' This revision petition has been preferred against the judgment & decree dated 15.1.2010, passed by learned District Judge-IV, Haripur, whereby the appeal filed by petitioner against the judgment and decree dated 24.10.2009, passed by learned trial Court, was dismissed.
2. Arguments heard and record perused.
3. A perusal of record reveals that Mehboobur Rehman respondent filed a suit for declaration and perpetual injunction against petitioner claiming ownership of the property, in dispute which is Shamilat Deh kind of land with the prayer that the defendants be restrained not to make hindrance by raising construction in the path which is being used by him since more than 50 years. The defendants contested the suit by filing written statement wherein claim of plaintiff was vehemently denied.
4. Though the plaint does not find mentioned any khasra number in the heading of the plaint, however Patwari Halqa was examined as PW.1 who produced record Ex.P.1/1 to Ex.PW.1/4 regarding Khasra No, 15 Shamilat Deh and had also produced in cross-examination Ex.PW.1/D-1 and Ex.PW.1/D-
2. Similarly PW.2 S.O.K has produced the copies of Mutation No, 2630 Ex.PW.2/1. It is stated by Patwari Helga that Muhammad Akbar s/o Syed Asghar has been recorded as owner whereas defendants are not recorded 'as such. However on the next date as he was directed to bring the record regarding ownership of defendant, he deposed that Defendant No, 1 is owner in the suit property and Defendants No, 2 & 3 are net recorded as such.
5. It is pertinent to mention that Khasra No, 15 Shamilat Deh is measuring 207 kanals, 17 marlas whereas Khasra No, 604 is ownership land measuring 21 kanals, 18 marlas. Admittedly both the parties have constructed their houses in the Shamilat property/ disputed property. The statement of PW.3 Bailiff was recorded who has inspected the spot in compliance of the Court order, prepared site plan and submitted his report. The witness has categorically stated that he has seen the house of plaintiff and there exists more than one access/paths. He also admitted as correct that on Eastern side of the house of plaintiffs, open place exists and towards Eastern side defendants have blocked the path of the plaintiffs. A look of the plaint would show that the plaintiff has given path on the Northern side of his house in his plaint. The Bailiff has further stated that on Eastern side path exists which is being used by both the parties ahead of which Afghan Muhajireen Camp is situated.
Both the parties uses this path known as Soka (dry water channel) which is the actual path of both the parties. Though it is not measured by him however its width is more than 200/250 feet. The Courts below have not considered this piece of evidence in true perspective though the plaintiffs have alleged that there is no access to his house however no cogent and independent evidence has been produced to this effect. He has admitted in cross-examination that all the houses including the house of the parties have been constructed in the Shamilat land. He has not produced any person of the locality in support of his claim rather opted to base his claim on his sole statement. On the other hand Defendant No, 2 was appeared as DW.2 who supported the version of the Bailiff to the effect that there are different paths lead to the house of plaintiffs which are three in number and plea of the plaintiffs that there is no access to his house, is totally misconceived. It is not the prerogative of the plaintiff to claim the easement of passage on the ground of convenience. Easement is always claimed on the property owned by the others which is not the case of plaintiffs as he claimed to be the owner in Shamilat. The easement of necessity is not allowed at the wish and whims of the plaintiffs, if other alternate access is available, though inconvenient. No claim can be entertained for easement of passage on the choice of the plaintiff.
Mere use of a path through, passing property would not bestow any right upon the claimant and owner of the property at any stage had the right to restrain the claimant from using the same. One Aksar Shah was examined as DW.2 who also supported the version of defence to the effect that defendants have not blocked the path of the plaintiff and there exists access/path leads to the house of plaintiff. Local Commissioner namely Ilyas Khan Advocate was appointed by the trial Court who was also examined as CW.1. However his report was not confirmed by the trial Court.
Lateron Mr. Khurshid Khan Advocate was appointed as Local Commissioner who submitted his report Ex.CW.2/1 and was also examined as CW.2, which has been relied upon solely by the Courts below to arrive at the conclusion in the matter.
6. Admittedly the suit property is Shamilat deh measuring 207 Kanals, 17 Marlas owned by numerous owners and none of them has been arrayed as party. This is also in the evidence that both the parties alongwith other are being constructed their houses in Shamilat Deh as owners. The huge property of Shamilat is in possession of all the owners and there are numerous paths/approaches to the property. It is not the case of the plaintiff that his Hissadari possession as owner has been distributed by the defendants. The only plea that the paths leading to his house, has been blocked by raising wall, has not been proved by cogent evidence.
7. The most important aspect of the case is that there is no Bandobasti path in Shamilat Deh nor the revenue record speaks about the existence of any path on the spot. The owner of the Shamilat in possession of their respective share are using property for their residential purpose as well as paths which are not evident from the record therefore, the burden squarely lies upon the plaintiff to prove that he has any right to the disputed path in exclusion to the others including defendant.
Admittedly there is no such evidence available on file. Mere opinion of the Local Commissioner which is not binding upon the Court would not bestow any right upon the plaintiff to claim ownership and use all paths in exclusion to the others especially when they are not party to the suit. Similarly no decree with regard to the path can be granted in favour of the plaintiff against the defendants and especially other owners who are not before the Court. It is not the case of private ownership rather pertains to Shamilat Deh wherein all the owners are necessary parties and in their absence no effective decree can be passed regarding ownership qua possessory rights and the concurrent findings of Courts below were not based on true appreciation of evidence and correct appreciation of law on the point. The learned Courts below have not decided the lis pending before them with conscious and application of independent mind which are not sustainable. Needless to mention that the plaintiff as to stand on his down legs and could not be given benefit out of the weakness of defence, if any, as the burden squarely lies upon him to prove the case which is lacking in the instant case due to deficient evidence available on file.
' For the aforesaid reasons, I allow this petition alongwith CM, set aside the impugned judgments and decrees passed by the Courts below and consequently dismiss the suit of the plaintiff.
(R.A.) .