P L D 1954 Peshawar 80 (PLP)

MUHAMMAD SHAFI, J.‑Hazrat Gul instituted a suit against Abdul Ghafoor and ten others, for a declaration that he and defendant No. 11 had a right of way from Idak Road to their Serai, standing 'on Khasra Nos. 3138, 3139 and 3170, the width of which was 11 feet, and was shown on the plan attached with the plaint as Alif, Bey, Jim, Dal, and that defendants No. 1‑‑10, should be prevented from interfering with that right. Defendant No. 11, however, was transposed as plaintiff its the case because he was one of the owners of the Serai. The defendants mentioned above contested the suit. The following issues were framed in the case :‑ (1) Whether plaintiffs are entitled to the use of Alif, Bey, Jim, Dal area marked in the plan attached to the, plait as a path for the Serai ? (2) Whether plaintiffs have got paths for their Serai towards its South and West ? (3) Relief. The suit was dismissed on 10th November 1951. There was an appeal against this decree, which was accepted by the. Senior Sub‑Judge Kohat, on 16th February 1952. Five issues were framed in the case, and the case was remanded under section 151 C. P. C. to the trial Court for trial de novo The issues were as follows :‑ (1) Whether the passage‑ indicated by point Alif, Bey, Jim, Dal 11 feet in width' is situated in Khasra No. 5938/ 3.165, if 'so what is its effect on the suit ? (3) Whether plaintiffs can, use some other passage for ingress and egress to their Serai to Idak Thall Road? (4) Whether obstruction has been made by the defendants on their own lands ? (5) Whether plaintiffs are entitled to perpetual injunction as prayed for ? Fresh evidence was recorded, and the learned trial Judge by his judgment dated 4th October 1952, once again dismissed the suit of the plaintiffs with costs. According to him issue No. 1 did not arise, because the parties were in agreement that their 'contest was over the path Khasra No. 5938/3165. Issue No. 2 was decided against the plaintiffs. Issue No. 3 was held to be unproved. On issue No. 4. the trial Judge held that the obstruction was not entirely on defendants' own land, but on a portion of Shamilat as well. Issue No. 5 was not pressed. There were three other issues in the case, which appear to have been framed after the remand by the learned trial Judge, and they were as under :‑

6. Is the suit within time ?

7. Whether all the owners of Thall Isaf and Said Amin were necessary parties

8. Whether plaintiffs' conduct estopped them from the present suit. Issue No. 6 was not discussed in the judgment at all. On issue No. 7 it was held that the other co‑sharers were not necessary parties: On issue No. 8 the learned trial judge opined that section 115 of the Pakistan Evidence Act was a bar and estopped the plaintiffs from the present suit. There was an appeal against this decree, which was accepted by the learned Senior Sub‑Judge Kohat, who granted the decree prayed for in favour of the plaintiffs, but subject to the condition that they must remove any obstruction that might exist on their part of Khasra No. 5938/3165. Defendants Nos. 1‑10 have come up in revision to this Court, and the only point which has been argued before me is, whether the plaintiffs had any right of way as claimed by them in the plaint. The facts, which are .admitted by both the parties, are that originally Khasra Nos. 3170; 3138 and 3139 belonging to the plaintiffs and Khasra Nos. 3171 and 5936/3137 belonging to the defendants as well as other lands situated in the vicinity of these lands were culturable. Khasra No. 5938/3165 was the channel which irrigated all these lands. The width of this channel throughout according to the Patwari was 11 feet. So far as the parties' lands were concerned, Khasra Nos. 3170 and 3171 were situated towards the north of this channel, and Khasra Nos. 3139, 3138 and 3137 towards its south. Since about 26‑30 years all these lands became barren; and the water‑channel consequently also ceased to exist as such. The plaintiffs constructed a. Serai on the three Khasra numbers belonging to them, with the result that the channel which passed in between their three Khasra numbers now passed through the Serai. The main gate of the Serai was towards the east, and in order to reach the Idak Road, which is situated in that direction, the plaintiffs had to use the dried up channel, which passed in between Khasra Nos., 3171 and 3137 belonging to defendants Nos. 1‑

10. For some time the defendants tolerated it, but then they put a wall on this way, and prevented the plaintiffs from using it as a thoroughfare. The plaintiffs instituted a suit and claimed that the dried up channel was a village Shamilat and had been used as a thoroughfare, since about 26‑30 years, and that the defendants had no right to put any obstruction on it. The defendants, on the other hand, denied that it was a water‑channel or that even if it was so it could be used as a thoroughfare. They asserted that the water‑channel being the common property of the village, was liable to he partitioned, and each co‑sharer had a right to use that portion of it, which was in his possession. to the exclusion of all other co‑sharers, and as that portion of the dried up channel, which the plaintiffs now claimed was a thoroughfare was in their possession as co‑sharers, they had every right to stop the plaintiffs from using it, and thus maintain their possession on it, in particular then the plaintiffs were also in possession of that part of the dried up channel which passed through their Serai. It has been proved from the statement of the Patwari that Khasra No. 5938/3165 was originally a channel, which fell into disuse since about 26‑30 years. This being the case, the question to determine is whether a co‑sharer in the village can claim the same right on the dried up channel as he can claim on other Shamilat lands, which are either barren or culturable. In the village society there is always a Shamilat ‑land, which the co-sharers use either with the consent of the other co‑sharers or by reason of the fact that they make the land culturable or reclaim it, or make some other improvement upon it. There are, however, some portions of the sites in all villages which are set apart for public use. These sites are by the common consent devoted to be used for mosques, graveyards, tanks, necessary public ways and water‑channels. The sites which are used for this purpose, in my view, cannot be claimed by any co‑sharer, to be distributed amongst the different proprietors of the village. The sites in the village which are used for the purpose mentioned above must continue to be used as such and no person, not even a member of the proprietary body of the village, has got a right to claim or possess it to the exclusion of the rest of the village inhabitants. The water‑channel in question consequently although it ceased to be a water‑channel must continue to be set apart for public use. The defendants have absolutely no right to put any obstruc tion on it. The mere, fact that the plaintiff's have included a part of this water‑channel in their Serai would not entitle the defendants to do the same. In fact the learned lower appellate Court has acted very wisely in ordering that the plaintiffs should be granted a decree subject to the condition that they should remove all obstructions, on the dried up channel which passed through their Serai. The decision of the learned lower appellate Court is, thus, well founded, and must be maintained. The revision petition is dismissed with costs. Order announced. A. H. Petition dismissed.