MIAN NAZIR AKHTAR, J.- This revision petition arises out of a suit for permanent injunction filed by the respondent on 24.4.1984 in the court of the Civil Judge, Mandi Baha Uddin. It was decreed by the trial court on 3.10.1988.
The appeal filed by the present petitioner was dismissed by the learned Addl: District Judge, Gujrat vide his judgment and decree dated 10.3.1990.
2. The respondent had laid claim to the ownership of a passage situated in the land belonging to the present petitioner. In the plaint, as originally filed, it was asserted that the plaintiff was using the passage for the last more than l2 years. However, he subsequently amended para 3 of the plaint with the permission of the court and added the word 'thirty5 instead of twelve therein. The present petitioner resisted the suit and claimed that the passage was made for his private use and that the respondent had started using it for the last 6 months. On the pleadings of the parties, the trial court framed the following issues:-
1. Whether the plaintiff is entitled to use the disputed path on the basis of right of easement ? OPP
2. Whether the suit has been instituted malafidely and the defendant is entitled for special costs ?
OPD
3. Whether the defendant is liable to be restrained from ploughing on the passage ? OPP
4. Relief.
Issues No.1 and 3 were decided in favour of the respondent and the on 3.10.4988. The said findings were affirmed in appeal, by the learned Addl District Judge. The issue relating to contempt of court was decided in favour of the respondent.
3. The learned counsel for the petitioner urged that the burden of proof of issues No.1 and 3 was on the plaintiff who miserably failed to discharge the same. He urged that the courts below misread the relevant record and drew wrong conclusions therefrom. He laid great stress on the point that the prescriptive right of user of the passage could not come into being in the absence of clear evidence to show that the respondent had been peaceably and openly using the passage as a matter of right and without any interruption continuously for a period of 20 years. He urged that mere user for 20 years otherwise than as of right could not create prescriptive right in favour of the respondent. In this connection he placed reliance on the following judgments:-
1. (1971 P.L.C 6831 Sudhandee Deb vs. Ambica Singh Monipuri.
2. P.L.D. 1963 Dacca, 201 (Safar Ali vs. Abdul Hashim and another)
3. P.L.D. 1959 Dacca 491 (Abdul Ghaffar alias Sona MIA vs. Abdus Sattar and another)
4. A.I.R. 1931 Lahore 3Q5 (Ram Sarup vs. Abdul Haul.)
5. A.I.R. 1929 Calcutta, 542. (Siti Kanta P.1 and another vs. Radha Gobinda Sen and others).
He further submitted that the petitioner had filed an application for additional evidence before the appellate court which was arbitrarily rejected. On the other hand the learned counsel for the respondent submitted that the two courts had concurrently recorded findings on issues No.1 and 3 in favour of the respondent which were not liable to be interfered with in the exercise of revisional jurisdiction. He placed reliance on 1990 C.L.C 1439 f Ghulam Rasul and others vs. Karim Bakhsh and others1. He further submits that the conditions requisite for allowing additional evidence were not satisfied in the case, hence the appellate court had. Rightly rejected the application filed by the petitioner for additional evidence. In this connection he placed reliance on 1984 C.L.C 1105. (Bashir Ahmad vs. Ahmadul Hao Siddiqui).
4. Taking up the contentions regarding production of additional evidence first, I find no merit in the petitioner's contention that the appellate court had arbitrarily rejected his application for additional evidence. The documents sought to be produced by way of additional evidence were neither required by the court for pronouncing judgment nor refused to be admitted in the evidence by the trial court. In fact, the said documents were never relied upon by the petitioner or tendered in evidence. The petitioner could not be allowed to fill up the gaps left in his case at the appellate stage. This view finds support from the judgment in the Case of Bashir Ahmad vs. Ahmadul Haq Siddiqui (1984 C.L.C 1105) referred to by the learned counsel for the respondent which I respectfully follow.
5. After hearing the learned counsel for the parties and perusing the record, I find that the courts below have acted in the exercise of their jurisdiction illegally and with material irregularity in passing the impugned judgments and decrees. The respondent/plaintiff had nowhere asserted in the plaint that he was entitled as of right to use the passage. He had originally claimed that he was using the 'course' for more than l2 years. After amendment of the plaint, the word 'thirty' was substituted for the word twelve. However, in the para relating to cause of action he did not specify the date when the petitioner had threatened to plough the course/passage. Even in the evidence, the date when the petitioner had given threats to block the passage or actually blocked, it has not been specified. May be, the petitioner had given the said threats or objected to the use of the passage by the respondent and then blocked it during the period of 20 years preceding the institution of the suit. The burden heavily lay on the petitioner to prove by reliable and cogent evidence that he had been using the way as a matter of right, peaceably and openly without any objection from any body continuously for more than 20 years. However, he failed to discharge the said onus. It appears that the respondent himself was not sure since when the passage was being used by him and when the petitioner had given threats to him to plough the passage or to block it.
That is why, initially he asserted that he was using the passage for the last more than l2 years and then amended the pleadings to add the word 'thirty', presumably on legal advice, to bring the case within the four corners of the provisions of section 28 of the Limitation Act. Both the courts below have placed reliance on the statements of D. W.l and D.W.2 to infer that the passage was in existence for the last 20 years and that it was being used by the plaintiff/respondent for the last more than 20 years. D. W.l is the petitioner/defendant whose statement was recorded on 27.6.1988.
He stated that he was using the passage for the last 20/22 years. Meaning thereby that the passage was in existence, at the most, since June, 1966. DW. 2 had merely stated that .The respondent/ plaintiff was also using the passage but he did not say anything regarding the period of the alleged user. Even if it is assumed that the respondent was using it since the month of June, 1966, then he had, at the most, used it for a period of 18 years till the date of institution of the suit i.e. 24.4.1984. Hence the two courts have wrongly inferred that the statements of Nazar Mohammad D.
W.l and Riaz Ahmad D.W.2 fully established that the disputed passage existed for the last about 20 years and that it was being used by the respondent/defendant for the last more than 20 years.
Moreover, the respondent himself did not enter the witness box but produced Mohammad Asim, his special attorney as P.W.3. He merely stated that the disputed passage existed in the land belonging to the petitioner for the last 30/32 years. He further stated that there was no other passage worth the plaintiff's use. He nowhere stated that the plaintiff has been peaceably and openly using the passage as a matter of right continuously for a period of 20 years. Moreover, the mere user of a passage for a long period without establishing that it was in exercise of a right and not merely by way of concession or permission Of the owner, either express or implied, was hardly sufficient to give rise a prescriptive title. I am fortified in my view by the judgments in the cases of Sudhandee Deh vs. Ambica Singh (1971 D.L.C 683), Safar Ali vs. Abul Hashim and another (P.L.D 1963 Dacca 201) and Abdul Ghaffar alias Sona MIA vs. Abdus Sattar and another (P.L.D 1959 Dacca 491) cited by the petitioner's learned counsel which I respectfully follow. Thus the petitioner/respondent miserably failed to prove any prescriptive right for the use of the disputed passage.
6. For the foregoing discussion, I accept this revision petition, set aside the impugned judgments and decrees passed by the courts below and dismiss the suit filed by the respondent leaving the parties to bear their own costs.