' MUHAMMAD AFZAL LONE, J.---The facts are that a market by the name of Faridia Market, Chowk Qutab, Pakpattan, consisting of 13 shops constructed in pursuance of a plan sanctioned by the Municipal Committee, in semi-circular form, `U' shape in appearance, originally belonged to Diwn Ghulam Qutabuddin, who was party to this litigation before the Courts below. He sold away these shops to the respondents and others; each one of them is vendee of one shop. In front of these shops is a raised platform 4 to 5 feet in width, which had been constructed by the original owner of the property, presumably at the time of construction of the market; across which lies an open space wherein he built two shops, facing the entrance of the market. This construction is also covered by a sanctioned plan. Claiming that the construction aforesaid was, an infringement of the respondents' right to enjoy and use the open space described by them as a compound of the market, they filed a suit for declaration that the said compound was a part of their shops. Grant of mandatory injunction compelling Diwan Ghulam Qutabuddin or for that matter the appellants to remove malba of the said shops was also prayed for. Diwan Ghulam Qutabuddin contested the suit, as the appellants, who are vendees of the two shops from him, appeared on the scene at a later stage.
2. The trial Court in the first instance framed certain preliminary issues which arose out of the pleadings of the parties, but these were answered in favour of the respondents. On merits it was found that the respondents' version stood amply supported by the material on the record from which it was established that open space formed part of the shops. Accordingly, the suit was decreed on 5-3-1986. The appellants, who by then had stepped into the shoes of the original owner, preferred an appeal against the judgment and decree of the trial Court, and the learned Additional Distirct Judge who heard it concurred with the findings recorded by the learned Civil Judge on all the issues and held that the compound in dispute was an integral part of Faridia Market, which was being used by the respondents and other shop keepers owning shops in the market without any let or hindrance for the last about 40 years and thus the compound could not be separated from the market. In view of this finding, the appeal was dismissed vide judgment and decree dated 14-2-1987.
3. The appellants challenged the dismissal of their first appeal through a revision before the High Court. The learned Single Judge observed that though in the plaint the respondents claimed ownership of the compound which they failed to prove, yet all the shopkeepers had also asserted its user and succeeded in establishing the same by oral and documentary evidence, which amply reflected that the compound existed as appurtenant to the shops and was required for the use thereof as a matter of necessity. Thus, for the first time, the High Court returned a finding treating the compound as an easement of necessity for the shops.
4. The appellants have moved an application that six persons, particularized therein, namely, Muhammad Sharif and others, who were party to the proceedings before the Courts below, erroneously could not be arrayed as respondents in the petition for leave to appeal. It has been thus prayed that their names may be brought on the record. Though this application has half heartedly been opposed by the learned counsel for the respondents, but we find that their presence before the Courts is essential for proper adjudication of the controversy before us, particularly when they themselves are desirous to be impleaded as party and are also represented by a learned counsel. This application is accordingly allowed.
5. In support of this appeal, the learned counsel for the appellants has reiterated the stand taken by them before the learned lower Courts. In the first place it has been urged that the platform in front of each shop is part thereof and likewise the compound is an integral part of the Faridia Market and thus belongs to the respondents and other owners of the shops. However, on perusal of the title deeds of the respondents, we have hardly found any substance in their claim, both with regard to the platform as well as the compound, for the ownership rights therein were never passed on to them by the vendor. In this respect the finding of the trial Court and the 1st Appellate Court, attributing the ownership of the compound to the respondents, is the result of sheer misreading of the sale-deeds in their favour. Indeed, the sale-deeds do not confer any right of ownership either in the platform or the compound in the respondents. Faced with this situation, the learned counsel for the respondents raised the plea of easement of necessity and submitted that the entire compound ever since the establishment of the market was all along used by them and their customers for approach to the shops and other purposes connected with their business. His contention was that the compound was absolutely necessary for use of the shops and running of business therein by the respondents.
6. At the leave granting stage, it was pointed out on behalf of the appellants that in addition to the platform for use of the shop owners, a 12 feet wide passage had been allowed for the purposes of approach to the shops in question. Leave A was granted to examine the issue, whether in the circumstances of the case any right of easement existed in favour of the respondents.
7. Easement is a right possessed by an owner of property, for its beneficial enjoyment, appurtenant to a property owned by another person. A right of easement thus accrues in respect of the property owned by someone else. The plea -of right of easement would thus negate the respondents' claim that the compound of the market vested in them. The position of the shops, the platform and the compound has been delineated in the site plan Exh.D-6 which is a copy of the Municipal record.
This plan clearly indicates the existence of a 5 feet platform in front of the shops which runs alongwith the building line. We are informed that some of the shopkeepers have amalgamated in their shops, the portion of the platform in front thereof. In between this platform and the construction in dispute located in the compound, lies a passage in semi-circular shape parallel to the platform. According to the measurements recorded in Exh. D-6 the width of the passage is 7 feet and that of the platform 5 feet. Thus, approximately, 12 feet space inclusive of platform is available in front of each shop. It may be observed that in leave granting order the description of the platform as being exclusive of 12 feet wide passage is not correct. In fact, both the platform and the passage in width jointly measured 12 feet.
8. The right claimed by the respondents is the easement of necessity envisaged by section 13 of the Easements Act, 1882. For sustenance of such a claim, it must be shown that without enjoyment of such right, the property for the beneficial user whereof the right exists, cannot at all be used. It is not enough to show that it is merely necessary for use of the property or without it the enjoyment Of the said property would be rendered inconvenient. With this test in view, it cannot be said that for beneficial enjoyment of the respondents' shops, the use of the entire compound is absolutely necessary; 12 feet wide space comprising platform and the passage is enough to serve the requirements of the respondents. Learned counsel for the respondents has, however, contended that the width of the platform and the passage at some places is 10 feet only. Even if it is so, due to encroachment by some of the shopkeepers, we do not think that small fall in width of the space presently available to the respondents, would militate against the beneficial enjoyment for the shops by them. It may be brought on the record that the learned counsel for the appellants unequivocally conceded the respondents' and other shopkeepers' right of easement of necessity to the extent of the platform and the passage aforesaid.
' For the foregoing reasons, this appeal is accepted to the extent that the respondents' right of easement is confined only to the platform and the passage in all having width ranging between 10 and 12 feet, The judgment and decree passed by the High Court are altered accordingly, leaving the parties to bear their own costs.