Easement

2017 PLD 14 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 12 & 15Specific Relief Act (I of 1877), Ss.42 & 54Civil Procedure Code (V of 1908), O.I, R.10 & OXXVI, Rr.9 & 10EasementRight of wayBurden of proofClaim of easement of necessityScopeNecessary parties to claim of easementReport of Local CommissionEvidentiary valueAvailability of alternate access wayEffect

Plaintiff filed suit for declaration and perpetual injunction claiming to be owner on suit property which was shamilat deh and seeking that defendant be restrained from raising construction on path which was being used by him for more than fifty years

Trial Court decreed the suit but appellate court dismissed the same

Validity

Both parties had admittedly constructed their houses on suit property/shamilat deh

As per statement of witness, there were more than one access paths to the house of plaintiff

Plaintiff alleged that there was no access to his house other than disputed path, but no cogent and independent evidence was produced to that effect

Plaintiff did not produce any person of locality to support his claim and based the same on his own statement

Plaintiff in plaint gave disputed path on northern side of his house, but bailiff after inspection of spot stated the same to be on eastern side

Plaintiff had no prerogative to claim easement of passage on ground of convenience

Easement was always claimed on property owned by others which was not the case of plaintiffs

Easement of necessity was not to be allowed at wish and whims of plaintiffs if another alternate access was available though inconvenient

No claim could be entertained for easement of passage on choice of plaintiff

Mere use of path through passing property would not bestow any right upon claimant and owner of property at any stage had right to restrain claimant from using the same

All owners of suit property, who had constructed their houses on shamilat deh, were not arrayed as party

Huge property of shamilat was in possession of all owners and there were numerous access paths to the same

Plea of plaintiff that path leading to his house had been blocked by raising wall was not proved by cogent evidence

Burden of proof was on plaintiff that he had right to disputed path to the exclusion of other owners including defendants

Mere opinion of Local Commission being not binding on court would not bestow any right upon plaintiff to claim ownership and use all paths to the exclusion of others

Present was not a case of private ownership rather pertained to shamilat deh wherein all owners were necessary parties and in their absence no effective decree could be passed regarding ownership and possessory rights

Finding of appellate court were not based on true appreciation of evidence and correct appreciation of the law

Plaintiff had to stand on his own legs and could not be given benefit of weaknesses of defence

High Court allowing revision petition set aside impugned judgment and decree and dismissed the suit.

2013 PLD 60 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Easement rightPublic road and Government landErection of wall on such road/land for security purposes by owners of adjoining propertiesValidity

Such wall could not be erected on such road/land, rather such owners for ensuring their safety ought to erect wall on their own land.

2001 YLR 1806 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Art. 199Educational institutionAdmission in medical collegeConstitutional jurisdiction, exercise of

Petitioner and one of the respondents applied for admission to first year M.B.B.S., in medical college against the reserved seats of District concerned

On objection of petitioner that the respondent was not local resident of District concerned, local certificate of respondent was cancelled by the Authority and petitioner being the next candidate standing on merit list, was granted admission in the college

High Court on filing Constitutional petition against order of the Authority remanded case for considering the cases of both the petitioner and respondent on merits

Authority, according to Admission Policy granted admission to respondent who stood higher on merit as compared to the petitioner

Validity

Respondent was rightly granted admission on merits according to the Admission Policy of the college

Contention that the petitioner having already attended the classes for a couple of months, High Court could make observation that he could be allowed to continue his . studies on equitable considerations, was repelled

High Court while exercising its Constitutional jurisdiction could not increase/decrease number of the seats allocated for each District for admission in M. B., B. S., first year on merits on humanitarian grounds and against the express provisions of the Admission Policy

Since the petitioner did not stand on merits as against the respondent his attending classes for two months would not create any right in his favour to enable him to continue studying in the college against a seat which did not exist.

2000 SCMR 1823 SUPREME-COURT Judicial Precedent

Easement Right of easement of light and airInjunction, grant ofConditions

Held, even though a right of easement of light and air was established, a person was not entitled to an injunction unless the disturbance of his easement appreciably and materially affected his enjoyment of the building in respect of which the easement was claimed.

1999 MLD 935 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

EasementEasement by prescriptionProof

If plaintiff proved that he had been using a path for a considerable time i.e. more than 20 years, it would be presumed that he was using that not as licensee but in his own right unless such presumption was rebutted.

1997 CLC 349 PESHAWAR-HIGH-COURT Judicial Precedent

Easement Right of"Thoroughfare" and , "private path"Distinction

'Thoroughfare' which happened to be a Shamilat was used and enjoyed by every person of village irrespective of fact whether he was owner thereof or not and a person if recorded its owner could not convert it to his own use

Owner in case of private path would certainly have right to its use and conversion according to his own requirements and choice

Such a path would be as good property and subject of ownership as any other property could be.

[Words and phrases].

1993 MLD 1677 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

EasementEasement of necessityClaim for

Easement of necessity could only be claimed when it was demonstrated before Court that without enjoyment of that right, property for benefit of which easement was being claimed, could not be used at all.

1991 PLD 815 SUPREME-COURT Judicial Precedent

Right of

Easement is a right possessed by an owner of property, for its beneficial enjoyment, appurtenant to a property owned by another person

Right of easement thus accrues in respect of the property owned by someone else.

1990 CLC 1842 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Easement A neighbour can object to the construction of the building in his neighbourhood provided he is able to establish that his right of privacy, light and air will be disturbed and infringed

In absence of any authentic approved plan of building, it would be premature to hold that easement of the neighbours had been protected.

1989 SCMR 960 SUPREME-COURT Judicial Precedent

Law of Easement is applicable to evacuee properties transferred under Settlement Laws.

1989 CLC 1946 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Easement Right of

Easement, rights of a person are not subservient to the Building Control Laws nor are extinguished once a plan of a building is approved by the Authority.

1985 PLD 210 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Right of-Easement is a right which owner or occupier of land possesses as such for beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent same thing being done in or upon or in respect of certain other land not his own.

1980 SCMR 686 SUPREME-COURT Judicial Precedent

S. 27-Easement-Highway-Appellants though granted permission to construct petrol pump in dispute at milestone No. 113/5 on right side of a given road yet they actually constructed same on left side of road at milestone No. 113/6-Appellants in process blocking frontage of property belonging to respondent as a direct consequence of which tenants of respondent's shops suffered in their business and they vacated shops-Respondents, upon such facts, quite apart from fact whether construction of petrol pump amounted to a public nuisance, held, vested with an independent cause of action to seek removal of illegally constructed petrol pump.-[Public nuisance].

1975 PLD 82 PESHAWAR-HIGH-COURT Judicial Precedent

Extinction of right of-Easement extinguished the moment same person becomes entitled to absolute ownership of whole of dominant and servient heritage-Easements Act (V of 1882), S. 46.

1964 PLD 52 DHAKA-HIGH-COURT Judicial Precedent

Easement Customary right of pathway-Reasonability of custom to be ascertained by period of inception-Question of grant or prescription by indeterminate body cannot arise-Right to pathways dependent on : use from time immemorial; open and uninterrupted alongwith consent, implied or tacit.

1963 PLD 201 DHAKA-HIGH-COURT Judicial Precedent

EasementPrescription

`Right' of user to be proved by claimant-Mere user for innumerable years does not confer prescriptive right-High Court not to interfere in such finding of fact in second appeal-Principles of English Law not applicable-Provisions of Limitation Act (IX of 1908), S. 26 to be satisfied in this behalf.

1961 PLD 65 DHAKA-HIGH-COURT Judicial Precedent

Easement

Pathway-Defendants denying plaintiffs' right of way-Location of pathway should be ascertained by local investigation.

1958 PLD 337 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Easement Tenant in occupation of land may have a right of easement against his landlord if the easement is appurtenant to such land. A tenant may claim a right of easement against his landlord if the easement exists and is appurtenant to land occupied by the tenant.

1956 PLD 781 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Easement Easement

Right to go on another's land in order to plaster and repair own wall-Can only be acquired as an easement-Limitation Act (IX of 1908), S. 26.

1951 PLD 249 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Easement Surface water-Arising on tenement in form of springs or fountains or- rain-water-Is exclusive property of owner of tenement-Neighbour bound to receive water coming to him in ordinary course of nature-Stich right and corresponding obligation is incident of property arising out of natural configuration of lands-Right of easement to get rain-water through natural course might be acquired by prescription-Easement exists for convenience or advantage of owner of dominant tenement-Owner of servient tenement cannot compel owner of dominant tenement to continue to exercise easement-Permissive user cannot ripen into easement.