plaintiff would be deemed to have been using the path not as of right until and unless contrary proved by the defendants. The learned counsel has argued that no question was directed in cross-examination to Lal Hussain or Muhammad Malik that the path had been used for a period less than 20 years. So mush so that the defendant-respondent did not lead evidence and even declined to get his statement recorded as a witness. The learned counsel has argued that the High Court has committed an error while expressing the view that as Lal Hussain has been residing in Pakistan, his statement was devoid of evidentiary value. It has been contended that the age of the witness is 60 years and he has stated in cross-examination that he has been living in Pakistan for the last ten years; when it is not the case of the defendant that the appellant had stopped using the path at any stage, it cannot be said that the statements of witness has no value. Similarly, the learned counsel has argued that the High Court has also failed to consider the statement of Muhammad Malik in true perspective because according to the High Court, the witness has stated before the trial Court that the house to which the path is related was constructed 14/15 years prior to making the statement by the witness, but the High Court failed to take note of that part of the statement wherein the witness has stated that prior to the construction of new house, there was an old house.

4. In reply, Raja Muhammad Siddque Khan, Advocate, the learned counsel for the respondent, has argued that the phraseology used by the appellant in his statement that he has been in possession of the house since the time of his 'fore-fathers' is ambiguous and, thus, it cannot be interpreted to mean that he has been using the path in question for more than 20 years. The learned counsel for the respondents has argued that the mere statement of Muhammad Malik would not prove the case, because the onus of proof of the issues was on him.

5. We have given due consideration to the arguments raised at the bar. It is amply clear that even if we leave aside the statements of Allah Ditta and Pervaiz Akhtar, the two witnesses of the plaintiff-appellant, the fact remains that the onus of issues stands amply discharged by the statements of Lal Hussain and Muhammad Malik plaintiff-appellant, especially so when there is no evidence in rebuttal and in view of the fact that in the written statement, the span of period of use of path in question is not disputed rather the case of the defendant respondent was that the plaintiff has been using the path in question as licensee which has not been proved. The question as to whether, the plaintiff-appellant has been using the path in question as of right has been amply dealt with by the High Court and we see no reason to disagree with the view that if a plaintiff proves that he has been using a path for a considerable time, i.e., more than 20 years, it would be presumed that he was using it not as licensee but in his own right until and unless such presumption is rebutted by the opposite Party. In the light of what has been stated above, set aside the judgment and decree of the High Court and restore that of the trial Court. Hence the appeal is hereby accepted with costs as indicated above. C.M.A./264/SC(AJ&K) Appeal accepted.