' This revision petition arises out of a suit for establishment of a right of easement through the courtyard of the defendant. The learned Bird Civil Judge First Class, Abbottabad, by his judgment and the, decree, dated 24-7-1991 granted the relief to the plaintiff. On appeal by the defendant, the judgment and the decree had been reversed by the learned Additional District Judge, Abbottabad, vide his judgment and the decree dated 27-9-1992.
2. Briefly, the facts of the case leading to these proceedings, are that a house comprising five rooms built around a common courtyard was originally owned by one Jamal Khan of village Bandi Matrachh, Tehsil and District Abbottabad. He died in the year 1968 leaving behind his three sons, namely, Muhammad Yaqub (D.W.2), Ali Zaman defendant No,1 and Abdul Karim plaintiff. During the lifetime of Jamal Khan, it appears, he had partitioned the house. Kothas opposite each other on east and depicted as 'I' and T in the site plan Exhibit F annexed with the report prepared by the Local Commissioner had fallen to the share of Ali Zaman defendant No,1; Kothas confronting each other on the west and depicted as {{URDU TEXT}} ' and {{URDU TEXT}}' were given to Abdul Karim plaintiff; while that between {{URDU TEXT}}' and {{URDU TEXT}}'was allotted to Muhammad Yaqub who had subsequently sold it to Abdul Karim plaintiff. According to the plaintiff, he was been using as a path the courtyard intervening all these Kothas to reach his Kothas as depicted in the site plan 'F' aforesaid as 'Bay', Jeem' and 'Ray' since partition of the house. The defendant-petitioner had dumped building material to raise a wall in the portion of the courtyard lying in front of his Kothas depicted as 'Alit' and 'Dal' in the site plan aforesaid so as to deny his ingress to his Kothas. The plaintiff-respondent, therefore, filed a civil suit for a permanent and mandatory injunction to restrain the defendant-petitioner from interfering with his right of passage, on the ground that he had acquired an easement of prescription as well as of necessity. The defendant-respondent contested the suit both on factual as well as legal plane. The trial Court recorded the evidence led by both the parties with regard to 11 issues which, to say the least, are not clear and happily worded. The learned trial Judge decreed the suit holding that the 'courtyard outside the house of the defendant was being used by the plaintiff as of right without any obstruction as an access to his houses'. In this context, it was further observed that since 1958-59 "the plaintiff is using the courtyard of the defendant as a path so the plaintiff has matured his easement right by prescription also in the suit path". Referring to the assertion of the defendant-petitioner that at the time of partition another path was available to the plaintiff-respondent, the learned Court of the first instance conceded that "the evidence placed on the file shows that although another alternative way to be used by, the plaintiff exists but the evidence of the plaintiff shows that the alternative path passes through land of another person Besides this alternative way is inconvenient for the plaintiff'. It would thus be noticed that the trial Court had granted the relief of right of way through the courtyard intervening the Kothas to the plaintiff-respondent on three-fold grounds: firstly, as co-owner of the courtyard; secondly, by way of prescription and; thirdly, as of easement of necessity. The learned appellate Court came to the conclusion that "the courtyard was being used by the parties as a path till partition. However, after the partition there has been dispute over the use of the courtyard as a path between the parties to this suit and one Muhammad Yaqub D.W.2. who sold his house to the plaintiff for want of path...Admittedly the plaintiff is residing in Karachi and there is an alternate path. The plaintiff has also constructed another Kotha which is linked up with the alternate path. The alternate path is also linked up with the house for which the disputed path is claimed". The claim qua the easement of necessity was also disallowed by the learned appellate Judge because element of convenience was not sufficient to grant right of easement of necessity. He had thus held the plaintiff-respondent to have no right of way through the courtyard intervening the two residential Kothas of the defendant- appellant and while setting aside the judgment he non-suited the plaintiff-respondent.
4. Paras. 3 and 4 of the plaint read as under:-- {{URDU TEXT}}
5. The learned counsel for the petitioner, therefore, did not press into service the assertion that he being co-owner in the courtyard, the petitioner was also entitled to use it "rightfully". Conversely he raised the following two contentions:---
(i) That the plaintiff has proved to have been exercising right of access to his house through the courtyard intervening the two Kothas having fallen to the defendant's share, peaceably without interruption, and for over 20 years.
(ii) That the plaintiff in any case, was entitled to easement of necessity within the contemplation of section 13 of the Easements Act (V of 1882).
6. In support of these two contentions the learned counsel for the petitioner invited my attention to the statement of Faqir Muhammad (P.W.3), father-in-law and attorney of the plaintiff; the evidence of Muhammad Din (P.W.4) and the report of the Local Commissioner which has not been objected to by either of the parties. Faqir Muhammad (P.W.3) had deposed that the disputed path leading to the house of the plaintiff had been continuously used "since their forefathers". However, he had admitted in his cross-examination that the disputed path had passed through the courtyard of the house of the defendant and further that while passing through the aforesaid courtyard 'the pardah of the defendant is likely to be affected'. He was also constrained to concede that 'the back of the house of the plaintiff is connected with the road belonging to the District Council'. In so far as long user of the courtyard, intervening the Kothas allotted in the partition to defendant, has been supported by Muhammad Din (P.W.4). He was, however, obliged to admit in his cross-examination that "there was a path lying on the backside of the house of plaintiff' and contradicted Faqir Muhammad (P.W.3), the attorney of the plaintiff when he emphasised that the aforesaid path "is not connected and does not lead to the house of the plaintiff'.
7. The following points were referred to the Local Commissioner for report:
(i) Is there any alternate pathway as an access to the house of the plaintiff?
(ii) Whether the pathway claimed by the plaintiff was available on the spot, if the answer be in the affirmative then since when it was being used?
(iii) Whether the privacy of the defendant's house would be adversely affected if the plaintiff is allowed to use the courtyard lying between the two Kothas of the defendants?
(iv) In whose favour amongst the parties the balance of convenience lies?
8. In answer to the first query, the Local Commissioner maintained that there was another alternate path but its user would not only consume more time but would also, to some extent, be inconvenient. The answer to the query (ii) ante was in the affirmative. It was stated in answer to the third query that the privacy of the defendant's house would be adversely affected by way of user of the courtyard as an access to the house of the plaintiff. The element of balance of convenience was stated to be somewhat equal in that if the courtyard is allowed to the plaintiff to be used as a path it would be convenient for the plaintiff but from the point of privacy of defendants it would be convenient to the defendant that the plaintiff should not use it as an access to his house.
9. Muhammad Ayub defendant (D.W.1) deposed that the pathway claimed by the plaintiff was the courtyard of his (defendant's) Kothas and that since partition of the land between the parties in the year 1958 the plaintiff had been using the path belonging to the District Council and depicted by the Local Commissioner in the plan annexed with his report. The defendant also urged that user of the courtyard as an access to the Kotha of the plaintiff infringed the privacy of the defendant's house. Muhammad Yaqub D.W.2 another brother of the plaintiff testified that he had to sell his share of the house to the plaintiff because of blockade of the path which passed through the courtyard of the defendant and that if a charpoy is placed in the courtyard of the defendant's Kotha then no path remains available. According to him there was an alternate pathway for the plaintiff which would enhance the distance of only 50/55 feet.
10. The learned counsel for the petitioner in support of his contentions also referred to case-law. In "Abdul Hamid Shah and another v. Muhammad Yar and 13 others" PLD 1991 SC 815, the Supreme Court of Pakistan held that for sustenance of claim of right of easement of necessity it must be shown that without enjoyment of such right the property for the beneficial user whereof the right exists, cannot be used; it is not enough to show that it is merely necessary for use of property or without it the enjoyment of the said property would be rendered in-convenient. It was held in "Fazal-e-Raziq v. Syed Zaman Shah and others" PLD 1980 SC 193 while referring to "Bagwan Dass and others v. Zamurd Hussain and another" AIR 1929 All. 676 a doubt was expressed as to whether the decision in "Gokal Barshad's case" 1921 Calcutta LJ 319 had a binding effect after the lapse of half a century when it was manifest that the force of the custom of `Pardah' must have largely varied in the course of such a long period. It was observed on the custom of `Pardah' that before such custom can be recognized it will be necessary to investigate whether it has essential attributes of a custom, it must be immemorial, it must be reasonable, it must have continued without interruption since its immemorial origin and it must be certain of its nature generally as well in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect and that it is then that custom acquires the force of law and judicial notice can be taken of it under section 57 of the Act. In "Mst. Noor Nishan and 4 others v. Said Muhammad and 17 others" PLD 1981 SC (AJ&K) 31 it was reiterated that in order to establish a right of easement under section 26 of the Limitation Act, 1908 it is enough for a plaintiff to prove that he has been exercising the right without interruption with express or implied permission of the owner of the survient tenament and without secrecy or stealth an open user continues without interruption for a long time and not shown to be attributable to permission or sufferance on owner's part is prima facie evidence of enjoyment as of right the presumption is that the party enjoying an easement acted under a claim of right until the control is shown. It was emphasized in this precedence that the question whether the enjoyment for the necessary period has been "as of right" must depend not only on the circumstances of each particular case but on the habits of people. It was indubitably found that the burden of proof of the right of easement lies on a party who claims enjoyment of such right. In "Abdullah and others v. Ahmad Khan and 10 others" 1988 CLC 1301 after reviewing the case-law on the subject it was thought that the Courts in the Sub-Continent consistently held that a person in the immediate neighbourhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. In the last authority of "A.
Razak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Ltd." 1991 M LD 1112 the law laid down by the High Court at page 1124 was that where from the evidence in case violation of privacy of plaintiff or any other person has been established then there is no question of right of privacy. The perusal of these authorities would reveal that the first case of "Abdul Hamid Shah" supports the case of defendant-respondent rather than that of the plaintiff-petitioner and the claim set up by the plaintiff in the plaint and tried to be substantiated by evidence does not come up to the test laid down therein. The second authority of "Fazal-e-Raziq v. Syed Zaman Shah and others" PLD 1980 SC 193 relied upon by the learned counsel for the petitioner also has different facts in the background and is not of help to the plaintiff-petitioner. Similarly, the authority of "Mst. Noor Nishan" from the jurisdiction of AJ&K does not lend support to the claim of plaintiff but it substantiates the defence raised by the owner of the scrvicnt tenement. In this context I can do no better than refer to the precedent case of "Qazi Muhammad Ishaq v. Abdul Waheed" PLD 1975 Pesh.
82 on which the learned counsel for the defendant-respondent had placed implicit reliance. The law laid down in "Abdul Hafiz and others v. Mahfizud Din and others" (1955) 7 DLR 577 was approved in the case of "Muhammad Ishaq" referred to above that a prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. Enjoyment must be as of right, i.e., not attributable to permission, implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. It was very aptly remarked that numerous people pass over the lands of their neighbours, friends and relations with their tacit permission and that such user, though continuous, and long, is seldom understood being in assertion of any right. It was rightly emphasised that in a suit for prescriptive right of way the plaintiff must show that his user was such as was sufficient to put the scrvicnt owners on notice that the enjoyment was not attributable to his tacit permission or favour. In the instant case it cannot possibly be visualized nor it is proved on the record that in a private partition that took place between the parties to the controversy the plaintiff-petitioner could possibly be allowed to use the courtyard of the house of the defendant-respondent as a passage. The presumption is that the enjoyment was not as of right but was clearly attributable to tacit permission as long as there was no infringement of the right of privacy of the owner of servient tenement. It was highlighted in the case of 'Muhammad Ishaq' cited above that one cannot over-look that in a Muslim Society where the neighbours are to be accommodated to the greatest possible extent a casual passage on this or that occasion through one's courtyard or verandah will be referable a licence and not as of right as is known in the law of easement. Again in the case of "Fazal Karim and another v. Muhammad Ashiq and 2 others" 1983 CLC 272 the plaintiff was required to prove in the case of acquisition of the right of easement by prescription the following ingredients:---
(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 owners 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, relations between the parties and the manner in which the user took place.
11. It was held in the said case of `Fazal Karim' that admittedly, the disputed path and other properties therein were situate in a village, that normally the land owners permit others to use their land for purpose of passage but it is generally permissive act and the users also do not treat it as a hostile act to the other tenement. The appellants therein, therefore, were required to have produced some evidence as to 'd' ante so as to succeed. In the instant case also the learned trial Judge was required to have looked to the nature and character of the subservient tenement, namely, the courtyard in front of the Kothas of the defendant-respondent in which if a charpai is placed, the space left was not enough for user for his pathway. Similarly, the learned trial Judge has overlooked the relations between the parties and the manner in which the user has been taking place in the instant case, namely, the permissive nature of the user.
12. From what has been observed above, the plaintiff-petitioner has not been able to prove that the passing over the courtyard of the defendant-petitioner was hostile and adverse to the right of the defendant-respondent and that the act of passing over has been done consciously. The first contention of the learned counsel for the plaintiff-petitioner has no substance and it must fail.
13. Apart from the defendant's ocular evidence, I find in the report of the Local Commissioner also, that there is an alternate path available to the plaintiff-petitioner but it would not only consume more time but would be also to some extent inconvenient. The law is settled by now as held in "Abdul Hamid Shah's" case relied upon by the plaintiff-petitioner's counsel that for the sustenance of claim of right of easement of necessity 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 and that mere necessity for use of the property and inconvenience are not enough to grant such a right. The plaintiff-petitioner has thus miserably failed to establish his right of easement of necessity as well.
14. In view of the above, there is no merit in this revision which is dismissed. As the point involved was quite technical the parties shall bear their own costs.