SHAHID BILAL HASSAN J. Facts, in precision, are as such that the petitioners instituted a suit for declaration with permanent and mandatory injunction claiming their easement right of usage of passage passing through Square No.6, Killas No.1 and 10, allegedly to be in their use for the last 30/35 years, whereas the respondents No.1 and 2 have restrained them from using the said passage, for which they (respondents No.1 and 2) have no right to do so.
The suit was resisted by the respondents No.1 and 2, who while submitting written statement have controverted the averments of the plaint. The divergence in pleadings of the parties was summed up into issues and evidence of the parties was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 25.02.201 1 dismissed suit of the petitione rs, who being aggrieved of the same preferred an appeal there-against but it was dismissed vide impugned judgment and decree dated 30.03.2012 by the learned appellate Court; hence, the instant revision petition.
2. Heard.
3. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to present something being done, in or upon, or in respect of, certain other land not his own.
The land for the beneficial enjoyment of which the rights 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 .
The essential qualities of an easement generally are:
(1) it is incorporeal;
(2) it is imposed on corporeal property and not on the owner of it;
(3) it confers no right of share in the profits from such property;
(4) it is imposed for the benefit of corporeal property;
(5) it involves two distinct tenements, the one which enjoys the easement, that is, to which the easement belongs or to which it is attached, called the 'dominant tenement' or 'dominant estate' and the other on which the easement rests or is imposed, called 'the servient tenement' or 'servient estate'.
Moreover , the following conditions must be fulfilled for the acquisition of a right of easement by prescription:
(i) The right claimed must not be uncertain.
(ii) The right claimed must have been enjoyed.
(iii) It must have been enjoyed (a) peacea bly, (b) openly , (c) as of right, (d) as an easement, (e) without interruption,
(f) for twenty years or sixty years, if the right is claimed against Government.
Out of the last six sub-conditions, (b) and (c) are not necessary in the case of easement of light and air or support.
With this exception, all the conditions and sub-conditions must be fulfilled before the right of easement is acquired.
In the present case, the petitioners, however , have failed to established by leading cogent, trustworthy and confidence inspiring evidence that they have been using the disputed path continuously and have been enjoying the right of easement over the same for the last 30/35 years rather it has surfaced on record that the respondents/defendants demolished the said passage around 25.03.2006, meaning thereby the alleged use of passage by the petitioners/plaintif fs is near about 16 years, so the petitioners cannot claim the accrual of right of easement in their favour , because it is the pre-requisite of law, as hinted above , that the right (passage in the present case) has to be enjoyed by a person continuously and without any interruption for a period of 20 years, there-after he can claim such right of easement. Right of way through easement does not mature if the right of way is not used for a period of twenty years as has been held by this Court in judgmen t reported as Haji Abdul Sattar v. Haji Muhammad Bakhsh through Legal Heirs (2017 YLR Note 9). Further reliance can safely be placed on Abdul Khaliq alias Mithoo v . Moulvi Sher Jan and others ( 2007 SCMR 901 ).
4. Apart from the above, the P.W.4-Ajmal Tahzeeb in the beginning of his deposition has deposed that there is a passage to his land from Muridke Sheikhupura road bearing square No.3, Killa Nos. 10.11. 20 and 21 beside the disputed passage. When the position is as such that the petitioners have an alternate way and they could not establish their continuous usage of pass age for a period of 20 years, they have rightly been non-suited by the learned Courts below concurrently . In Hafiz Riaz Ahmad and others v. Khurshed Ahmad and others (2013 MLD 947 Lahore) , it has been held:- '9. Under the easement Act (V of 1882), to prove a right of easement by prescrip tion mere user for innumerable years does not confer prescriptive right of easement. Under section 15 of the Easement Act (V of 1882) this right must be peaceably openly enjoined by any person claiming title thereto, as an easement and as of right without interruption for 20 years. In case in hand, it is evident that defendants remained in possession of land owned by the plaintiff respondent No.1 as Mustajar/contractor , including the land in dispute. Even otherwise the Constitution of Islamic Republic of Pakistan gives a right to hold and enjoy the property to a person. These rights are sacrosanct which have to be protected as fundamental rights. No person including the neighbour could be allow to diminish the rights in order to enjoy use of his property , as 'rights to assert the property have been protected under Articles 23 and 24 of the Constitution. If any person claims any right of easement, he is bound under the law to prove without any discrepancy his right in accordance with law. In case in hand, the petitioners-defendants miserably failed to prove their right of easement by prescription as well as the proof of right of easement as necessity . In case of necessity it is the duty of the plaintiff that he must prove that if this right of easement claimed by a claimant is not given to him his property will be ruined for which he is claiming right of easement. In case in hand, it is admitted on the record that there is also another road available which lead to the property of petitioners-defendants, therefore, this right of necessity is also not available to the petitioners.' (underline for emphasis)
There appears no misreading and non-reading of evidence on record on the part of the learned Courts below alleged to have been committed while passing the impugned judgments and decre es, rather the evidence brought on record by the parties has minutely been scanned and flicked through.
5. In view of the above, the learned Courts below have rightly non-suited the petiti oners, concurrently and as such concurrent findings on facts cannot be disturbed when the same do not suffer from misreading and non-reading of evidence, howsoever , erroneous in exercise of revisional jurisdiction; reliance is placed on Mst. Zaitoon Begum v.
Nazar Hussain and another (2014 SCMR 1469 ), CANT ONMENT BOARD through Executive Officer, Cantt.
Board Rawalpindi v. IKHLAQ AHMED and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held:- 'There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630 ) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
6. Pursuant to the above, when there appears no illegality and irregularity as well as wrong exercise of jurisdiction, the revision petition in hand being without any force and substance, stands dismissed. No order as to the costs.