' This petition under section 115 of the Code of Civil Procedure, 1908 calls in question the decree of the Additional District Judge, Lahore, dated 17th July, 1991, affirming the judgment and decree of the trial Court dated 19th November, 1989.
2. The background in which this dispute has arisen is that originally Malik Badar Din was the owner of the land measuring 27 Kanals bearing Khasra Nos. 5083, 5093/1, 5094, 5079, 5099, 5078, 5095, 5077, 5076, 5094/1, 5103, 5102, 5101, 5100, 5104, 5073, 5043, 5076 and 5071 situate on 21-A, Davis Road, Lahore. It appears that after the death of Malik Badar Din, the land in question was divided into five plots which were distributed amongst his heirs. Plot No,1 fell to the share of Malik Muhammad Shafi, respondent No,1 while Plot No,2 was given to Malik Sardar Ahniad, brother of respondent No,1, who sold it to Sheikh Muhammad Ilyas, the predecessor of the petitioners.
3. On 22nd April, 1976, Malik Muhammad Shafi, respondent No,1, filed a. suit for permanent injunction for restraining Sheikh Muhammad Ilyas, the predecessor of the petitioners, who died during the pendency of the suit and other respondents (who were impleaded as defendants) from interfering in the passage of the plaintiff over the road leading to his property which was shown in the red colour in the plan filed with the plaint. The suit was based upon the assertion that the passage in question had been in existence since the time immemorial and was the only access to the property of the plaintiff which would be rendered valueless in case the passage was closed.
4. The suit was defended by predecessor of the petitioners and defendants Nos. 3 and 4 who tiled a joint written statement raising various preliminary objections. On merits, it was admitted that originally Malik Badar Din was owner of the entire land which was later on divided among his heirs out of which respondent No,1 was given Plot No,1 while Plot No,2 fell to the share of Malik Sardar Ahmad, who subsequently sold it to Sh. Muhammad Ilyas the deceased defendant No,1, the predecessor of the petitioners.
5. Out of the pleadings of the parties the trial Court framed the following three issues on which the parties led their evidence:---
(1) Whether there exists right of easement in favour of the plaintiff as alleged by him in the plaint?
OPP.
(2) If issue No,1 is not proved whether the plaintiff has an easement of necessity over the road in dispute? OPP.
(3) Relief.
' By its judgment dated 19th November, 1989, the trial Court decided Issue No,1 against plaintiff/respondent No,1 but held under Issue No,2 that he was entitled to use the passage as easement of necessity. On this finding the suit of respondent No,1 was decreed.
7. Aggrieved, the petitioners took the matter in appeal before the District Court, which was, however, dismissed by an Additional District Judge, on 17th, 1991, who affirmed the finding of the trial Court on Issue No,2. It may be mentioned that before the learned Additional District Judge an application under Order 18, Rule 18 of the Codc of Civil Procedure, read with section 151 of the Code of Civil Procedure, was filed for inspection of the site but the same was rejected by the Additional District Judge, who was of the opinion that in view of the evidence led by the parties, there was no difficulty in deciding the issue involved.
8. The first contention raised by Ch. Muhammad Farooq, Advocate, learned counsel for the petitioners is that the learned Additional District Judge acted illegally in rejecting the application for inspection of site filed by the petitioners. This contention of the learned counsel is not well- founded. The exercise of power under Order 18, Rule 18 of the Code of Civil Procedure for inspection of the property was in the discretion of the Court. If there was sufficient evidence available on the record on the basis of which the Court found no difficulty in deciding the matter in issue, the inspection of the property was not called for. The order passed by the learned Additional District Judge in this respect is neither arbitrary nor capricious and calls for no interference in the exercise of revisional jurisdiction of this Court.
9. It needs no gainsaying that inspection is no substitute for evidence and a case cannot be decided merely on the basis of opinion or impression formed during inspection. Sce Muhammad Jumman and another v. Mst. Aglan and 2 others PLD 1980 Kar. 108; Nur Muhammad others v. Khushi Muhammad and others PLD 1975 Lah. 515 and Tirath Ram and others v. Muhammad Abdul Rahim Shah and another AIR 1923 Lah.
546.
' M. The learned counsel then argued that the respondent/plaintiff himself had filed the application for appointing a Local Commissioner before the trial Court, a Local Commissioner should have been appointed. To say the least, admittedly no such application was filed by the petitioner either before the trial Court or the lower appellate Court nor even before this Court and, therefore, it does not lie in the mouth of the petitioner to say that Local Commissioner should have been appointed on an application filed by his opponent.
11. It was next contended by the learned counsel for the petitioners that easement of the nature claimed by respondent No,1 can only arise if it was absolutely necessary to use the passage but not merely on the ground of convenience. Reliance was placed by him on two authorities of the Supreme Court viz. Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estate Ltd. and another 1991 SCM R 119 and Abdul Hamid Shah and another v. Muhammad Yar and 13 others PLD 1991 SC 815.
12. The legal premises on which the argument of the learned counsel proceeds is not open to any exception, for it is well-settled that easement of necessity can only be claimed when it is demonstrated before the Court that without enjoyment of that right the property for the benefit of which easement was being claimed cannot be used at all. However this argument does not advance the case of the petitioners, for in the present case both the Courts after appraising the entire material on the record have concurrently held that without the use of the passage in question respondent No,1/plaintiff shall not have any access to his property. In his impugned judgment, the Additional District Judge observed that:--- "From the evidence on record it is quite clear that the plaintiff is claiming the casement of necessity because its exercise is necessary for a reasonable enjoyment of his property and it is not only a matter of inconvenience that he is refusing to use some other passage as access to this property.
On the death of Malik Badar Din, his property obviously devolved on his heirs and was subsequently partitioned. On the basis of evidence on record, it is clear that the plaintiff cannot use his property without using the disputed passage and it is not merely the question of a reasonable enjoyment of the property. So it is not a question of merely convenience or inconvenience. Hence, it stands clearly proved that the plaintiff/respondent No,1 has the right to use the road in dispute as an easement of necessaity."
' The learned Civil Judge also came to the similar conclusion and held that:--- "The plaintiff constructed his house after the construction of the defendant No,1. All the P.Ws. approved and corroborated that there is no access to the plot of the plaintiff except the disputed passage. In 1963 the plots were distributed as were planned by the Improvement Trust but that scheme was abandoned in 1968. The road proposed for the approach of Plot No,1 was also abandoned. The plaintiff started using the disputed plot as necessity as he had no access or other approach towards his house. D.W.2 who is the husband of defendant No,10, deposed that he promised to give the passage to the plaintiff but the compensation was not given to him. The defendant No,10 was proceeded ex parte. So she admitted the claim of the plaintiff as correct. Malik Zahoor defendant No,11 consented that the plaintiff has no access except the disputed path. The suit was decreed to the extent of defendant No,11 on 5-2-1989 on the basi of mutual agreement Exh.C1. D.W.3 the defendant No,1 admitted that the plaintiff has been using the disputed passage after his construction. Obviously no objection was raised for a long time. D.W.3 admitted that the road shown mark B in the site plan does not pass beyond the house of the plaintiff. Further added that passage was included by the plaintiff in his house. He admitted that road does not pass uptil Sundar Dass Road. The upshot of the above discussion is that the plaintiff has been using the disputed path as of entire necessity and he has no alternative except the disputed path. At the most the defendant can claim compensation as has been admitted by D.W.2 in his cross- examination."
13. These findings are not shown to suffer from any misreading or non- consideration of material evidence and therefore, cannot be interfered with in the revisional jurisdiction of this Court. .14. The learned counsel for the petitioners, however, referred to various parts of the statement of certain witnesses to show that the findings arrived, at by the Courts below were not correct. This argument of the learned counsel cannot be accepted as these findings are based upon correct appreciation of evidence. Be that as it may, the findings recorded by both the Courts below on questions of fact cannot be set at naught merely on the ground that another view of evidence was possible on its reappraisal. In this view of the matter there is no force in this petition. It is dismissed, leaving the parties to bear their own costs.