' This civil revision petition arises out of the judgment and decree, dated 3-4-1999 passed by the learned Additional District Judge, Charsadda in Civil Appeal No,52/13 whereby on maintaining the judgment and decree of the trial Court, dated 24-11-1996, the appeal of the petitioner was dismissed. The short facts of the instant case are that Mst Gul Sawara wife of Aurangzeb Khan filed a suit for declaration to the effect that she being the owner in possession of land measuring 23 Kanals, 10 Marlas bearing Khasra No,513/4, has the right of access to her land through path denoted as "Alif" to "Bai" in the Shajra Kishtwar. She based her claim to use the disputed path on the maturity of prescriptive rights as well as a right of easement. She averred that there is no alternative path for having an access to her landed property. Thus, according to her averments, the petitioner Muhammad Tariq had no right to make any obstruction in the path. Addedly, permanent and mandatory injunctions were also solicited.
2. The suit was contested by the petitioner. He filed written statement and the rival pleadings of the parties generated the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether 'the suit is incompetent in its present form?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the plaintiff is estopped to sue?
(5) Whether there exists a Bandobasti passage towards north of plaintiff's land in Khasra No,513-4, since long time and she has acquired right of Easement/Prescription on account of her long use of the same and defendant has no right of obstruction?
(6) Whether there is no such passage available at site and plaintiff's claim is false and fictitious?
(7) Relief.
3. The trial proceeded on the above contentious issues. The parties adduced their evidence in support of their respective contentions and the learned trial Court on conclusion of the trial decreed the suit of respondent. The appeal filed by the petitioner also could not earn any success as it was dismissed.
' The learned counsel for the petitioner has vehemently argued that both the learned Courts below landed in error of misreading and non-reading of evidence. He contended that there is a "Bandobasti" path on the Eastern and of the property of respondent which is the actual path for the use of her property. He urged that this fact has been admitted by Aurangzeb Khan (P.W.2) who appeared as attorney for the respondent. For the admission of the alternative path, the statement of Jamshaidullah (P.W.3) was also referred to. He emphatically argued that the disputed path passes through the property of the petitioner. The land of the two parties is separated by "Bandobasti Lakhti" and the disputed path is meant for private use of the petitioner who has also constructed a residential house there. In support of this contention, the learned counsel also made reference to and relied on the report and statement of the Local Commissioner namely Abdur Rahman Khan, Advocate, dated 5-7-1994. He argued that since it has been proved through the admission of Aurangzeb Khan (P.W.2) and other hard evidence including the report of the Local Commissioner that there is "Bandobasti" path on the Eastern side which huggs the land of respondent, the said path can very conveniently be used by respondent.
5. On the other side, the learned counsel appearing for respondent Mst. Gul Sawara, has defended the impugned judgment on the argument that since long the respondent is in continuous use of the disputed path and as such she has matured her prescriptive right as a matter of necessity and easement. He further submitted that the disputed path is the only convenient way for approach to the land of respondent and as such convenience cannot be disturbed by the petitioner even if it is assumed that there is alternative path leading to the path of respondent. He urged, that since there are trees aging about 20/25 years standing in the "Jhangi" of the respondent, therefore, it gives way to presumption that the disputed path remained in use of the respondent for about 20/25 years. He further stated that the concurrent findings on the question of fact are not open to interference in revisional jurisdiction of this Court.
6. I have eagerly heard and carefully considered the arguments of the learned counsel for the parties. Patwari Halqa namely Iltaf Gul (P.W.1) has in no manner supported the claim of respondent.
P.W. Aurangzeb has eloquently admitted it correct that on the Eastern side of the land of respondent/plaintiff, there exists "Bandobasti" path. He has also admitted that on the Western side there is a water channel (Lakhti) and about 15/20 Jaribs of land of petitioner is situated on the Western end and that the petitioner had constructed a residential house for himself and his tenant about 4/5 years back. P.W.3 has also unequivocally stated that from "Dera Maweshyan" of respondent, there is another path at a distance of about 100 paces. It may be clarified that "Dera Maweshyan" of respondent is situated at the end of her property and it appears to be contiguous to the watercourse and the disputed path. The Local Commissioner was appointed who visited the spot in presence of the parties and prepared his report along with a map of the disputed path and its adjoining lands. The Local. Commissioner has very clearly stated that the alleged path is situated in Khasra No,465-467 which is not a "Bandobasti" path. He maintained that to the Eastern side of Khasra No,513/4 there exists a "Bandobasti" path. It is to be noted that Khasra No,513/4 is the property of respondent. The said path according to the statement of the Local Commissioner reaches to village Amba Dher at point "I" where a metalled road is existing. The above statement of facts abundantly proves that a "Bandobasti" path is available to respondent for the use of her property. On this aspect of matter there is a suggestion to petitioner by respondent in the following diction:-
7. For sustenance of claim of right of easement of necessity, it must be shown that without enjoyment of such a right, the property for the beneficial user whereof the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment of the said property would be rendered inconvenient. On this proposition, the Honourable Supreme Court in case of Abdul Hamid Shah and another v. Muhammad Yar and 13 others PLD 1991 SC. 815 has observed as follows:--- "The right claimed by the respondents is the easement of necessity envisaged by section 13 of the Easements Act, 1882. For sustenance of such a claim, it must be shown that without enjoyment of such right, the property for the beneficial user whereof the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment of the said property would be rendered inconvenient."
8. Similarly in Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estates Ltd. And another 1991 SCM R 119, it was observed by the Honourable Supreme Court as follows:-- "The consensus of judicial opinion seems to be that an easement of necessity is an easement without which the property cannot be used at all. Consideration of reasonable enjoyment of the property furnished no test for creation of such right of easement nor would convenience be the test for creation of such right. On the contrary consistent view taken by the Courts is that necessity must be an absolute necessity and not a convenient mode of - enjoyment of the property. In other words it is well-settled that the necessity under clause (a) of section 13 is not an ordinary necessity but an absolute one. In Mariyayi Ammal v. Arundachala Pandaram AIR 1956 Mad. 584; Nawab Zekia Begum v. Lucknow Improvement Trust AIR 1937 Oudh 263; Daw Tint v. Maung Kywr AIR 1935 Rangoon 56; Krishnamarzu v. Marrazu 15 MLJ 255; Sheo Nath and others v. Mughla AIR 1938 Lah. 800; Narayana Gajapatraju v. Janaki Rathayyammaji AIR 1930 Mad. 609 the same principles have been laid down. All these cases relate to the easement of necessity for right of way over the property of the transferor."
9. Likewise, in Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82, it was held that easement of necessity is not allowed for reasons of convenience and when other alternative route is available, such route although highly inconvenient cannot sustain a claim for passage through another's property. The said judgment bears the relevant quotation of Ibrahim, J., in Abdul. Hafiz and others v. Mafizuddin and others (1955) 7 DLR 577. Owing to its relevancy, I also feel disposed to quote the same which is as follows:- "A prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right, i,e, not attributable to permission implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their neighbour, friends and relations with their tacit permission. Such user, though continuous, and long, is seldom understood as being assertion of any right. In a suit for prescriptive right of way the plaintiff must show that his user was such as was sufficient to put the servient owners' on notice that the enjoyment was not attributable to his tacit permission or favour. The learned Subordinate Judge does not refer to any evidence to justify his finding that the user was `as of right'. In England, if long user is proved, it is presumed that the enjoyment was as of right. It would be unsafe to draw such an inference from user in this country, vide the case of Sheikh Khoda Bakhsh v. Shaikh Tajuddin and others ... Enjoyment "as of right" as distinguished from "of right" means, as if the dominant owner had the right to the enjoyment.
Whether the enjoyment was as of right or attributable to tacit permission, may be difficult to determine in many cases; but, however, great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right.
Whether the enjoyment was, had as of right, is to be inferred from the circumstances of each particular case, and it is the duty of the dominant owner to prove facts which will justify such an inference. To entitle him to such an inference, he must show that the acts of actual user were such as to put the servant owner regarded as a reasonable man on notice that a right in the nature of an easement was being asserted or claimed over his property."
' The case of Muhammad Ismail and others v. Malik Muhammad Shafi and others 1992 CLC 2060 can also be referred with advantage.
10. In view of the foregoing statement of facts and law, I have no hesitation to hold that the finding of the two Courts below are not based on true appreciation of evidence and correct perception of law on the subject. Resultantly, this revision petition is allowed, the judgment and decrees of the two Courts below are set aside.And the suit of respondent-plaintiff is dismissed with no order as to costs.
Revision .