WIQAR AHMAD, J.---- Through this single Judgment, I intend to decide Writ Petition No.3547-P/2018, titled above and Civil Revision No.347-P/2019 titled "Tahir and others v. Hafiz-ur -Rehman and another " as in these two petitions, common question of law and facts are involved.
2. The respondents/plaintif fs instituted a suit for declaration of right of ownership in respect of the one marla land described fully in the plaint along with consequential relief against the petitioners/defendants before the civil Court at Peshawar . Petitioners were summoned by the learned trial Court. Accordingly , they appeared before the Court and submitted their written statement. The learned Trial Court, after framing of issues, recording evidence and hearing arguments of both the parties, decreed the suit in favour of the respondents Nos. 1 and 2 vide Judgment dated 31.10.2013. Aggrieved from the said Judgment of the learned Trial Cour t dated 31.10.2013, petitioners preferred appeal before the learned appe llate Court below , which was dismissed vide Judgment dated 05.07.2017 of the learned Additional District Judge-IX, Peshawar , however , as no other alternate passage was available to the entrance of petitioners' house, the learned Court allowed the petitioners to use the passage for entrance and exit till an alternate arrangement is made by the petitioners. Feeling aggrieved from the Judgment of the learned Appellate Court dated 05.07.2017, respondents filed a review petition, which was allowed vide Judgment dated 26.06.2018.
The review of the respondents was accepted by way of the impugned Judgment and the order dated 05.07.2017 was modified to the extent that the petitioner was given a maximum time of one year for making the alternate arrangement of passage for his house. However , the petitioner could not impugn the Judgment dated 05.07.2017 in the given time and then filed Civil Revis ion No.347-P/2019 after a delay of about 21 months. The review order dated 26.06.2018 has however been assailed in the writ petition.
3. Learned counsel for the petitioners argued the whole case and placed particular reliance upon deed dated 28.07.1971, whereby . the predecessor in interest of the plaintif fs/respondents herein, had agreed to leave 6 x 45 feet wide area for the use of thoroughfare for the plot of predecessor in interest of the petitioners. He contended that the said deed had wrongly been held as not proved by the learned two courts below . He also placed reliance on the report of the local commission, appointed by the learned Appellate Court during proceedings of Civil Appeal No.4/13 of 2014 decided on 05.07.2017 and submitted that the report of the local commission had been accepted by both the parties and therefore, carried great weight. He added that the house of the petitioners had no alternate passage and if the area in dispute is blocked, then house of the petitioners would be cut off and they would stand incarcerated. He relied on the provisions of the Easement Act, 1882 for fortifying his submissions.
4. Learned counsel for the respondents raised objection on the maintainability of the Revision petition and stated that same is badly time barred. He also raised an objection towards the maintainability of the Writ Petition and submitted that since remedy of revision was provided by the law, therefore, Writ petition was not maintainable. He further stated that the petitioners have not filed any revision against the first order of the learned Appellate Court dated 05.07.2017 in time, therefore, they could not agitate their grievances against the findings recorded therein and that the scope of present debate should be limited to the review order dated 26.06.2018 only .
5. In rebuttal, the learned counsel for the petitioners requested that his Writ petition may be considered as Civil Revision petition and treated accordingly . He also prayed for condonation of delay in his Civil Revision No.347- P/2019.
6. I have heard arguments of the learned counsel for the parties and perused the record.
7. The order impugned by way of filing Writ Petition was passed on 26.06.2018, against which, the instant Writ Petition has been filed on 12.07.2018. The order should have been impugned by way of Civil Revision which was impugned by filing the instant Writ Petition but if the Writ Petition is considered as Revision then same would be within time. It has been held in the case of "Shabbir Hussain v. Chief Settlement and Rehabilitation Commissioner " reported as 1970 SCMR 44 that a Writ petition may be considered as. Revision filed under C.P.C.
Reliance is also placed upon the cases of "Capital Development Authority , Islamabad v. Khuda Bkhsh " reported as 1994 SCMR 771 and "Shamsul Haq v. Ghoti " reported as 1991 SCMR 1135. The Writ Petition in hand is therefore converted into Civil Revision and will be disposed of accordingly . Office is directed to make necessary entries in the record.
8. It had concurrently been held by the learned two courts below that one marla area in dispute is the property vesting in the predecessor in interest of the plaintif fs/respondents herein, the title of which, has been transferred to them finally . It also stands proved on the record that petitioners have been using the property in dispute as passage to their house for a very long time.
9. The respondents have stated in their plaint that they had left a specified area of one marla i.e. property in dispute out of their constructed house for their personal use. While recording statement as PW-2, the plaintif f has given the following statement in respect of the property in dispute:- {{ URDU TEXT}}
10. In his cross-examination at page 4, he has given the following statement:-- {{ URDU TEXT}}
11. It thus stands proved from the statement of PW-2 that the house had been constructed by one Tariq Pasha and not the plaintif fs. The said person, namely Tariq Pasha, who was predecessor in interest of the plaintif fs, had left the property in dispute out of his house . The plaintif fs have their windows etc installed towards the property in dispute but the main gate of their house is lying towards the thoroughfare of the main street to which the property in dispute also opened separately . It is also in the evidence that Tariq Pasha sold the property in dispute to PW-2 in the year 1993. The other evidence recorded in the case also goes in support of the above mentioned facts. It is also proved on record that the defendants have been using the area in dispute as thoroughfare since a very long time. The plaintif fs have tried to explain the said usage of the defendants by stating that they forcibly fixed their gate towards the property in dispute and brought it in their use during pendency of the suit but the evidence recorded in the case do not support the plaintif fs in that respect. On record there is no evidence that the plaintif fs have ever lodged any FIR or complaint against the defendants for the forcible occupation by the latter . From the contents of the plaint, it is clear that the property in dispute have been left out of the constructed house of the plaintif fs by predecessor in interest of plaintif fs. In the evidence it is established that defendants have been using it for quite long time. While cross-examining the DW-1, no question or suggestion had been put to the witness regarding their forceful occupation of the property in dispute. The cross-examination and answers given by the said witness also suggests the existence of a thoroughfare and it appears that the learned counsel for the plaintif fs/ respondents Nos.1 and 2 had only been disputing the purpose of open space and not its existence. Relevant pars of the cross examination of DW -1 is reproduced for ready reference:- {{URDU TEXT}}
12. The report of the local commission is also very important in this respect as we find an ample description of the situation existing on the spot in narrative as well as in the form of a stretch prepared by the local commission and annexed with his report. From the concluding two para(s) of the local commission as well as evidence discussed above it appears that the area in dispute has been in use of both the parties i.e. the plaintif fs side have been using it for installation of gas and electricity meters, water pump etc while defendants have also been using the said area as a passage for long time.
13. It has also been held by the learned two Courts below that the area in dispute is proved to be ownership of the plaintif fs. I do not entertain any doubt in respect of the said findings of the learned two Courts below as well I also purposely avoided discussing the documents or deed dated 28.07.1971 as the learned two Courts below had held the same not to have been proved and the petitioners could not file a revision petition against the said findings in time. Thus the following facts stood proved on record: - a. That the property in dispute is the ownership of the plaintif fs. b. Defendants have been using it as thoroughfare for a very long time. c. That the defendants do not have any other passage for entry to and exit from their house.
14. It was due to these facts that the learned Appellate Court vide its order dated 05.07.2017 allowed the appellants to use the property in dispute as a passage to their house till an alternative arrangements is made by them. The said order was reviewed by the lower Appellate Court, which order is the subject matter of the present adjudication before this Court.
15. The learned lower Appellate Court while passing the first order dated 05.07.2017 had not made reference to any legal provisions but the proved facts made it a case of easement. It was clearly the case of easement of necessity as laid down in Section 13 of the Easements Act, 1882. Since revision has not been filed against the order dated 05.07.2017 of the learned Appellate Court in tithe, therefore, I am not inclined to interfere in the said order but for the purpose of adjudication upon the review order , the said explanation is necessary so as to find the true intent and effect of the order dated 05.07.2017 of the learned Appellate Court. It is apparent from the entire record, as discussed above, that the alleged passage for the house of the petitioners was an absolute necessity . It was not a mere matter of convenience for the enjoyment of the property of the petitioners. Without this passage, the petitioners would not be able to enjoy his property and thus the requirement for establishing a right for easement of necessity as provided in Clause (a) of Section 13 of the Easements Act, is fulfilled in the case in hand.
Reliance in this respect is also placed on cases titled "Pakistan Warranted Warehouse Limit ed v. Sindh Industrial Estate " reported as 1991 SCMR 119, titled "Abdul Hamid Shah v. Muhammad Yar reported as 1991 PLD 815 Supreme Court and titled " Noor Muhammad v . Mst. W ilayat Khatoon " reported as 2002 SCMR 1294 .
16. In the review order , the learned lower Appellate Court has given a maximum period of one year to the petitioners for making an alternate arrangement of access to their house. While passing the impugned order in review , the learned Court failed to take into account the fact that the commission report had clearly concluded that the disputed passage was the only access to the petitioners' house. The site plan annexed with the commission report may have escaped the attention of the learned Court while passing the revie w order , wherein no prospect of alternate arrangement appears to be feasible. Same is the situation emerging from reading other evidence in the case also. While passing the review order , the effect of the original order have been reversed vis-a-vis granting of easement to the petitioners. While doing so, the Court passing the review order has also transgressed the limits of review jurisdiction. In the opinion of this Court the granting of right of way to the petitioner was not a mistake but a deliberate and considered decision of the Court which has unjustifiably been reversed in review . While passing the review order , the learned Court has changed original order drastically and reversed its entire effect vis-a-vis the grant of easement of necessity .
17. For what has been discussed above, the Civil Revision petition converted from Writ Petition No.3547-P/2018 is hereby allowed and resultantly order dated 26.06.2018 of the learned Additional District Judge-IX, Peshawar impugned in the instant case, is set aside.
18. Civil Revision Petition No.347-P/2019 is barred by 21 months. The main reason put in the application for condonation of delay is that since the respondents had impugned the Judgment passed in appeal by filing a review application, therefore, the petitioners were under a miss-conception of law and could not file revision petition in time. The said reason, I am afraid, is not at all valid reason for condonation of delay the application for condonation of delay is therefore dismissed. Resultan tly, CR No.347-P/2019 k found to be barred by law of limitation, same is also dismissed accordingly .