1988 PLP 1669 (MLD)

The facts necessary for the disposal of this second appeal are that Said Ahmad, appellant, filed a suit against the respondents for a declaration that he was co‑owner in the site in dispute and had a right to run a water channel across that site in order to irrigate his lands. It was further asserted that the defendants respondents had by raising construction over the site in question unauthorisedly obstructed flow of water through the channel allegedly existing at the site. A permanent injunction against the respondents enjoining upon them to remove the obstruction and to keep the site vacant was also sought. The respondents contested the suit and the learned trial Court after framing necessary issues, recorded the evidence and decreed the suit vide judgment and decree dated 14‑5 1965. The appeal filed by the respondents was, however, accepted by the learned District Judge, Sialkot, vide judgment and decree dated 17‑12‑1965 which was then assailed by filing the present appeal.

2. The learned trial Court held the appellant to be a co‑sharer in the land in dispute on the ground that he was a proprietor in the village. The learned appellate Court, however, held that on the basis of ownership of a few fields in the village it does not necessarily follow that the appellant‑plaintiff was also a co sharer of every inch in the village Abadi.

3. Learned counsel appearing for the appellant before me accepted the aforesaid finding as correct. He, however, argued that being a proprietor in the village the appellant‑plaintiff had the right to use the site of village Abadi for taking water of the wells to his land and that in fact a water channel existed which was blocked by the respondents by raising construction thereon He further argued that the site in question was not an evacuee property but was a site within the village Abadi and though the appellant was not successful in establishing his right of easement by necessity yet as one of the proprietary body of the village he 6 entitled to enjoy a quasi right of easement qua the site as is contemplated under clause (f) of section 13 Easements Act, 1882. Reliance was placed on Pakala Venkanna and others v. Sri Rao Swetachalapati A I R 1931 P C 128, Chhatarmal and others v. Jugul Kishore and another A I R 1930 All. 313(1), and Hassan Din v. Abdul Jabbar and others P L D 1952 Lah.

411. In the Lahore case it was held that the water flowing through an artificial channel may give rise to an "apparent" and "continuous" easement which is necessary for enjoying the share as it was enjoyed when the partition of a plot of land took effect. The suit was remanded for recording a finding as to whether the severance of the unitary estate gave rise to a quasi easement of the character contemplated by clause (f) of section 13 of the Easements Act. In the Privy Council judgment it was, inter alia, observed that a prescriptive right to water in the case of first crop would go far to support a similar right to the case of the second crop. In the Allahabad case it was observed that if flow across intervening field is necessary for the field in question as also irrigated before partition, then a party has a right of easement. In my view, none of the cases cited by the learned counsel for the appellant applies to the instant case. In this connection, it is pertinent to repeat the observation made by the learned District Judge in the impugned judgment. He observed that "it was the duty of the plaintiff to prove to the hilt by showing relative position of his fields that he required a watercourse by necessity to run through the plot in dispute. The evidence shows that the plaintiff has failed to discharge this onus. The oral evidence adduced by him has been satisfactorily rebutted by the defendants". Moreover, it is in the evidence that four and a half marlas out of the site in dispute was allotted to the respondents and further it was admitted by the appellant while appearing as P.W.3 that before the consolidation his lands had concern with well on the western side but have no concern now since after consolidation. The well on the western side is in field No. 231 and after consolidation the land allocated to the appellant falls on the other well. Moreover, for invoking even quasi easement under clause (1) of section 13 of the Act, it has to be established that the easement was not only apparent and continuous but also necessary for enjoying the share as it was enjoyed when the partition took place. The finding on this question of fact is against the appellant and, as such, no right can be claimed even under the af6resaid provision.

4. I have also gone through the documentary evidence on record but from these documents nothing can be said about the character of the site in question which admittedly is situated within the village Abadi, The respondents have, however, produced permit (Ev. D.1) issued by the Rehabilitation Authorities which shows that at least the four and a half Marlas on which construction has been raised was evacuee property as otherwise the same could not have been allotted. The allotment so made does not appear to have been challenged by the appellant. In these circumstances, the appellant cannot be said to have established any right of casement by necessity or even a quasi easement. No justification, therefore, appears for interference in tire findings recorded by the learned District Judge. The appeal, therefore, fails and is dismissed. There shall be, however, no order as to costs as none appeared on behalf of the respondents to contest the appeal. MA.K./2969/L Appeal dismissed.