' M. SOHAIL IQBAL BHATTI, J. --- Through this civil revision, the petitioner has challenged the vires of Judgment and Decree, dated 24.11.2001 passed by learned Civil Judge, 1st Class, Rawalpindi and Judgment and Decree, dated 05.01.2005 passed by learned Additional District Judge, Rawalpindi.
2. The brief facts of the case are that the petitioner/plaintiff filed a suit for declaration and mandatory injunction by stating that the petitioner/plaintiff was owner in possession of land adjacent to the property of the respondents. It was further averred in the plaint that there was a passage situated in the property of the respondents which was in existence for the last 40 years and the petitioner/plaintiff had been using that passage to approach the main road. The respondents, who wanted to purchase the land of the petitioner in order to pressurize him, had closed the passage by erecting a Gate; the petitioner/plaintiff prayed for declaration that he was entitled to use the passage on the basis of easements and further prayed for passing a decree for mandatory injunction directing, the respondents to remove the gate erected by them. The respondents/defendants filed a contesting written statement and upon divergent pleadings, the following issues were framed:---
(1) Whether The plaintiff has prayed for contradictory relief in the suit? If so, its effect? OPD.
(2) Whether the suit is defective in present form? OPD
(3) Whether the suit is barred by time? OPD
(4) Whether the defendant is liable to pay special costs under Section 35-A, C.P.C.? OPD
(5) Whether defendants No, 2 and 3 are not necessary parties, its effects? OPD
(6) Whether the plaintiff has been using the path comprised in Khasra Nos. 195 and 207 for more than a period of 20 years? OPP
(7) Whether the plaintiff obtained a right of easement in respect of the path in question? OPP
(8) Whether the defendant is not entitled to close the disputed passage? OPP
(9) Whether the plaintiff is entitled to have alternative relief of having the gate closing the disputed path removed? OPP
(10) Relief.
3. After recording of evidence, initially the suit was decreed on 12.04.1989 by learned Civil Judge, Rawalpindi. The said decree was challenged by the respondents/defendants in appeal and the learned Appellate Court remanded the case to the learned Trial Court vide judgment dated 16.11.1989. In view of the judgment of first Appellate Court, the following additional issues were framed:--- 10-A Whether the use of the passage by the plaintiff was with the permission of the defendant, if so, its effects?
10-B Whether the plaintiff is not owner of property claimed by him, hence has no locus standi to file this suit? OPD 10-C Whether the suit is bad for mis-joinder and non-joinder of parties.
10-D Whether there is no alternative way for petitioner/plaintiff to approach his land except the path in dispute, if so, what is its effect? OPP
4. After framing of additional issues, evidence was re-recorded and the suit of the petitioner/plaintiff was dismissed vide judgment and decree dated 24.11.2001. The petitioner/plaintiff preferred the appeal which also met with the same fate, vide judgment and decree dated 05.01.2005.
5. The learned counsel for the petitioner/plaintiff argued that the judgments and decrees challenged in the revision petition are against the law, facts and circumstances of the case; both the Courts-below misread the documentary evidence as well as oral evidence produced by the petitioner/plaintiff. He further argued that a portion of evidence which was produced by the petitioner/plaintiff was not cross-examined or shattered in the cross-examination examined amounts to admission. In support of his plea, he further argues that finding recorded by learned Trial Court as well as the Appellate Court are erroneous and against the statement of PW-1 which only related to the permission granted to him but otherwise the people of locality including the petitioner used this passage for almost 40 years and resultantly they are entitled to easement by way of prescription.
6. Conversely, learned counsel for the respondents has vehemently opposed the arguments advanced by the learned counsel for the petitioner/plaintiff, it was argued that initially the petitioner/plaintiff claimed a right on the basis of prescription but subsequently the right was claimed on the basis of necessity and the both the Courts below have rightly recorded that it was established from the evidence that alternate passages were available to the petitioner/plaintiff.
7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
8. As there are concurrent finding of facts which are based upon the proper reading of evidence so in civil revision under Section 115, C.P.C. Concurrent finding of facts should not be disturbed, so as to the extent of finding of facts, I deem it appropriate not to discuss the same; however, it is to be seen as to whether the petitioner/plaintiff has any right secured by any law of easement through prescription or necessity.
9. In the present case, it is established from Exh.P-1 i,e, letter, dated 04.05.1951 that the respondents had given their no objection allowing the petitioner to use the passage. Similarly, Exh.D-2 is a letter addressed by the petitioner/plaintiff to the respondent No, 1, in which the petitioner/plaintiff has made a request to the respondent company that he intends to convert his piece of land into residential plots and a request had been made to the company to consider the request of the petitioner to provide a passage upto his plots; meaning thereby that right of easements on the basis of prescription cannot be claimed by the petitioner/plaintiff.
10. On the other hand, it has transpired from the record that the learned Civil Judge himself visited the site on 28.05.1992 in exercise of powers conferred upon him under Order 18, Rule 18, C.P.C., the note of site inspection reveals that more than one passages are available to the petitioner/plaintiff.
To establish a right of easement on the basis of necessity, the petitioner/plaintiff is under an obligation to prove that no other passage whatsoever available to him to have an access to his land, but in the present case, it is established from record that more than one passages are available to the petitioner/plaintiff.
11. For what has been discussed above, I am not inclined to disturb the finding of facts recorded by both the Courts below. Moreover, the petitioner/plaintiff has failed to point out that both the Courts below have acted in exercise of their jurisdiction illegally or with material irregularity. Resultantly, civil revision is dismissed with no order as to costs. Civil revision .