' IRSHAD HASAN KHAN, J.---This direct appeal calls in question the validity of the judgment of the Peshawar High Court passed in R.F.A. No,39 of 1990 and R.F.A. No,64 of 1990.
2. The facts in brief are that the appellants instituted a suit for recovery of Rs,5,00,000 or the amount to be determined by the Court for causing damage by the respondents to the Water Flour Mills of the 'appellants situated on Budni Nullah, Khasra No,860, Khata No,236/673 in Village Daman Hindki, Tehsil and District Peshawar. The case of the appellants was that they were owners in possession of the said water flour mills since time immemorial, but the respondents without notice to them started excavating the Budni Nullah with a view to accommodating the flood water in it.
Consequently, the appellants' mills was rendered useless on account of low pressure of water. The suit was resisted by the respondents and it was inter alia pleaded that although there existed Budni. Nullah, yet there was no embankment on it at the time of excavation and that there was neither any flow in the water flour mills nor the appellants received any water for running their mills/jander. The learned Senior Civil Judge, on the basis of pleadings of the parties, issues struck thereon and after recording evidence and hearing the parties, partially decreed the suit with costs for recovery of Rs,1,05,073 vide judgment and decree dated 8-5-1990. Against this judgment the appellants filed R.F.A. No,38 of 1990 for decreeing the suit in to while the respondents filed R.F.A.
No,64 of 1990 for dismissal of the suit. Both these appeals were heard and disposed of by the Peshawar High Court vide consolidated judgment' dated 4-4-1993 whereby the appellants' appeal was dismissed and that of the respondents was allowed by setting aside the judgment and decree of the Trial Court and dismissed the suit of the appellants.
' The learned Judges of the High Court gave various reasons for rendering the impugned judgment.
First, the suit was time-barred, in that, the excavation had taken place in February, 1978 whereas the appellants instituted the suit in June 1983 after a lapse of three years and, therefore, the suit was hit by Article 37 of the Limitation Act. Secondly, the Revenue Record revealed that there were nine water flour mills/ganders belonging to various owners. The appellants were shown as shareholders to the extent of 52 shares out of 3-1/2 water flour mills/ganders, but the suit was for compensation of a single gander, which was neither specified in the plaint nor was any evidence led by them. Thirdly, the other co-sharers were not impleaded as parties in the suit and finally that the Trial Court committed an error by decreeing the suit on the basis of Award No,128 dated 14-2- 1985, in that, the compensation was fixed by WAPDA after assessing the damage caused to the ganders, but here the very existence of ganders was doubtful as the appellants failed to specify with particularity the identity of the ganders for which damages were claimed. #TBS Muhammad Akram Khawaja, Advocate Supreme Court for Appellants. #TBE
3. The real controversy in these proceedings revolves around finding on Issue No,6, which is to the effect "whether plaintiffs have sustained loss to the tune of Rs,5,00,000 at the instance of the defendants". The case of the appellants, as stated above, was that they sustained losses on account of stoppage of their water flour mills, which was widened for accommodating the flood water by the -respondents without notice to them. The learned counsel for the appellants frankly conceded that the claim of the appellants is neither based on some legal right nor does it flow from any contractual obligation. It is not even alleged in the plaint that they were owners of the water. However, it is the case of the opposite-party that the appellants had neither any mills nor had been using the water. We also do not find any evidence on record to prove that six mills, which were earlier acquired under the Land Acquisition Act, were identical to that of the appellants. The basis of claim of damages has not been given by the appellants in the plaint. No break-up has been given at all. They have been unable to lay any foundation whatsoever of their claim. The reliance placed on the Revenue Record relates to the year 1972. The Revenue Record of the earlier period has not been produced by the appellants. Clearly non-production thereof will lead to an inference against the appellants. When faced with this the learned counsel for the appellants argued that they are basing their claim on easement. We are afraid this does not help them either.
If the case is based on easement, it has been rightly held by the learned Judges of the High Court that the suit was barred by time, in that, under Article 37 of the Limitation Act, a period of three years is prescribed for filing suit for compensation for obstructing a way or watercourse from the date of the obstruction. Needless to say that a right based on custom must be ancient, reasonable and proved to have been exercised or enjoyed invariably and continuously from the beginning till the day of its dispute. Here the appellants have failed to prove that the alleged customary easement had been enjoyed in practice for such a long period as to show that it has, by common consent, been subjected to as the established governing rule of the particular locality. In the absence of any clear proof that the water supply had diminished the alleged customary easement of the appellants as a result of the respondents' action of excavating Budni Nullah in consequence whereof the appellants had suffered the alleged losses, their claim, being based purely on a guess, was rightly rejected by the learned High Court.
4. The appraisal of evidence by the learned Judges of the Division Bench is not in violation of any principle relating to appreciation of evidence. The finding recorded and the conclusions arrived at by them are based on cogent reasons warranting no interference. Consequently, the appeal fails and is hereby dismissed with no order as to costs.