This civil revision is directed against the judgment and decree dated 18-7-1981 passed by the learned District Judge, Faisalabad, whereby the appeal of the respondent was accepted.
Consequently, the suit of the petitioner for permanent injunction was dismissed by setting aside the judgment and decree dated 10-6-1980 passed by the learned Civil Judge, Faisalabad.
2. The petitioner filed before the learned Senior Civil Judge, Faisalabad, on 30-4-1976, a suit for permanent injunction for restraining the respondents Nos. l and 2 from erecting a wall on the road between Agricultural Research Institute, the Labour Colony of the Central Textile Mills Limited and of the petitioner situated in Chak No.220/RB as shown in the plan mark --A' annexed with the plaint. A further restraint order against raising any obstruction or from blocking the use of the road in any manner and for mandating respondent No.3 to prohibit the respondents Nos. l and 2 from erecting a wall or causing any obstruction or blocking the road was prayed for. It was asserted by the petitioner-Company that it was constituted in the year 1955-56 and that since then the petitioner had been using the road passing between the respondent No. l and the other Abadis known as Katchi Abadis, Labour Colony of Central Textile Mills Limited and that of the petitioner-Mills with width of 14 Karams as shown in the plan. It was further averred that the road in dispute was vested in Municipal Corporation Faisalabad. The petitioner-Company Mills claimed the use of the road as a matter of right. The learned Civil Judge framed, on 10-9-1976, the following issues:-
(1) Whether the plaintiff has no right over the disputed property? OPD.
(3) Whether the plaintiff is entitled to injunction prayed for? OPP.
(4) Relief.
3. The suit of the petitioner was decreed by a learned Civil Judge, Faisalabad, vide judgment and decree dated 10-6-1980. Issues Nos. l and 2 were decided against the respondents and in favour of the petitioner. However, the appeal of the respondents was accepted by the impugned judgment and decree dated 18-7-1981 passed by the learned District Judge, Faisalabad. Hence, this revision petition.
4 Syed Zahid Hussain, Advocate, for the petitioner has contended that the impugned judgment and decree dated 18-7-1981 passed by the learned District Judge, Faisalabad, suffers from misreading and non-reading of material evidence. He argued that the learned appellate Court omitted to taken into consideration the relevant documentary evidence. It was submitted that the material illegality and irregularity committed by the learned appellate Court resulted in grave miscarriage of justice which called for interference by this Court under section 115 of C.P.C. It was stated that the learned trial Court had personally inspected the spot and came to a definite conclusion that the road in dispute was a public road being used by the general public and the petitioner. It was founds that public institutions like Government School, Public Utility Store and post office had also been established on the road to question. It was argued that the learned appellate Court failed to advert to the vital aspects of the case and no cogent reasons were given for reversing the findings of the learned Trial Court Learned counsel also placed reliance on Exh. P.1 (master plan), Exh.P.2 (site plari by PHED). Exhs.P.3 and P.4 (maps 1955 by the Land Acquisition Officer of the Industries Department), Exh.P.5 (map by the Sui Northern Gas Pipeline; Ltd.) and Exh.P.14 (map by the Municipal Corporation F.D.A.. Faisalabad). Learned counsel also read out the statements of P. Ws.4, 5 and 8 to 15. Hoe--- particularly, mentioned the statement of P.W.15 who was Deputy Director of the F.D.A. In support of his case. Learned counsel further submitted that the learned appellate Court proceeded to base its decision primarily on various Jamabandis but omitted to consider the documentary and oral evidence adduced by the petitioner which fully proved its case. Learned counsel placed reliance on the cases of Mst. Bibi Wakilan v. Deo Nandan Prasad and others (AIR 1921 Patna 268), Lt. Col Nawab Sir Muhammad Akbar Khan v. Provincial Government N.-W.F.P.
Through Collector, Mardan and others (AIR 1942 Peshawar 1), Khandeswar Champati and others v.
Gokulanada Jena and others (AIR 1965 Orissa 91), Mahant Sya Ram Das Potra Chela of Mahant Charan Dass v. Lahore Electric Supply Co. Ltd. (AIR (29) 1942 Lah. 124). Rajput Colliery Co, v.
Pursottam Gohil (AIR 1959 Patna 463), Abdullah and another v. Ahmad Khan (1988 CLC 1301) Ananta Kumar Maiumdar and othersv. Gopal Chandra Majumdar and others 65), Mohabbat v Asadullah Khan (PLD 1989 SC 112), Ghulam Muhammad v. Muhammad Aslam (PLD 1993 SC 336); Mistri Muhammad Hassan v. Haji Said Muhammad and another (1986 CLC 1241 (1252)), ,Pakistan National Oils Ltd. v. Sattar Muhammad (1980 SCMR 686), Jan Muhammad Khan v. Shah Mir Hussain (1985 SCMR 2029), Makhmad and another v. Shadi Khan through his legal heirs (1986 SCMR 1018) and Jam Pari v. Muhammad Abdullah (1992 SCMR 786) in support of his contentions.
Mr. S. Abid Mumtaz Tirmizi, Advocate, for respondent No. Lontroverted the arguments of the learned counsel for the petitioner.. He submitted that findings of fact had been duly recorded by the learned appellate Court which did not call for interference under section 115 of C.P.C. Hefurther submitted that the easement of necessity could not be claimed as other passage was available to the petitioner. He further submitted that from the evidence on record the right of easemnet by prescription had not been established. The learned counsel strongly relied on the cases of Malik Hashim Din v. Bashir Ahmad (1992 CLC 754), Abdul Hamid Shah v. Muhammad Yar (PLD 1991 SC 815), Abdul Karim v. A.I 7aman (1993 MLD 1481), Daw Tint Maung Kywe and others (AIR 1935 Rangoon 56) and M/s Pakistan Warranted Warehouse Ltd. v. M/s Sindh Industrial Trading Estates Ltd. And others (1991 SCMR 1199) in support of his contentions. He further submitted that the respondent No.3 in its written statement had already disowned of- having any control over the road in dispute.
Learned counsel has vehemently contended that the plans/maps produced by the petitioner could not be taken to be relevant and the same had not been prepared by or under the authority of Government 4asuired by Article 50 of the Qanun-e-Shahadat Order, 1984. He further placed reliance on Exh.P.I l that it did not show the existence of the road in dispute. He also referred to Exhs.P.12. P.13 and D-3. He xelied on the cases of~ 'Hakim Khan v. Aurangzeb and others (1979 SCMR 625) and Suhbatullah Khan v. Pirzada Noorul Basar (PLD 1993 Pesh. 90) to support his contentions that the entries in Jamabandi carried the presumption of truth. He referred the case of Maharaja Sir Kesho Prasad Singh I3ahadur v. Bahuria Mst. Bhagjogna Kuer andhers (AIR 1937 Privy Council 69) to support that the maps were not public documents and the presumption of truth was not attached to them.
6. Mr. Naveed Rasool Mirza, learned Additional Advocate-General, Punjab, for respondent No.2 supported the arguments of the learned counsel for respondent No. 1.
7. Ch. A.I Muhammad Advocate, for respondent No.3 stated that the petitioner was trying to set up altogether a different case than the one stated in the plaint. .He particularly made reference to paras. Nos. 13 and 14 of the impugned judgment of the learned District Judge. He relied on the case of Fazal Akbar v. Mst. Hussain Pari (1982 SCMR 738). He further argued that the findings of fact did not attract the revisional jurisdiction under section 115 of the C.P.C. He referred the cases of Suleman v. Bagh A.I (1982 SCMR 938), Muhammad Rauf and 10 others v, Muhammad Abbas and another (1994 SCMR 973) and Rasul Bux v..Gul Bibi and another (PLD 1978 Quetta 162) in support of his contentions.
8.I have considered the arguments of the learned counsel for the parties. I have also persued the original record of the trial Court in the case. The pivotal question in the case is as to whether the learned appellate Court had acted in the exercise of the jurisdiction illegally or with material irregularity on Issues No. 1 and 2 warranting the interference by this Court in the exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure.
9. In their written statements filed on 14-9-1976, the respondents Nos. l and 2 had denied-the very existence of any road, thoroughfare or any passage which was the subject-matter of the dispute between the parties. The learned trial Court had to visit the site personally to verify the physical position. It was found that there was the road/public thoroughfare on the spot. Even the D.Ws.3, 4, I and h in their statements, admitted the existence of the road/public thoroughfare 'marked 'A" as specified in the plaint. D.W.3, Bashir-ud-Din, D.W.Q Muhammad Saddique, and D.W.5 Ghulam Rasool admitted in their statements that a public utility store, post office, a Government Primary School and a graveyard were also located along side the road in dispute and that general public.
Had been using the said road.' D.W.5 Ghulam Rasool and D.W.6 Mean Sirai Din also admitted that if the wall was constructed along side the road in question. No other passage would be left for the petitioner and other people to have any access to the Jhang Road. D.W.6 also stated that there was a hand pump on the road which was being used by the general public. Similarly, P.W.13 Muhammad Tqbal and P.W.14 Riaz Ahmad also stated that if the road marked 'A' was closed, the petitioner would have no other passage or access to the Jhang Road. These P.Ws. Were not cross-- examined on this material aspect of the case, and their statements remained uncontradicted.
Moreover, a documentary evidence Exhs.P.I to P.5 and P.14, the accuracy and correctness of which was duly proved by P.Ws.l, 2, 3, 4, 7 and 15 also substantiated the plea of the petitioner, that the road in dispute was a public thoroughfare and was in existence and use at least since 1954. It may be pertinent to state that the P.Ws.I, 2, 3, 4, 7 and 15 were public servants. They stated that the documents/maps plans showing the road in question had been prepared under the Government's authority for public purpose. Therefore, authenticity or accuracy of these documents is beyond any doubt. Mere misdescription of the squares numbers in the plaint, even if any, would not make any material difference. Both the parties very well-knew as to the physical location and the identity of the road in dispute (markdd "A").
10. In the presence of voluminous documentary and oral evidence on record to prove the existence and use of the public road in dispute, the learned appellate Court acted with material illegality by ignoring the relevant evidence on the record and by recording its findings primarily with reference to various Jamabandis of the land adjacent to or underneath the road in dispute by laying too much emphasis on particular square numbers. The maps and plans produced by the petitioner were relevant and admissible in evidence, and their; authenticity was also duly proved by the P.Ws.
Therefore, there was no reason for not considering their evidentiary value. Moreover, no objection had been raised from the side of the respondents as to the admissibility of the documentary evidence produced by the petitioner-Mills. In the case of Muhammad Suleman and others v.
Badaruddin and another (AIR 1940 Lahore 309) it was held that where no objection was taken as to the accuracy of the plan, the same would not become inadmissible on the ground that its accuracy had not been established properly in accordance with the provision of section 83 of the Evidence Act. The Privy Council in the case of Secretary .Of State for India v. Maharaja Birendra Kishore Mamikyo and others (AIR 1916 Privy Council 141). Observed that in absence of the evidence to the contrary the survey maps would be assumed to be accurate under section 83 of the Evidence Act. Similarly, in the case of Mst. Bibi Wakilan v. Deo Nandan Prasad and others (AIR 1921 Patna 268 (DB)), a Division Bench of Patna High Court took the view that under section 86 of the Evidence Act, the maps of survey in India for revenue purposes were the official documents prepared by the competent person and admissible as valuable evidence of the state of things at the time they were made. '
11. In the light of the above discussion, due consideration was required to be given to the documents Exhs.P.I to P.5 and 14 and their evidentiary value ought not have been discarded by the learned District Judge on mere technicalities, particularly, when these documents had been duly proved by the oral evidence.
12. The learned trial Court acted properly in placing reliance on EXh.P.I to P.6 and P.14 supported by the statements by P.W.4 Muhammad Aslam, P.W.5 B Muhammad Rashid, P.W.6 Muhammad Yousaf, P.W.8 Muhammad Saddique, P.W.9 Abdur Rashid, P.W.11 Nazir Ahmad, P.W.12 Sarfraz Ahmad, P.W.13 Muhammad Iqbal and P.W.'14 Riaz Ahmad. It rightly came to the conclusion that public road in dispute was being used for twenty years and that the existence of the road was also admitted by D. W.1 Muhammad Afzal, D. W .3 Muhammad Bashiruddin, D.W.4 Muhammad Saddique and D.W.6 Siraj Din. Learned Civil Judge also carried out the spot inspection and found the matelled B road/public thoroughfare being used by general public. It was, therefore, proved that the petitioner-mills was in the use of the said public road by exercise of the right of easement in terms of section 15 of Easements Act 1882 for more , than 20 years even if it was treated to be a private road. It is well-settled that an! Easement is a right possessed by an owner of the property for its beneficial enjoyment of appurtenant property owned by another person and that this right accrues in respect of the property owned by someone else. Admittedly, the land on which the public road/thoroughfare in question was constructed was originally an evacuee property which was given to the Provincial Government in exchange for the state land. The road in question is also not a private road of any private individual but public road for the public use. In view of the evidence on the record, the petitioner-mills, their employees and other general public had the right to use this public road/thoroughfare in question. The Government had already provided various civic amenities for the general public such as Post Office, Government Primary School, and public Utility Store along side this road. These amenities are in the nature of necessities of life and the petitione r--mills had the right to use public road in question in order to have access to avail the amenities provided by the Government. Learned counsel for petitioner aptly placed reliance on the cases of "Nawab Muhammad Akbar Khan" (AIR 1942 Pesh.17), Pakistan National Oil Ltd. And another" (1980 SCMR 686) and Abdullah and another (1988 CLC 1301) in support of his contentions that a person had a right in the immediate neighborhood of the local public thoroughfare to maintain a suit for removal of obstruction without proving special damage. Reliance can also be placed on the judgments in the cases of Harish Chaindra Sh$ha v. Harish Chandra Chuckerbutty and others (AIR 1923 Calcutta 622 (DB)), Ranjeet Singh and others v. Ram Nath Singh (AIR 1976 Allahabad 417), Municipal Board, Manglaur v. Mahadcoji Maharaj (AIR 1965 SC 1147), Godavari Bhai v. Cannanore Municipality (AIR 1985 Kerala 2), Rajpur Colliery Co. And others v. Pursottam Gohil and another (AIR 1959 Patna 463) and Saghir Ahmad v. State of U.P and others (AIR 1954 SC 728).
1988 CLC 1301). The learned trial Court was right in deciding the Issues Nos. l and 2 in favour of the petitioner. Needless to say that the respondent No. 1 is a Government department and the road/thoroughfare, which is the suit property is being legitimately used by the petitioner-mills whose property is alongside the said road.
13. The learned appellate Court did not proceed on correct legal principles in refusing to apply the ratio of the judgments in the cases of "Nawab Muhammad'Akbar Khan" (AIR 1942 Pesh. 17) and "Pakistan National Oils Limited" (1980 SCMR 686). In the case of Godavari Bhai (AIR 1985 SC 728) it was held that a person whose land was adjoining the public street had right of accessat its every point and that even construction of building by Municipal Council on public streets which were vesting in it was not permissible.
14. Another question arises as to whether the petitioner was able to prove its right of easement of necessity over the public road/thoroughfare, the subject--matter of the civil suit, as visualized by section 13 of the Easements Act, 1882. I find that the evidence of P.W.13 of the Muhammad Iqbal and P.W.14 Riaz Ahmad was not impeached by the respondents on this aspect of this case. They categorically stated that there was no alternate passage if the road, i.e. The suit property was closed. This statement also receives further support from the statements of D.W.5 Ghulam Rasool and D.W.6 Mian Siraj Din. This material piece of relevant evidence was not taken into consideration by the learned appellate Court while reversing the judgment and decree of the learned Trial Court.
There is no cavil with the law laid down in the cases.Of "M/s Pakistan Warrant Ware-house Ltd."
(1991 SCMR 1199) and "Abdul Hamid Shah" (1991 SCMR 815) referred to by the learned counsel for respondent No. 1. It was held that consideration of reasonable enjoyment of property furnished no test for creation of such right of easement of necessity nor would convenience be the test for creation of such right. It was further observed therein that there must be an absolute necessity and not a convenient mode of enjoyment of the property within the meaning of section 13 of the Easements Act. However, in the present case there is . Sufficient. Evidence on record to prove that the right of the C petitioner to the use of the public road-'was an absolute necessity and that the petitioner had no alternate passage of access to the Jhang Road. I am Mirza Ahmad J'an v.
Ghulam Hassan (AIR 1944 Lahore 417), Ahdul Karim N . A.I Zaman (1993 MLD 1481), Dawtint v. Maung Kywe and others (AIR 1936 Rangoon 561 and of "M/s Pakistan Warrant Ware House Limited (1941 SCMR 1199) and Abdul Hamid Shah" (1991 SCMR 815).
15. In .The, light of the above discussion, I find that the learned appellate Court did not act legally in recording its findings on issues I D Nos. l and 2.
16. Lastly the objection of Ch. Muhammad A.I, the learned counsel for respondent No.3 as to the competency and maintainability of the present revision petition also needs to be dealt with. He vehemently argued that the scope of the revision was very much limited and that there was no ground to interfere under section 115 of the Code of Civil Procedure even. If a different view on the evidence could be taken by this Court. Ordinarily, the questions of appreciation or reappraisement of evidence do not call for interference by this Court in its revisional jurisdiction. But where the lower appellate Court interferes with the `findings of the trial Court without properly dealing with the logic of the findings the interference by this Court may be called for. The scope of revisional power under section 115 of the Code of Civil Procedure is not that much limited as suggested by the learned counsel for the respondent No.3. In the instant case, I find that the evidence on the record was misread and was kept out of C consideration, in its material aspects, by the learned appellate Court. The conclusions drawn by the learned appellate Court could not be so drawn on the basis of evidence led by the parties. This Court has the ample power under clause (C) of section 115 of C.P.C. To interfere and to pass such orders as the facts and circumstances of the case may warrant where the suhordinate Court is found to have acted in the exercise of its jurisdiction illegally or with material irregularity. Even the additional evidence can be recorded. By this Court in appropriate cases to secure the ends of justice in the exercise of revisional jurisdiction. Refer the cases of Jan Muhammad Khan v. Shah Mir 14itssain, Makhmand and another (1985 SCMR 2029), Jam Pari, (1992 SCMR 786) Mohabbat v. Assad Ullah Khan (FLD 1989 SC 112), Chulam Muhammad and another v. Muhammad Aslam and another (PLD 1993 SC 336), Riasat A.I v. Muhammad Jaffar Khan (1991 SCMR 496), Muhammad Din v. Muhammad Sain (1996 SCMR 1918), Noor Muhammad and others v. Khamisc (1993 CLC' 586), Malik Hashim Din v . Bashiruddin (1992 CLC 578) and, Hassan Amin v. Khurshid AnLC 287).
1991 SCMR 496) it has been held that the power conferred under section 115 of .The C.P.C. Is an exceptional but a necessary power intended to secure effective exercise of High Courts superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of subordinate Courts. Such a power should not be inhibited by technicalities of procedure of entirely by the conduct of the parties. It has been further observed that basically section 115 of C.P.C. Declares the inherent powers which a High Court at the apex has in respect of the superintendence over Courts subordinate to it, especially those which are subject to its appellate jurisdiction. In the facts and circumstances of the present F case, the interference by this Court with the impugned judgment and decree passed by the learned appellate Court is called for.
17. For the foregoing reasons, this revision petition is allowed The impugned judgment and decree dated 18-7-1981 passed by the learned District Judge, Faisalabad, are set aside. Consequently, the judgment and decree dated 10-6-1980 passed by .The learned Civil Judge, Faisalabad, whereby the civil suit of the petitioner was decreed are restored. There shall be no order as to costs.