ALI NAWAZ CHOWHAN, J. --- This judgment will dispose of the following five Civil Revisions Nos.
2374/2000, 2375/2000, 2376/2000, 2377/2000 and 2378/2000. All these involve a common question and impugn the judgment given by the Courts below. The Trial Court decided the suits on 16.10.1999 against the petitioners, whereas, the learned Additional District Judge, Gujranwala, dismissed the appeals vide his judgment dated 28.6.2000.
2. Five civil suits, from which the appeals and present Civil Revisions arise, were filed by different owners of land belonging to village Gagey Wali in Gujranwala. Near their village Hydel Power Station, Nandipur and a residential colony for WAPDA's employees were constructed close to Khasra No. 1289, which belonged to them.
3. It is their case that a Pakka Road located on the south of the residential colony and the Hydel Power Station existed since long and this was being used by them as a passage for the access of their lands. That even after the construction of the Hydel Power Station and the WAPDA's Colony, they continued to use it and for approaching the Sialkot Road, this road was also used by them for approaching the mosque, the Govt. Primary School and the Post Office, located in the WAPDA's Colony. Whereas, the residents of the. WAPDA's Colony used the road for purposes of burying their dead as the courtyard was located outside the boundary of the colony.
4. To re-enforce their arguments, it was said that whereas the colony and Hydel Power Station were enclosed through a barbed wire enclosure but a gate was provided on the south since 1966 so that the plaintiffs could use the road for the afore-mentioned facilities.
5. The cause of action arose to the respondents when the petitioners closed the gate erected by, it towards the south whereby their accessibility through this road was stopped.
6. According to them, they had acquired easement rights over the passage since over 20 years and their rights of easement be protected.
7. The suits were consolidated vide orders dated 8.11.1994 and the matter proceeded under the caption "Muhammad Farooq v. WAPDA".
8. In their statements, the petitioners denied acquisition of any easement rights and stated that there was an alternate approach to Gujranwala-Sialkot Road and consequently to their Khasra number/village which could be used by the respondents.
9. On the basis of the pleadings of the parties, the following seven issues were framed:---
(i) Whether defendant had no right to block the main iron gate? OPP:
(ii) If issue No. 1 is proved in affirmative, whether defendant should be ordered to open the main iron gate? OPP.
(iii) Whether the defendant should be restrained from blocking the small iron gate and the suit passage? OPP
(iv) Whether plaintiff has .No cause of action and locus-standi to file the present suit? OPD
(v) Whether the suit is mala fide? OPD.
(vi) Whether suit is hit u/S. 56 of the Specific Relief Act? OPD
(vii) Whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD.
10. In the first round of litigation, the Trial Court had given its judgment on 27.3.1995, against which the appeals were filed before the learned Additional District Judge, Gujranwala, who vide his judgment dated 12.7.1999 decreed the suits in favour of the plaintiffs.
11. The matter. Was agitated before this Court invoking its visitorial jurisdiction. On 26.8.1995 cases were remitted to the Court below for framing of issue No. 7-A which reads as follows:--- (7-A) Whether the plaintiffs have matured their prescriptive right of easement if yes, its effect? OPP
12. No further evidence was led before the Trial Court who decreed the.Suits. The matter once more became the subject-matter in appeals before the learned Additional District Judge, who dismissed the appeals.
13. While adjudicating against issue No. 7-A, the learned Additional District Judge opined as follows:--- "11. This issue relates to the prescriptive right of easement. The same matures when any right is exercised without any interruption for a period of last 20 years, where the property is not owned by the Government and where the property is owned by the Government, then the afore-said period is 60 years. Now the question at the first hand arises that whether the disputed passage is owned by the Government or otherwise. The land including the passage was acquired for construction of Hydel Power Station and WAPDA Colony etc. In the year 1954, under Land Acquisition Act while the award was announced in the year, 1961. So admittedly the title of the disputed passage vested with WAPDA appellants/defendants. WAPDA is controlled by WAPDA Act XXXI of 1958. Section 3 of this Act very much clearly speaks about the nature and kind of WAPDA Authority and according to which the WAPDA Authority has been declared to be, corporate body. So it is a statutory body though controlled by Government.
12. Learned counsel for the appellants vehemently argued that the property of WAPDA is Government property, so far maturing the perspective right of easement of the appellants 60 years period is required which the respondents plaintiffs have not uptil completed. So there is no perspective right of easement available to the respondents/ plaintiffs. He strenuously relied on WAPDA v. Administrator District Council (2000 CLC 40). I am of the humble view that this case-law is not helpful to the learned counsel for the appellants because in this case law the entity of WAPDA in the light of Section 3(2) of WAPDA Act XXXI of 1958, has not been discussed and declared that of Government. In the above-cited 'case-law the entity of WAPDA has been discussed with reference to Article 165, Constitution of Pakistan for exemption from taxation. Although the entity of WAPDA substantially is owned and managed by the Government but due to this fact cannot render as Department of Government. I got support to my opinion from case-law Muhammad Bashir Bhatti v.
K.D.A. (PLD 1986 Karachi 130) and Shahid Mehmood v. Karachi Electric Supply Corporation (1997 CLC 1936) wherein it has been held that where an establishment owned, managed and controlled by Federal Government cannot be treated as a Department of Federal Government, coupled with, the fact that entity of WAPDA as a Corporate body is uptil now intact. So from .The above-said it can easily be construed th- WAPDA is not a Government department and the period for maturity of the perspective right of easement against WAPDA requires 20 years.
13. The appellanis/defendants produced Dilawar Ali as DW-1, Senior Engineer Mirza Hussain Ali, Resident' Engineer DW-2, Badar Munir DW-3, Rahis Ahmad Butt DW-4, Chiragh Din DW-5, Ghulam Hussain, Assistant Engineer DW-6 and as a documentary evidence different documents from Ex.D-1 to Ex.D-13. In rebuttal Rana Muhammad Basharat PW-1, Muhammad Ismail PW-2, Akbar Ali PW-3, Farooq one of the respondents as PW-4 and as a documentary evidence Ex.P-1 to Ex.P-12 were produced.
14. All the witnesses produced by the appellants/defendants. Tried to rebut the assertions and contentions of the respondents/plaintiffs about the maturing of perspective right of easement, while on the other hand the witnesses produced by the respondents/plaintiffs tried to substantiate the fact that the respondents/plaintiffs have got matured the prescriptive right of easement for the disputed passage. During course of trial Rana Muhammad Basharat, Advocate PW-1 was appointed as local commission by learned Trial Judge for ascertaining the following three facts:---
(i) Whether some passage connects the houses of the appellants with Sialkot road other than the disputed passage. If so, where and from which side of the respondents/plaintiffs' houses and its distance?
(ii) How far is the security gate from the disputed passage?
(iii) How long the respondents/ plaintiffs have been using the disputed passage?
15. This witness in compliance to the direction of learned Trial Court visited the spot and after making inspection and recording statements of witnesses produced by both the parties submitted his report. Ex.P-1 including a site plan. For the first fact he observed in his report that there exists another way and this passage was not already in existence. It came into existence when Sema Nala was dug parallel to Mauza Abdaal to some extent and then it turned to the eastern side of the agricultural land of the appellants and this passage is Kacha unmotorable and situation at a distance of 4% kilometers from the houses of the respondents/plaintiffs, is also inhabited and abandoned while the disputed way is comparatively situated at a distance of only 400 yards and is only suitable passage for the respondents/plaintiffs and other residents of the area. The witness also prepared a site plan and annexed with his report.
16. For the second fact PW-1 has specifically mentioned in his report Ex.P-1 that actually Hydel Power Station is situated at a distance of 550 yards from the houses of the respondents/plaintiffs and is surrounded by four walls and segrated from other even construction of WAPDA itself i.e. WAPDA Colony etc. And this area can be termed as security area.
17. For the third fact PW-1 had reported that the respondents/plaintiffs are using the disputed passage for the last more than 40 years. Even prior to the construction of Hydel Power Station and residential this disputed passage was a Kacha road and thereafter it was made into a method road the appellants/defendants. However, this PW also confirmed in .Ex.P-1 that there exist a primary school, mosque and post office in the WAPDA Colony which are commonly used by the respondent/plaintiffs and employees of the appellants/defendants. It was also observed that the main gate at Sialkot Road alongwith small gate was installed by the appellants/defendants initially only for the use of respondents/plaintiffs and inhabitants of the surrounding areas because the alternative passage was not available to the respondents/plaintiffs and other inhabitants for approaching Gujranwala Sialkot Road. Although the witness was cross- examined at length but all in vain. This witness during spot inspection got recorded statements of 6 CWs (commission witnesses) on behalf of the respondents/plaintiffs and 6 CWs on behalf of the appellants/defendants. Not only the CWs appeared on behalf of the respondents /plaintiffs corroborated the contentions of respondents/plaintiffs but also the CWs appeared on behalf of the appellants/defendants had also invariably conceded and admitted the contentions of the respondents/plaintiffs. The report of the local commission was not objected by any party.
18. From the above-narrated evidence of both the parties it is admitted fact that alongwith WAPDA Colony Post Office is situated in that vicinity but that Post Office is not sanctioned by the Post Office Department as WAPDA Post Office but that Post Office has been named and sanctioned as Nizam Pur Post Office and it was also admitted that the respondent/plaintiffs also saying their prayers in the mosque of WAPDA Colony. All the witnesses of appellants did not specifically deny the contentions of the respondents/plaintiffs 'get education in the school situated in the WAPDA colony.
As it has already been stated by me that security risk area has been segrated and separated by Pacca wall from other construction of Hydel Power Station and that it situated at a quite distance from residential WAPDA Colony and even from southern gate from where the respondents/plaintiffs come to the disputed road and then turn towards west for approaching to Gujranwala Sialkot road which is totally opposite in direction to the security risk area. Solt means that users of the disputed property have no concern with the security risk area coupled with the fact that from the southern gate the security risk area is situated at a distance of 550 yards while the main gate at Gujranwala Sialkot road is situated at a distance of 400 yards and Hydel Power Station (security risk area) has an independent gate for its entry for security measurements. The respondents/plaintiffs and inhabitants of WAPDA Colony use this disputed passage jointly. They both are also beneficiaries of the utilities of school, Post Office etc. Situated at WAPDA Colony and graveyard that is situated out of the boundary wall towards houses of respondents/plaintiffs. No alternative, close and feasible route is available to the respondents/plaintiffs. It is obvious that the respondents/plaintiffs are using the said passage for more than 20 years and even uptil now for 40 years, continuously without any interruption and as a public route along with inhabitants of WAPDA Colony. It is very much pertinent to mention that learned counsel for the appellants has failed to answer the situation with plausible and convincing reason that southern wall in which the gates are installed through which the respondents/plaintiffs approach the disputed way , for what fund gates were installed by the appellants/plantiffs since the construction and creation of Hydel Power Station and erection of boundary wall because on the other side towards which the house of the respondents/plaintiffs are constructed. The appellants/defendants have no concern with that vicinity because no relevant machinery or other apparatus and equipment of appellants/defendants.Are installed there. So it can candidly be construed that the gates installed in southern wall of the Hydel Power Station were only for the use of respondents/plaintiffs and not for any other purpose and the installation of these gates in the southern wall is sufficient to prove the element of hostility."
14. Initially before this Court, the learned counsel for the petitioners took the plea that WAPDA's property being a government property, the period for .Maturing of the easement right will be 40 years not 20 years. On this question, he was confronted with the following case law:---
(i) PLD 1986 Karachi 130 (Muhammad Rashid Bhatti v. K.D.A. And another);
(ii) 1997 CLC 1936 (Shahid Mehmood v. Karachi Electric Supply Corporation Ltd.);
(iii) 1997 SCMR 641 (M/s. Gadoon Textile Mills & others v. WAPDA and others); and
(iv) 1996 SCMR 336 (Binyameen and others v. Chaudhry Hakim and another).
15. In these citations, it is established that statutory bodies like WAPDA are statutory bodies independent in their functions and holders of property in their own names. It is, therefore, an established fact that properties owed by WAPDA are properties belonging to WAPDA and not to the Federal Government.
16. After these views, the obvious consequence would be that the easement rights in respect of such properties of statutory bodies like WAPDA will mature after 20 years and not 40 years.
17. Some of the other questions which came up for consideration have already been answered by the Appellate Court. These questions inter alia related to the safety of the property belonging to WAPDA in case the passage was to be used by the resident. This question has been persuasively answered by the learned first Appellate Court in favour of the plaintiffs.
18. We cannot go into a further factual inquiry in these revision petitions having a concurrent findings.
19. Anyway, when it was stated by the learned counsel for the respondents' side that so far and since the said passage was being used by the respondents, there has been no security mishap.
There was nothing stated in rebuttal. It, however, appears that the Hydel Power Station has been enclosed separately and safety measures regarding the same were taken.
20. According to the learned counsel, if the said passage was closed, the appellants would suffer an irreparable loss and hardship whiie finding an access to their homes through this passage which was the only proper access and not only other road or way,
21. The case was fully debated before this Court. There are concurrent findings on facts and upon remand the case had been further reviewed and the verdict given in favour of the respondents/plaintiffs.
22. WAPDA has not been able to produce any revenue document to support its plea that the passage under reference was not old but was recent and was not reflected in the revenue document.
23. There are concurrent findings on facts. There is nothing to suggest any misreading or non- reading of the evidence. The matter has been agitated in two rounds of litigation.
24. Under the circumstances, this Court would feel it proper in upholding the judgments of the Courts below and finding no merits in these Civil Revisions, dismisses the same. Anyway, there will be no order as to costs.
Civil revision .