' The appellant assails the judgment and decree dated 22nd June, 1972 passed by the learned District Judge, Jhelum. He accepted the appeal filed by respondents and set aside the judgment and decree of the trial Court by which the suit of the plaintiffs had succeeded.
2. Briefly, the facts of the case, leading to the present proceedings, are that the plaintiff's had built their houses towards the west of the land of the respondents. According to them they had been using a 6' wide path over the land of the respondents to reach their houses, for more than 50 years.
The respondents, thereafter, raised a wall on the entire front of the house of Fazal Karim appellant and also constructed a room just on the alleged path so as to deny them entry to their property.
The appellants, therefore, filed a civil suit for a permanent and mandatory injunction to restrain the respondents from interfering with their right of passage, on the ground that they had acquired an easement of prescription as well as of necessity.
3. The respondents contested the suit. The trial Court recorded the evidence led by both the parties with regard to the four issues framed and decreed the suit holding that the plaintiffs had the easement of necessity as well as easement by prescription under Issues 1 and 2. He also decided the Issue No, 3 against the respondents to say that the plaintiffs were not estoppel to institute the suit. The lower appellate Court came to the conclusion that no easement of necessity arose in the facts and circumstances of the case. He also decided Issue No, 2 against the plaintiffs holding that they had no right of way as alleged in the plaint.
4. The learned counsel for the appellant did not press the issue about easement of necessity, though during his arguments, he remarked once that there could have been an easement of necessity also, in view of the statement of one of the witnesses. His main emphasis was on Issue No, 2, which is : "Whether the plaintiffs have the right of way as alleged in the plaint?" Para. No: 2 of the plaint reads :- {{URDU TEXT}}
5. It is contended that as all the plaintiffs as well as the defence witnesses clearly stated that the plaintiffs had been using the said path for more than 20 years and that there was no other alternate passage, the prescriptive easement rights of the plaintiffs has been established. The learned counsel also relied on the report of the Local Commissioner, Wherein he concluded that the appellant Np. 1 had been using the 6' wide passage for the last about 30/40 years and the appellant No, 2 for 10 years. According to him, the drains of the appellants also flowed towards the same side. Both the passage and the drain had been obstructed by the construction of room ABCD, depriving the appellants of the only nearest and most convenient passage.
6. The learned counsel for the parties also took me through the entire evidence. The anxiety of the learned counsel for the appellants was to show that his clients had been using the said passage uninterruptedly for more than 20 years and that there is no other alternate passage which they can use. The learned counsel for the respondents emphasised particularly that according to Mangoo Khan (P. W. 2) and D. Ws. 2 to 4, the plaintiffs had been using the passage not over the land of the respondents (eastern) but on the southern side. This can be seen on the plan Exh. C. W. 1/2 prepared by the Local Commissioner. The said passage though not marked as such, is shown by the two-double lines on the southern side of letter 'E' and it lies on the eastern side of the house of Nazar Hussain plaintiff.
7. It is proved on record that the portion F. G. As shown on the plan of the appellants, filed with the plaint, has been blocked by the respondents by raising a room against it. According to P. W. 1, it had been closed 2 years before and the appellants being left with no passage have since then been using a ladder to go out of the house of their nephew Muhammad Hanif. They are said to have sold their cattle also. This witness denied having seen any `Katcha' old room built on the spot F. G. Fazal Karim appellant appeared as P. W. 3 to depose that they had been using the path, which the respondents closed about 24 years before, for about 50 years. According to him, he was using ladder to go to the house of appellant No, 2 and outside. He denied that there is any street on the south of the house of Nazar Hussain but admitted that there is a street from village Jahangir on the east of the vacant site.
8. Nazar Hussain D. W. 1 (not the appellant) deposed that there was a Katcha room 10-15 years old at the disputed path and the respondents built a pacca one there, after demolishing it. According to him, the appellants never had any passage on the land of the respondents but on the southern side. They had been passing from the house of Nazar Hussain appellant, on the vacant land and to the public street. The appellants have no passage apart from those mentioned. Ghulam Muhammad (D. W. 2) a mason, deposed that respondents had a Katcha room at the spot and he built for them a pacca room without any protest from the appellants. He further stated that doors of the houses of the appellants were on the eastern side but there was no street that way. They had broken a wall and were passing over the land of Nazar Hussain and have no other . Passage. D. W. 3 Rabman corroborated the D. W.
2. Muhammad Ashiq (D. W. 4) stated that the passage to the houses of the appellants is on the southern side. He said in his cross-examination that there was a street on the southern side of the houses of the appellants but they have been passing over the land of the respondents as their wall had fallen on this side.
9. Mangoo Khan (P. W. 1) deposed that the house of Fazal Karim appellant was 40/45 years old and that of Nazar Hussain 20/22 years. The disputed passage was a vacant site and so the appellants were passing over it but it has been closed by the respondents by raising a room and a wall over it.
He further added that there was no other passage left and they were using ladder from the house of Hanif. He explained the various other properties near the spot and disclosed that there was a street in front of the house of Sadiq which is situate on the southern side of the house of Nazar Hussain appellant. According to him the appellants were using that street to go the village before the disputed passage was closed.
10. The trial Court had also appointed a Local Commissioner to go to the spot and report on the application dated 15th November, 1968 of the appellants filed for the purpose. It was stated in that application that the respondents had illegally built a wall opposite their houses and closed their passage leaving no other outlet. The report of the Local Commissioner concluded that "The plaintiffs have been using the passage at E. G. About 6 ft. Wide. The drain for rain and well water also flows towards the same direction i,e, east. This passage has now been obstructed through the construction of room ABCD by the defendants.
(2) It is the only nearest and most convenient passage for going to the village abadi towards the north.
(3) Plaintiff Fazal Karim has been using the passage for the last 30/40 years, whereas his brother Nazar Hussain has been using it for the last 10 years."
11. The learned counsel also referred to the case-law, the relevant of which may be mentioned. In Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar an I others, the Court held that in a case in which a right of way is claimed over certain land and defendants deny the existence of any such pathway, it is necessary that the location of the alleged pathway should be ascertained by a local investigation. It was held in Abdul Gaffar alias Sona Mia v. Abdus Sattar and another, that the basis of the right of easement by prescription is user of another man's land without any right till the user is ripened into a right by prescription. It is in the nature of an adverse possession though it does not partake of the character of adverse possession. In one case, the easement originates from a legal right, namely, grant, and in another case the right of easement accrues from user as of right, which means an adverse exercise of right as against the servient owner. The Court observed that "as of right" does not mean "rightfully" or an enjoyment without trespass and under a strict legal right but it refers to enjoyment by a person under a claim or an assertion of right. It went on to say that the acquisition of right may commence with an act which may be a pure act of trespass but the enjoyment, though it may continue to be a trespass, may nevertheless, be "as of right" so as to ripen into a prescriptive title.
12. In Raychand Vanmalidas v. Mankelal Mansukhbhai, it was thought necessary to prove that if the right was exercised as an easement, it is necessary to establish that it was exercised on somebody else's property and not as an incident of his own ownership of that property. Further, that it should be done consciously, treating it as somebody else's property, so as to establish that right as an easement. The learned Judge went on to say that in any case, it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else's property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man's property and as such it resembles in some respects the claim to ownership by adverse possession of property ; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession, the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else.
13. In Tukaram Rajaram Suple and others v. Sonba Chindhu Mali, the Court observed1 2 3 4 "But, in my opinion, the principle of this case cannot be extended to every case of a right of way as Mr. Bobde wants me to do, so that, on plaintiffs leading evidence to prove uninterrupted user of a right of way for more than twenty years, the Court has straightway to draw a presumption that the user was as of right. In my opinion, it is for the Court to consider whether a presumption could be reasonably drawn looking to the circumstances of each case, such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place."
14. In Salina Jitendra Lal Sinha v. Ram Charan Gope and others, the Court held that "it is to be presumed, that if the owner of the dominant tenement has, for a long period, passed over the servient tenement, that he did it from the beginning with a claim of right for, it is unlikely that if he had not such a right, the owner of the servient tenement would have allowed him to pass". In India, however, and it may be in other countries, where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land.
15. In Razi Muhammad Ishaq v. Maheed, the view taken was that since there can be no easement without animus, a mere passage by licence would not entitle the claimant to the right of easement unless he can prove that he has been doing that act as of right. The Court further observed that : "The view of the learned District Judge that there was an easement of necessity is not sustainable in law, for, there is a passage to the North and the alternative route suggested by the plaintiff- appellant even though it might be highly inconvenient, is available to the defendant-respondent.
An easement of necessity is not allowed for the reasons of convenience and in this view of the matter, I am supported by Ahmad All Fakhruddin Bohra v. Dhondba Dasrath Kalar A 1 R 1937 Nag.
179, as also by observation in paragraph 13 of Safar All v. Abdul Hashim and another PLD 1963 Dacca 201."
16. In view of the above, the plaintiffs must prove that:-
(a) the plaintiffs passed over a subservient tenement for more than 20 years;
(b) the passing over was hostile and adverse to the right of the owner of the subservient tenement;
(c) the act of passing over was done consciously;
(d) the Court must also look to the nature and character of the subservient land, the relations between the parties and the manner in which the user took place.
17. The evidence as discussed in paras. 7 to 10 above shows that the plaintiffs did not prove items
(b) and (c) above. Rather, according to P. W. I the alternate passage used by the appellants after the disputed passage had been closed, was through the house of Muhammad Hanif, whereas appellant No, 1, as P. W. 3 stated, that it was through the house of Nazar Hussain appellant No, 2.
Mangoo (P. W. 2) stated that the appellants were using the street in front of the house of Sadiq situate or the southern side of the house of Nazar Hussain appellant No, 2, to go to the village. He also stated that the disputed path was in fact a vacant site. All the D. Ws., on the other hand deposed that at the disputed portion, there was a kacha room or its remains and it is there that the `pacca' room was built. Some of them also stated that the appellants had another street to go to the village while others stated that there was no other path. The Local Commissioner at serial 2 of his conclusion (para. 10) reported that the disputed passage "is the only nearest and most convenient passage for going to the village towards the abadi north". The entir evidence is one way, deficient to prove the required position and in the other, it is conflicting and contradictory of each other. It is thus neither proved that the appellant had earned a prescriptive right of way nor that there was no alternate passage.
18. Admittedly, the disputed path and the other properties are situate in a village. Normally, the land owners permit others to use their land for the purpose of passage. This is generally permissive act5 6 and the users also do not treat it as a hostile act to the other tenement. This position has been stated in the judgment noted at para. 14 also. The appellants, therefore, should have produced same evidence as to item (d) in para. 16 above, so as to succeed. Thus I do not find any justification to disagree with the findings of the lower appellate Court. He also rightly ignored the unauthorised portion of the report of the Local Commissioner, who should not have gone beyond the commission assigned to him. The view taken by the lower appellate Court is also in accord with the view taken in Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others as already referred to in para. 11 above.
' In view of the above, there is no merit in this appeal which is dismissed. As the point involved was quite technical, the parties shall bear their own costs. PLD 1961 Dacca 65 PLD 1959 Dacca 491 AIR 1946 Bom. 266 AIR 1959 Bom. 63 A 1 R 1959 Pat. 475 PLD 1975 Pesh. 82 PLD 1961 Dacca 65