This is an application under Order XXXIX, rules 1 and 2, C. P. C. Moved on behalf of the five plaintiffs seeking interim injunction against defendant No. 1 from raising construction on plot No. R. C. 12/37/B, Ranchore Road, Bohrapir, Karachi, pending the disposal of the suit.
2. This suit has been filed for declaration and permanent injunction. The case of the plaintiffs in the plaint is that the five plaintiffs reside in houses near the Pakistani Akhara since after Partition but from a date prior to 1951. This Pakistani Akhara was located on plot No. R. C.-12/37-B, Ranchore Road, and was known as Jain and Y. M. Shala prior to Partition and after the creation of. Pakistan it became known as Pakistani Akhara managed by defendant No. 1 as a wrestling arena and also for physical exercises by the wrestlers and other residents of the Mohallah. The plaintiffs have averred in the plaint that the plot was of temporary nature where no cons--truction of permanent nature could be raised. According to the plaintiffs no construction had been raised on this plot, and the five plaintiffs who reside in constructed houses adjacent to this plot have enjoyed the easement rights of light, air, and privacy and it is in the month of April/May, 1,80 that defendant No. 1 started construction on this plot. As per the plaint in the beginning the defendant No. 1 orally informed the people that it would be a ground for wrestling purposes only but then it became clear that defendant No. 1 was raising more than two storeys that is ground plus two floors. The suit was filed on 19-6-1980 and at the time of filing of the suit, according to the plaintiffs, construction of the ground floor had been completed and pillars of the first floor had been erected and thereafter the defendant No. 1 was going to raise further construction. Photographs have been filed alongwith the plaint showing the state of construction. A further grievance of the plaintiffs is that the construction has been carried on without obtaining necessary no-objection from the neighbours including the plaintiffs and the construction accordingly is in violation of the terms of the approved plan.
Plaintiffs further allege that windows on the first floor, 2nd floor, and 3rd floor of the construction being raised by defendant No. 1 would materially affect the right of the plaintiffs.
3. By an order dated 19-6-1980, ad interim injunction was granted to the plaintiffs in terms of their application: Defendant No. 1 has filed a counter-affidavit supported by the building plan as well as the approval dated 17-7-1979 accorded by the Authority under the Sind Buildings Control Ordinance, 1979 and also a copy of the judgment dated 27-10-1975 of the High Court of Sind & Baluchistan passed in Const. Pet. No. 414,71 filed by the defendant No. 1 and another person against the Custodian, Evacuee Property and K. M. C. By which Judgment the High Court restored the transfer of property No. R. C. 12/37-B, in favour of defendant No. 1 and his associate.
4. I have heard Mr. Hyder Ali Pirzada, counsel appearing for the plaintiffs and Mr. Azhar Ali Siddiqui, who appears for defendant No. 1. Mr. Yakoob Beg had appcared for the defendant No. 2 and Mr. Muslim Naqvi for defendant No. 3 but they stated that they would not advance any argument on the injunction application and this application may be decided on hearing the learned counsel for the plaintiffs and defendant No. 1.
5. It is an admitted position that the houses of the plaintiffs are constructed on the footpath.
According to Mr. Hyder Ali Pirzada, the plaintiff's have been residing in houses adjacent to the plot of defendant No. 1 for 'over 20 years and for all this period no construction has been raised thereon, the same being used as an open plot for wrestling and physical exercises. In these circumstances, according to the counsel, the plaintiffs have acquired rights of easement in respect of light, air, and privacy under sec--tions 4 and 15 of the Easements Act, 1882. His further argument was that the plan which had been sanctioned in favour of defendant No. 1 by defendant No. 2 Authority made a specific mention that easement was a matter between the concerned parties implying thereby that if any neighbour had acquired any easement, the building should not be constructed without his permission and as permission had not been taken by defendant No. 1 from the plaintiff's the entire construction that was being raised is without authority and against the specific terms of the approval of the plan.
6. A question had been raised by order dated 9-8-1980 that the plaintiffs bad constructed their houses on footpath and being trespassers and un. Authorised occupants having constructed unauthorised houses prima facie they could not acquire any rights of casement in view of section 4 of the Easements Act.
7. Mr. Azhar Ali Siddiqui in reply to the contentions raised by Mr. Hyder Ali Pirzada advanced the following arguments
(a) The suit itself is not maintainable as there are five different plaintiffs each having a separate cause of action.
(b) Section 4 should be read with section 12 of the Easements Act and, therefore, it is only an owner of the property and not an occupier or trespasser who could acquire the rights of easement.
(c) No document had been filed by the plaintiffs to prove their possession and enjoyment of rights of easement for a period over 20 years as required under section 15 and there was no averment in the plaint or in the affidavit on behalf of the plaintiffs about the dates when plaintiffs constructed their houses and, therefore, prima facie they have not acquired any rights, under sections 4 and 15 of the Act of 1882.
8. As regards the first objection on my question that in case five seta of court-fees were paid in this suit whether he would still be in a position to maintain his objection. Mr. Azhar Ali Siddiqui frankly conceded that in such case he would not be in a position to sustain his objection. The question whether one set of court-fee or five sets of Court-fees are payable will be decided at the appropriate stage and, therefore, this objection is of no sub--stance at this stage while deciding the application for temporary injunction.
9. As regards the second objection learned counsel for the plaintiffs has referred to a judgment of this Court in the case of Syed Azizuddin v. Islamuddin (PLD 1971 Kar. 701). While deciding a revision application, Dorab F. Patel, J., observed, after referring to the various provisions of the Easements Act including sections 4 and 12 and also to certain decided cases by superior Courts, that the point whether a trespasser could acquire rights of easement was not free from doubt. In order to appreciate the arguments of the learned counsel for both the parties reference has to be made to sections 4 and 15 of the Easements Act, 1882, which ate reproduced here :_ "Section 4.-"Easement" defined. An easement is a right which the owner or occupier of land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon or in respect of, certain other land not his own.
Dominant and servient heritage and owner. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation.-In the first and second clauses of this section the expression "land" includes also things permanently attached to the earth ; the expression "beneficial enjoyment" includes also possible convenience, remote advantages and even a mere amenity ; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.
Illustrations
(a) A, as owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoy--ment of the house. This is an easement.
(b) A, as the owner of a certain house, has the right to go on his neighbour B's land, and to take water for the purposes of his household, out of a spring therein. This is an easement.
(c) A, as the owner of a certain house has the right to conduct water from B's stream to supply the fountain in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house himself, his family, guests, lodgers and servants, water or fish out of C's tank or timber out of D's wood, or to use for the purpose of manuring his land, the leaves which have fallen from the trees on E's land. These are easements.
(e) A, dedicates to the public the right to occupy the surface of certain land for the purpose 9 of passing and re-passing. This right is not an easement.
(f ) A, is bound to clean a watercourse running through his land and keep it free from obstruction for the benefit of B, a lower riparian owner. This is not an easement."
Section 12.-Who may acquire easements. An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same: One of two or more co-owners of immovable property may as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property comprised in his lease."
10. According to Mr. Hyder Ali Pirzada in section 4 the word "occupier" has been used and as the word "occupier" would include an unauthorised person in occupation or even a trespasser, the plaintiffs can acquire easement rights. If only section 4 is seen in isolation, prima-facie this contention has great force but if sections 4 and 12 are read together, and this, is the precise argument of Mr. Azhar Ali Siddiqui in this behalf, the interpretation which learned counsel for the plaintiffs wants the Court to put is no longer easily acceptable. It is in this context and for supporting his contention that Mr. Hyder Ali Pirzada relied upon the judgment of Dorab F. Patel, J referred to earlier. He specially invited my attention to the following passages at pages 704 and 705 of the judgment reported in PLD 1971 Kare 701 :- "The applicant has based his claim in the suit on the Easements Act, but at the outset I have to point out that both he and the respondent are squatters on Government land, having entered it without the Government permission. As I was dictating this order, Mr. Dodani stated that the applicant was paying taxes to the K. M. C. As the land which he has occupied belongs to the Government and not to the K. M. C. The payment of taxes to the K. M. C. Is completely irrelevant.
Both the applicant and the respondent are, therefore, trespassers, and the obvious question for consideration is whether a trespasser can invoke the provisions of Easements Act.
Mr. Dodani submitted that the applicant was entitled to file a suit under the Easements Act and referred me to the definition of an easement in section 4. This section defines an easement as "a right which the owner or occupier of certain land possess." According to Mr. Dodani, the applicant was an occupier within the meaning of section 4, therefore he was entitled to file -the suit. I agree.
With learned counsel that the word "occupier" can include a trespasser, but the submission is advanced with reference to land which has admittedly not acquired any easement, therefore, if in such a situation, the word "occupier" is constructed to include a "trespasser" it will put a premium on wrong doing and lead to injustice, and such a construction is to be avoided unless the intention of the Legislature is very clear. But the section deals only with easement rights possessed by an occupier, and a trespasser on land, which has not acquired any easement, cannot possess any easement rights by the mere fact of his illegal occupation of land, because the prescriptive period for acquiring an easement is 20 years, which is much longer than the prescriptive period for acquiring title to land by adverse possession. Additionally section 4 must be read with section 12, which deals with the manner in which easements are created. Section 12, in so far as it is relevant, reads as follows :- "An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created or on his behalf by any person in possession of the same.
The words `or on his behalf' are significant and would be redundant if the word `occupier' in section 4 was were enough to include a trespasser. On the other hand, these words clearly indicate that when an easement is acquired by a person other than the owner that other person must claim through the owner. As the two sections have to be reconciled, this appears to me to be a circumstance, which militates against Mr. Dodani's argument. Additionally, as there is an ambiguity in the statute, it is not irrelevant to point out that the six illustrations to section 4, as well as the illustration to section 32, on which the learned counsel relied, relate only to owners.This is another circumstance against Mr. Dodani's construction of the word `occupier'. Learned counsel then submitted that his argument was supported by a judgment reported in Dayal v. Gajju Mal. This judgment contains an observation that a trespasser is entitled to claim an easement, but as the learned Single Judge has neither considered the provisions of the Easements Act nor given any reasons for his view, the Judgment is not of any assistance. However, the question is not free from doubt, and as Mr. Khurshid satisfied me that the revision must fail on other grounds. I do not need to decide this question."
11. I am in respectful agreement with the observation at the end of the passage quoted in the previous paragraph that this is a matter, which is no free from doubt. For the purposes of deciding the injunction application I am of the view that this is an arguable point.
12. As regards the third objection raised by Mr. Azhar Ali Siddiqui the plaintiffs have alleged in the plaint and in their affidavit that they have been in possession of neighbouring houses for nearly 30 years.There is a bar denial of this in the counter-affidavit by defendant No. 1. Defendant No. 1, it is alleged, has been in occupation of his plot since 1949 and a bare denial of the occupation of the plaintiffs would not prima facie demolish the case of the plaintiffs that they have been residing in their respective houses for over 20 years. Defendant No. 1 could have filed a counter-affidavit specifying the period during which each plaintiff had been in occupation. It is not the case of defendant No. 1 that the plaintiffs ace strangers and not occupying their houses. In the circumstances prima facie I am of the view that the objection raised by defendant No. 1 cannot be sustained.
13. Mr. Azhar Ali Siddiqui then argued that his client's plan was approved as far back as July, 1979 and then he started construction in January, 1980 and it is after nearly six months that the present suit was filed when the ground floor had been completely constructed by defendant No. 1 and pillars and root' had been set up/laid on first floor.' No notice or document, through a Lawyer or otherwise, has been filed with the plaint to show that any objection had been raised by the plaintiffs from January, 1980 to June, 1980. According to Mr. Pirzada the construction was started in April/May, 1980. Prima facie, however, I agree with learned counsel for defendant No. 1 that construction must have started much earlier than April/May, 1980, so as to reach the stage of construction of the building at the time of the filing of the suit. According to Mr. Azhar Ali Siddiqui as soon as construction had been started, plaintiffs should have taken action but now that the ground floor has been completed and first floor is also nearing completion, plaintiffs should not be granted interim relief as they have come to the Court very late. Additionally he contended that when the present suit was filed, the construction on the plot of defendant No. I had reached such an advanced stage that whatever rights the plaintiffs had as regards light and air the same had already stood nullified, and neither there was any prayer for demolition of the already raised structure nor the Court would even otherwise pass an interim order for demolition at this interlocutory stage of the suit. Learned counsel, therefore, contended that on this ground alone the temporary injunction application was liable to be rejected.
14. I agree with the counsel for the defendant No. 1 that on the present frame of the suit and on the present application an order in favour of the plaintiffs for demolition of the already raised structure cannot be passed. I further agree with him that easement rights, if any, of the plaintiffs as regard: light and air in respect of their houses, prima facie, already stood nullified by the structure raised by defendant No. 1 prior to the filing of the above suit. To the extent this temporary injunction application relates to the alleged rights of light and air, it has become infructuous.
15. The only other right asserted by the learned counsel for the plaintiffs is the right to privacy have already held that prima facie the plaintiffs have been in occupation of their respective houses for 20 years and further it is an arguable point whether a trespasser or unauthorised occupant can acquire rights of easement. I also hold that prima facie the building beyond ground floor on the plot of defendant No. 1 will, if there are windows or openings, on the side of the plaintiffs' houses, interfere with the rights of privacy of the plaintiffs and their families. The defendant No. 1 has on the other hand an approved-plan with the sanction to build ground floor plus three storeys with the condition that easement was a matter between the con--cerned parties. Mr. Azbar Ali Siddiqui has given an undertaking that in case the suit is finally decided against the defendant No. 1, he will demolish the structure beyond two floor, i. e. Ground and first floor.
16. In the circumstances and in view of the above unconditional under--taking given on behalf of defendant No. 1. This application (C. M. A. 2741/80) is disposed of in the following terms : -
(i) On the unconditional undertaking given by defendant No. 1 that in case this suit is finally decided against him he will demolish the construc--tion beyond two floors (i. e. Ground and first floor), defendant No. 1 is permitted to complete the construction on this plot in accordance with the approved plans but neither on the first floor nor on any other upper floor there will be any opening on the side of the plaintiffs' houses to protect the rights of privacy of the plaintiffs. In case there are many provisions in the approved plans for doors, windows or other openings on the side of the plaintiffs, the same will be closed till the disposal of the suit.
(ii) The defendant No. 1 is restrained from giving possession of the build--ing beyond the first two floors (i.e. Above the ground and first floor) to any person on lease, licence, ownership basis or otherwise, till the final disposal of the suit. This restriction is placed on the defendant No. 1 so that no complication arises in case the building beyond the first two floors is to be demolished.
(i.e) There will be no order as to costs.
17. Delay in the disposal of the suit will not only be to the detriment of both parties but will seriously prejudice several parties who may have booked premises in the building of defendant No. 1.
Defendant No. 3 has already filed written statement. Defendants Nos. I and 2 are directed to file their respective written statements within three weeks. The case will be fixed for issues in Court during October, 1980.