1. Through this civil revision petitioner has challenged the judgment & decree dated 13.11.1997 passed by the learned Additional District Judge, Taunsa whereby appeal filed by the petitioner was dismissed and the judgment & decree dated 27.5.1997 passed by learned Civil Judge, Taunsa whereby suit for declaration on the basis of right of easement filed by the plaintiff-respondent was decreed.
2. Brief facts of the case are that on 5.7.1988 plaintiff-respondent filed a suit for declaration that on the basis of right of easement plaintiff has a right to use the thoroughfare shown as A, B, C and D in the site plan annexed with the plaint and defendant be directed to remove the obstruction upon the said thoroughfare. Written statement was filed, suit was contested. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court decreed the suit vide judgment & decree dated 27.5.1997. Appeal was preferred by the petitioner-defendant, which was dismissed by the learned first appellate court vide judgment & decree dated 13.11.1997. Hence, this civil revision.
3. Learned counsel for the petitioner argues that learned both the courts below fell in error while ignoring the law applicable on the facts of the case as the right of easement has been claimed by the plaintiff-respondent and learned courts below absolutely ignored the provisions of the Easement Act (V of 1882), therefore, states that they fell in error while decreeing the suit and dismissing the appeal respectively. Argues that plaintiff-respondent was required to prove a case pleaded by him by producing positive evidence, he cannot take benefit of the shortcomings of the defendant-petitioner. Argues that the Sale Deed Exh.D.1 through which the plaintiff has purchased the property, does not show the claimed street in its southern side. In the southern side the plot of Saeed Jaffar has been written and plaintiff has admittedly purchased a plot from Saeed Jaffar. Relies on 2007 SCMR 901 “Abdul Khaliq alias Mithoo versus Moulvi Sher Jan and others” and PLD 2012 Peshawar 63 “Abdullah Jan and others versus Zabardast Khan and others”.
4. On the other hand, learned counsel for the respondent argues that the findings recorded by the learned courts are well-reasoned and there is no defect in the findings of the learned courts below, therefore, prays for dismissal of the civil revision.
5. I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary, findings recorded by both the Courts below and the applicable law and the judgments of the august Supreme Court of Pakistan on the subject. Section 4 of The Easements Act, 1882 is reproduced hereunder:
“Easement defined: An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritage and owners: The land for the beneficial enjoyment of which the right exists is call the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”
In this case the property of the plaintiff was dominant and that of the defendant-petitioner as subservient. The plaintiff has purchased a plot for commercial construction through a registered Sale Deed on 29.7.1979. Defendant-petitioner purchased the plot adjacent towards southern side of the plot of the plaintiff through registered Sale Deed on 27.11.1977. No-doubt in the sale deed of the defendant-petitioner on the eastern side of his plot there is mention of 8 feet wide street but counsel for the petitioner argues that this street was only mentioned by the seller in the sale deed of the defendant-petitioner because on the eastern side of the plot under sale, the other property of the seller was available, the street was shown only to show the approach to other property of seller which has subsequently been transferred in favour of the defendant-petitioner by the previous owner. Even otherwise, learned counsel argued that as per the record there was a dead end to this private street mentioned in the Sale Deed Exh.P.1, which has been produced by the plaintiff showing the ownership of defendant-petitioner, as after that dead end plot of the plaintiff-respondent starts.
6. As I have noted supra that learned both the courts below have not considered the legal provisions of the Easement Act (V of 1882). Section 15 of the Easement Act, 1882 is also reproduced for ready reference:
“Acquisition by prescription: Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years.
and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years.
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years.
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.”
In accordance with Section 15 of the Easement Act (V of 1882) the right does not mature if the right of way is not used for a period of twenty years. When plaintiff has purchased his plot through Exh.D1 Sale Deed dated 29.7.1979 and the defendant purchased his plot through Exh.P.1 through registered Sale Deed dated 27.11.1977 and the suit has been filed on 5.7.1988, no question of use of right of way for 20 years, therefore, both the courts below fell in error while decreeing the suit filed by the respondent and dismissing the appeal filed by the petitioner. When findings of both the courts below are against the provisions of law, therefore, not sustainable. Light can be taken from the judgment of august Supreme Court of Pakistan reported as 2007 SCMR 901 “Abdul Khaliq alias Mithoo versus Moulvi Sher Jan and others” in which necessary conditions for the acquisition of a right of easement have been reproduced.
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