' SAGHEER AHMED QADRI, J.---In a suit for issuance of permanent injunction filed by petitioner/plaintiff Atta Muhammad while giving the facts that he along with respondent/defendant Ghulam Din are co-sharer in land bearing Khasra Nos. 2429, 2430, 2432, 2433 to 2438; that petitioner/plaintiff has constructed Dhock over Khasra No,2433, while respondent was in possession of Khasra No,2434 in the same position; that the respondent had constructed shops and a bathetic on the Eastern corner of Khasra No,2433, while the plaintiff had been using a 12 feet wide passage since long situated in front of the said bathetic owned by respondent. Thus a right of easement had also created in his favour. It was alleged that now the respondent by erecting a wall on that passage wanted to close the way to which he had no right; that for that purpose two feet high foundations had already been raised by the respondent. It was prayed that firstly the respondent be restrained from blocking the passage and secondly a mandatory injunction be issued for removing of any obstacle in the passage above mentioned.
2. Written statement was filed by the respondent/defendant wherein, he while raising five preliminary objections on the grounds that suit was filed with mala fide as none of the other co- sharer ever raised any such objections, as no right of way ever exist in favour of plaintiff/petitioner at the place where it was agitated by the petitioner that a passage already exist on the Western corner of Khasra No,2433 running North-South direction which was being used by the petitioner/plaintiff; that no right of way was available to the petitioner/plaintiff as claimed. Prayed that suit be dismissed.
3. Out of the pleadings of the parties learned trial Court framed the following issues:--
(i) Whether the suit is not maintainable in its present form? OPD
(ii) Whether the suit is bad for mis-joinder and non joinder of necessary parties? OPD
(iii) Whether the suit of the plaintiff is based on mala fide? OPD
(iv) Whether the suit is false, frivolous and vexatious, hence, the defendant is entitled for special costs? OPD
(v) Whether the plaintiff is entitled to obtain a decree for permanent and mandatory injunction about the land dispute, fully describe in the head note of the plaint? OPP 5-A Whether the local commission report is liable to be set aside? OPP
(vi) Relief
4. Parties led their respective evidence. Petitioner/plaintiff examined Fahim Malik learned local commissioner as P.W.1, who brought on record his report Exh.P/1 and site plan Exh.P/2. Plaintiff/ petitioner Atta Muhammad appeared as P.W.2 and Khuda Bukhsh P.W.3. Learned counsel for the petitioner/plaintiff while submitting Aks Shajra Exh.P/4 and Fard Jama Bandi Exh.P/5 closed the evidence.
5. On the other hand respondent/defendant himself appeared as D. W.1 and examined Ghulam Ali Draftsman as D.W.2 and closed the evidence.
6. Learned trial Court vide judgment and decree dated 6-7-2005 while deciding issue No,5 in favour of the plaintiff/petitioner and remaining against the defendant/respondent decreed the suit.
7. Feeling aggrieved, the respondent/defendant preferred an appeal, which was heard and decided by learned ADJ, who vide impugned judgment and decree dated 28-10-2005 while reversing the findings of the learned trial Court on all the issues, while allowing the appeal dismissed the suit filed by the petitioner/plaintiff. The plaintiff/petitioner now has challenged the impugned judgment and decree dated 28-10-2005 before the Court through this revision petition.
8. Learned counsel for the petitioner/plaintiff contends that the learned trial Court passed its findings on issue No,5, relying on the report (Ex.P/1) of learned local commissioner P.W.1 whereby it was specifically brought on record that a passage exist as alleged by the petitioner/plaintiff, which was narrowed down by the respondent/defendant, but the learned ADI totally ignored that factual aspect. That the learned appellate Court only on the ground that an alternate passage was available dismissed the plea raised by the plaintiff/petitioner about his right of way matured as easement. That findings of learned trial Court are liable to be restored, while allowing this revision petition. Reliance was placed on (1991 M LD 106) {Lahore} Malik Paiker Maqsood and 106 others v.
Sheikh Muhammad Amin and 637 otheRs,
9. Conversely the learned counsel for the respondent/defendant vehemently opposed the arguments advanced by learned counsel for the petitioner/plaintiff. It was argued that admittedly the Khasra Nos.2433 and 2434 were jointly owned by the petitioner, respondent and other co- sharers; that as a result of a family partition all the co-sharers are in possession of their respective shares; that petitioner had been using a passage to lead his property, but with mala fide he started claiming the right of passage from the defendant/respondent's property; that there is no such passage available as asserted by the petitioner; that plaintiff/ petitioner and his witnesses admitted during their statements that a passage was being used by the plaintiff/petitioner to reach his property but he wanted access to an alternate route. It was agitated that the revenue record does not support plaintiff s version nor any evidence was led to prove such right on the basis of easement. It was further argued that even otherwise the right of easement claimed must have been based on easement of necessity, otherwise, such right cannot be claimed. Reliance are placed on (1991 SCM R 119) Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estates Ltd. And another, (1993 M LD 1481) {Peshawar} Abdul. Karim v. Ali Zaman and another, (1992 CLC 2060) {Lahore} Muhammad Ismail and others v. Malik Muhammad Shafi and others and (1994 M LD 550) {Lahore} Fazal Din v. Mst. Umar Bibi and another.
10. I have heard learned counsel for the parties and perused the record.
11. Issue No,5 is pivotal to decide the controversy between the parties. As already mentioned that the plaintiff/petitioner claims himself entitled, the issuance of injunction in his favour restraining the respondent not to block the alleged passage.
(i) The land bearing Khasra Nos.2433 and 2434 is jointly owned by the parties.
(ii) That the passage exists since long and the petitioner has created a right in his favour on the basis of easement.
(iii) That no alternate passage is available for the petitioner to reach his property.
' Onus to prove issue No,5 was placed on the plaintiff/petitioner. Plaintiff/petitioner Atta Muhammad himself appeared as P.W.2. In his examination in chief he stated that:- {{URDU TEXT}} ' During cross-examination plaintiff/petitioner stated that:- {{URDU TEXT}} ' He further during cross-examination admitted that:- {{URDU TEXT}} ' In order to corroborate his statement the petitioner/plaintiff examined Khuda Bukhsh as P.W.3, who in his examination-in-chief stated that the petitioner had no passage available to access his property except the passage in dispute, but during cross-examination he admitted that:-- {{URDU TEXT}} ' At another place he admitted that:- ...4.i....6).-ti.t..(...V1.-,....,(1.1(),&A)p.4'41:,-,J.:-4.4.5:4=-L.Are {{URDU TEXT}} ' If the above mentioned evidence led by the plaintiff/petitioner is seen admittedly the land in dispute is joint one but the parties as a family arrangement are in possession of their respective share. The claim by the petitioner/plaintiff that he had no other passage to have access to his property is nullified by his own evidence. He has to prove his right of passage on the basis of easement. Firstly, no evidence is led to prove the existence of any such right and secondly the right of way claimed through easement is a right of easement by necessity. This necessity must be absolute one and if any alternate mode or passage is available then one cannot claim such right.
Under section 13(e and f) of Easement Act 1882 it is provided:-- "Where a partition is made of the joint property of several persons,--
(e) "If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(t) If such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or shall, unless a different intention is expressed or necessarily implied, be entitled to such easement"
' The easements mentioned in this section, clauses (a), (c) and (e), are called easements or necessity."
' Reference can be seen as (1990 PSC 1199) (M/S) Pakistan Warranted Warehouse Ltd. v. (M/S) Sindh Industrial Trading Estates Ltd. And others and (1991 SCM R 119) (M/S) Pakistan Warranted Warehouse Ltd. v. (M/S) Sindh Industrial Trading Estates Ltd. And otheRs, Their Lordships of Hon'ble Supreme Court of Pakistan while discussing this preposition were pleased to observe in para No,14 of the judgment:-- "The next question for consideration is as to the necessary constituents of the easement of necessity claimed by the appellant. The particular right claimed by the appellant is the right of way over the property of the respondent No,
1. There is no ground for upsetting the concurrent findings of Courts below that the disputed place of land did not constitute the road area. Now it is quite plain from the averments contained in the plaint that the appellant's case was not of acquisition of easement right by way of express or implied grant under section 8 of the Easements Act. Its claim was that of easement of necessity under section 13 clause (a) of the Easements Act. Such easement can be claimed by the transferee on the other immovable property of the transferor if it is necessary for enjoying the subject of the transfer. 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 Court 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; Kristnamrazu v. Marrazu 15 MLJ 255; Sheo Nath and others v. Mughla AIR 1938 Lah.800 and 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. We, therefore, do not agree with the contention of the learned counsel for the appellant that the Courts below misconceived the legal position in holding that the appellant was required to prove absolute necessity for the right of way claimed by him. We would further briefly refer to the judgments cited by the learned counsel for the appellant. In Pakistan National Oils Limited v. Sattar Muhammad 1980 SCM R 686, the facts were distinguishable and the issue did not relate to easement of necessity but the right claimed was a right of access of an owner of land adjoining a public highway from all points on the common boundary between his property and the road. In the present case so far as the disputed piece of land is concerned, the concurrent findings is that it is not a public road but an open industrial plot. Therefore, the question of approach to this portion of land by the appellant does not in the facts of this case arise. Remadhin Singh v. Jadunandan Singh AIR 1915 Cal. 486 is also not a relevant case for the controversy in the present appeal. No right of way was involved in this case. The case reported in Abdullah and another v. Ahmad Khan and others 1988 CLC 1301 deals with the right of a person in the immediate neighbourhood of the local public thoroughfare to maintain a suit for removal of obstructions without proving special damages and therefore, the rule laid down is not relevant to the present case. Lastly Chadar and others v. Bala Pershad AIR 1928 Lah. 497 also is on facts totally distinguishable from the present case inasmuch as it deals with the quasi-easement with regard to drain water. As already pointed out Sheo Nath v. Mughla AIR 1938 Lah. 800 goes against the proposition canvassed by the learned counsel for the appellant. It has been clearly laid down therein that where there are other ways for ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient."
' As already discussed above, the petitioner/plaintiff himself as well as his witnesses admitted that the petitioner actually was enjoying the access to his property through another passage but he was claiming his such right through the land in possession of respondent as an alternate passage while exercise of his right of easement, which in these circumstances was not available to him.
Thus the finding on issue No,5 passed by learned ADJ was lawful and justified. Even otherwise, as it is admitted by the petitioner/plaintiff himself that the property in his as well as respondents' possession is joint one, therefore, a suit for grant of injunction simplicitor is not maintainable, until and unless partition is sought. Resultantly the findings of learned appellate Court on issue Nos.1 to 4 and 5-A are also upheld. This revision petition being devoid of any force is hereby dismissed with costs through out.