JUDGMENT MALIK MUHAMMAD QAYYUM, J. - This petition u/S. 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 Nov.. 1989.
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 the five plots which were distributed amongst his heirs. Plot No. 1 fell to the share of Malik Muhammad Shafi, .Espondent No. 1. While plot No. 2 was given to Malik Sardar Ahmad, a 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 did during the pendency of the suit and other respondents (who were impleaded as defendants) from interfering in the passage of the plaintiff over the rosi 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 ease the passage was closed.
4. The suit was defended by predecessor of the petitioner and defendants Nos. 3 and 4 who filed a joint written statement raising various preliminary objections. On merits, it was admitted that originally Malik Baddr 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 Sardtir 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 I 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.
(V. By its judgment dated 19th November, 19S9, 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 findingThe 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 1u. . 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 Code 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 petitioner 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 pow'er 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 gain saying that inspection is hot substitute for evidence and . a case cannot be decided merely on the basis of opinion or impression formed during inspection. See Muhammad Jumman and another v. Mst. Aqhm and 2 others (I'Ll) 1980 Karachi 108), NurMuhammad etc, v.
Khushi Muhammad etc. (PLJ 1975 Lah. 178) and Tirath Ram and others v. Muhammad Abdul Rahim Shah and another (AIR 1923 Lah. 546).
10. The learned counsel then argued as 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 bv 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 art application filed by his opponent. 7
11. It was next contended by the learned counsel for the petitioners that easement of the nature claimed by respondent No. 1 can only be arisen 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 Ware-house, 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 benefits of which easement was being churned cannot be used at all, However this argument does not advance the case of the petitioner, 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 easement of necessity because its exercise is necessary for a responsible 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 his property.
On the death of Malik Badar Din, his property obviously devolved of 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 necessity."
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 PWs 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. DW 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 e.v parte: So she admitted the claim of the plaintiff as correct.
Malik Zahoor defendant No. 11 consented that the plaintiff has not access expert the disputed path.
The suit was decreed to the extent of defendant No. 11 on 5.2.1989 on the basis of mutual agreement Ex. Cl. DW 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. DW. 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, that road does not pass up till Sundar Dass Road. The upshot of the above discussion is that the plaintiff has been using the disputed path as a entire of necessity and he has no. Alternative except the disputed path. At the most of defendant can claim compensation as has been admitted by DW 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 petitioner, 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 K.I,.R. C.C.. ' 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 upset 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 on. Costs.