This revision petition is directed against the judgment and decree of the learned Additional District Judge, Bannu dated 21-2-1994, whereby while accepting the appeal, the judgment and decree of the trial Court dated 31-7-1991 was set aside and suit of the plaintiff was dismissed.
2. Brief facts leading to this litigation are that the plaintiff had instituted a declaratory suit followed by a relief for perpetual injunction to the effect that he has been using the path shown in the Settlement Record in Khasras Nos. 1220, 1223 and 1225 situated on the eastern side of his Serai located in Khasra Nos. 1221 and 1222, to approach Bannu-Dera Road, for a considerable long time and thus has acquired a legal right. The defendants have no right to raise construction in the shape of shops, walls and houses etc. To block the said path and are obliged to remove the encroachment therefrom.
3. The suit was contested by the defendants by filing written statement. The divergent pleadings of the parties gave birth to the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether Court has got jurisdiction to try the present suit?
(3) Whether the suit is bad for non joinder of necessary parties'
(4) Whether the plaintiff is estopped to sue the defendants?
(5) Whether the suit is within time?
(6) Whether the suit is incompetent in its present form?
(7) Whether a Bandobasti pathway is available to the plaintiffs Serai on the eastern side which is being used for having access to the main Dea road since long time and defendants have no right to cause obstruction in the said passage by construction of wall and shops etc. ?
(8) Whether defendants Nos. l to 6 have purchased six Marlas in Khasra No. 1225 which area was previously earmarked for "Bagh" and plaintiff has never used it as passage?
(9) Whether plaintiff is entitled to the decree as prayed for?
(10) Relief.
4. It is pertinent to note that previously the plaintiff has instituted suit No.961 on 5-4-1976. Which was dismissed as withdrawn by orders of the High Court dated 22-1-1977. ,
5. The learned trial Court at conclusion of the trial decreed the present suit of the plaintiff on 31-7- 1991. The defendants were not contented with the verdict of the trial Court and preferred Civil Appeal No.59/13 of 1992 which was finally disposed of on 21-2-1994 through the impugned judgment hence this revision.
6. The plaintiff basis title in Khasras Nos. 1221 and 1222 on the strength of a declaratory decree passed in his favour in Suit No.435/1 of 1974 on 20-1-1975. The plaintiff has sued Abdul Qayyum and others on account of purchaser of the property.
7. The case of the plaintiff is that he has a right of passage through Khasra No. 1220. The burden heavily lay on his shoulder to prove that his vendors had used the path continuously, openly and without any interruption for a long time till they parted with their rights in favour of the plaintiff.
Unfortunately, there is no evidence available on file to this effect.
8. There is another judgment bearing mark Exh.DW.2/1 passed on 29-9-1968 in Civil. Suit No.298/1 of 1967 in favour of Sardar Ahmad Sadiq and Ashiq Ahmad Khan against the plaintiff and his vendor Abdul Qayyum in respect of Khasra No. 1220. It shows that Juma Gul, the defendant therein, had claimed the suit property as lease property and not as a path. It was observed in the judgment that Khasra No. 1220 was shown as ownership of Serdar Ahmad Sadiq etc., the plaintiffs of the said case. In this view of the fact, the matter has become res judicata, hence the plaintiff could not re- agitate the same through the present suit.
8. Learned counsel for the petitioners had vehemently argued that in the settlement record of 1904-5, copy Exh. D.W. 2/1, Khasra No. 1220 is shown as "Rasta Path". He was of the view that once a property is recorded as such, then it becomes a thoroughfare for all practical purposes. However; his this contention is misconceived. There is a difference between the thoroughfare and a private path. A thoroughfare, which happens to be Shamilat, is used and enjoyed by every person of the village irrespective of the fact whether he is owner or not, and a person if recorded its owner cannot convert it to his own use as laid in PLD 1996 Peshawar 19, but if there is a private path, then an owner thereof shall certainly have a right of use and conversion according to his own requirements and choice. Such a path shall be as good property and ownership as any other property can be. PLD 1985 Pesh. 99 (ii) can be conveniently quoted in support of this proposition.
9. Patwari Halqa was examined as P.W.2 who has pressed into service the only record which is current Jamabandi of 1979-80 as Exh. D.W. 2/1. Khasra No.1220 is recorded "Ghair Mumkin" within an area of eight Marlas and its kind is shown as "Awal" in Exh. PW. 2/1, copy of Jamabandi of 1979-80. In its column of ownership, Haji Sadullah Khan and others have been recorded as owners and the entry in the column of cultivation is as under:-- There is a note in red-ink in its remarks column to the following effect:----
10. It will show that Khasra No. 1220 is not recorded as path in the current Jamabandi. This document was, pressed into service as Exh. PW 2/1 by the plaintiff. Since the entries of this Jamabandi in respect of Khasra No. 1220 have not been challenged in the plaint to be declared as incorrect, therefore, it will be presumed that the plaintiff had admitted its contents to be correct. No intervening record has been brought on file in-between Misl-i-Hikiyyat 1905 and Jamabandi of 1979-80. About 75/76 years have elapsed during the said period and the property would have changed its. Character. Besides it, no other document from Wajib-ul-Arz or any revenue record has been brought to light to show that if Khasra. No. 1220 is, a Shamilat thoroughfare having its access to general public.
10. Learned counsel for the petitioner had placed his hands on copy of the sale-deed Exh. PW.3/1 vide which the defendants had purchased certain property to show that it contained that there is a path towards east of Khasra No. 1225 leading to a garden. But the same would also not support his contention. If the contents of the sale-deed to the extent of the said path is taken into consideration, the same would show that it was a private path reserved by the vendors for approach to their garden.
11. Viewing the case of the plaintiff from any corner it can be safely held that he had failed to lay his hands on Khasra No. 1220 on the strength of any law, usage or custom.
12. There is another hurdle in the way of the plaintiff. The previous instituted suit of 1977 was withdrawn in the year 1989 with permission to bring fresh suit, In this respect, reference can be made to Order XXIII, Rule 11, C.P.C. Which reads as under:--- "2. Limitation law not affected by first suit.--In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
12. It has been alleged in para. 6 of the plaint and admitted in evidence by the plaintiff that the suit path was closed by raising construction in the year 1976. If a right is based on easement, then the suit is to be instituted within two years of the end of such right. The plaintiff was under obligation to have proved the enjoyment of such right for continuous twenty years without interruption, but has miserably failed to establish as such through cogent evidence.
13. The not result of the discussion is that the judgment and decree of the learned Additional District Judge is well-founded being well-reasoned and hence calls for no interference. No misreading or nonreading of evidence or any error of lack or excess of exercise of jurisdiction on the part of the Appellate court has been brought to light.
14. Resultantly, this revision petition does not merit acceptance being devoid of substance.
Therefore, it is dismissed. Parties are left to bear their own costs.