1. ' This is a plaintiff's second appeal in suit for acquisition of prescriptive easementary rights respecting light, air and passage through and over the vacant Plot No,1159 situated in Saddar Bazar, Sialkot Cantonment. The suit was dismissed by the trial Court on 31-10-1968. An appeal from the decision failed on 4-6-1969 in the Court or learned District Judge, Sialkot.
2. ' Relevant facts for the purpose of the decision of the appeal, briefly are: A residential house, under Survey No,1160, situate in Cantornment limits of Sialkot was owned by Boota Singh, a non Muslim evacuee. It comprised a double storey. It was allotted to the plaintiff-appellant on 27-9-1947. It was transferred to him, on 27-7-1960, by the Deputy Settlement Commissioner, Sialkot Cantonment, Upon payment of transfer price, ownership rights in the house were permanently transferred to the plaintiff, on 1-10-1962, and a PTD Exh. P.8 was issued accordingly. Plaintiff had occupied the house in 1947. Adjacent to house No, 1160, on its eastern side lay a vacant plot bearing Survey No,1159. It also belonged to the above Boota Singh. It too was allotted to the plaintiff, on 26-2-1952, but the same was not found transferable to him. Its disposal was put to an unrestricted public auction by the Deputy Settlement Commissioner, Sialkot Cantt. vide an order dated 5-10-1960. Appeal filed by the plaintiff against the order before the Additional Settlement Commissioner Sialkot was dismissed on 18-11-1960. Vacant plot was then auction-purchased by the defendant, and P.T.D. was issued to him on 6-11 1967. Thus, the house and the adjacent plot (dismantled house) which once belonged to a common non-Muslim evacuee owner, in course of settlement operations, were transferred to two persons, namely, the plaintiff and defendant. Later, it gave rise to the litigation between the transferees about acquisition of easement-rights by the owner of the house against the owner of the vacant plot.
3. ' Plaintiff claimed that a door of his house opened towards the vacant plot. The door was marked T in the plan attached to the plaint. This door linked the passage from the house to an outer door installed at point 'J' in the plot. It was averred that through these two doors, the plaintiff had been enjoying right of passage and receiving light and air for the past twenty years and have, thus, prescribed for acquisition of easementary rights. Defendant contested the suit and submitted that the plaintiff had no such right to passage, light and air from his plot. It was asserted that there was no door of the house towards the plot in the sanctioned plan of the building by the Cantonment Board and the door was later opened unauthorizedly by the plaintiff to which the Cantonment Board had also demurred by passing of a Resolution and issuing of a notice for its closure. On 17-1- 1968, trial Court framed following issues for determination:---
(1) Has the plaintiff enjoyed light and air and passage through the doors in question for mare than 20 years peaceably and without interruption?
(2) Relief.
4. ' Some time later, the issues were re-cast as given below:--
(1) Has this Court no jurisdiction to try this suit?
(2) Is the plaintiff not entitled to claim any right of easement in respect of the house in dispute?
(3) Has the plaintiff acquired right of easement concerning light, passage and air through the doors in question?
(4) Relief.
5. ' Upon the above issues, parties gave evidence, oral as well as documentary. Upon its considered analysis, the trial Court gave judgment against the plaintiff and dismissed the suit. Appellate Court affirmed its decision. Thereupon, a second appeal was filed in this Court which was admitted on 6- 2-1970.
6. ' Short question requiring decision in the second appeal was about the acquisition of easementary rights by the appellant over the property transferred to the respondent by the Settlement Department. Both the properties were owned by a common non-Muslim evacuee owner. On his migration to India, they came to vest in the Custodian of Evacuee Property and later, upon their acquisition, in the Central Government of Pakistan. Unity respecting ownership of the respective properties was maintained till it was separated by their transfer to the plaintiff and the defendant.
7. Final transfer in favour of the plaintiff took place on 1-10-1962 and the defendant on 6-11-1967. At one point of time, the house and the vacant plot were in occupation of the plaintiff. therefore, user of the vancant plot if any, was not in exercise of a right which could give rise to an easement. Further, record clearly showed that there was no door of the house in the building plan sanctioned for it by the Cantonment Board and upon its opening, the Cantonment Board took a serious exception to it. The doors of the houe opened and abutted on the other side towards the street. An attempt made for opening of an aperture towards the vacant plot was effectively foiled. There was strong evidence on file that there was sufficient light and air available in the house and the vacant plot was not necessery source for it. Also, there was no evidence that the plot was in use for a passage in exercise of right of easement by the plaintiff. If at all, it was a passage of convenience for the approach to the house by a sweepress only and did not give rise to perfected easement for its further use. Therefore, it was neither a case of acquisition of prescriptive easement nor a case of easement of necessity. As said above, the properties belonged to a non-Muslim evacuee and vested in the Central Government prior to their transfer. Against the Government, a period of sixty years was required to acquire an easementary right and against the private person, it was twenty years, Plaintiff did not prescribe for either. In view of aforesaid, appeal has no force. It is dismissed with no order as to its costs in this Court.
8. Records be returned.