SARDAR MUHAMMAD RAZA KHAN, J.---Chaudhry Azim Bakhsh has been granted leave to appeal under Article 185(3) of the Constitution against the judgment dated 26-4-1994 of the Lahore High Court passed in Regular Second Appeal No,399 of 1972, setting aside the concurrent.Finding of the two Courts below.
2. Despite notices issued, none appeared from the side of respondents.
3. House No,7, Guru Amar-Das Street No,38, Ram Nagar, Lahore, being an evacuee property and Mst. Jannat Bibi being the occupant thereof, was allotted to her through Permanent Transfer Deed
(PTD) dated 10-4-1965. An adjacent property on the back of the house, also being an evacuee property, was acquired by Chaudhry Azim Bakhsh through an auction held on 8-9-1960 and confirmed on 21-9-1960. Permanent Transfer Deed was issued to him on 31-8-1963. Chaudhary Azim Bakhsh constructed a wall in his premises on the point where the two properties abutted each other. Mst. Jannat Bibi (now dead---her LRs impleaded) on 15-6-1971 instituted a suit for perpetual injunction seeking restraint of the construction of wall on the ground that she had matured the right of easement of air and light which was being obstructed by the said wall.
4. The appellant/defendant contested the suit on the grounds, inter alia, that no right of easement at all existed qua the properties in dispute. The trial Court vide its judgment dated 5-10-1971 rejected the plaint. The same was upheld by the lower Appellate Court on 23-12-1971 but was set aside by the Hon'ble High Court in revision. Hence this appeal.
5. Section 15 of the Easements Act, 1882, provides that where the access and use of light or air to and for any buildings have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall. Be absolute. On the other hand, it is an. Admitted fact that both dominant as well as servient heritages had once been evacuee properties. The Central Government had acquired the evacuee property through Notification No,U-8-79/3113 dated 21-8-1959. The legal effect of such acquisition of property by Central Government would be that all rights of evacuees existing till such date shall become extinguished. It is a settled principle of law enumerated in section 46 of the Easements Act that an easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages. In the case in hand, all rights including that of easement vesting in the evacuees would stand extinguished on the day when the Central Government acquired the property and became the owner of both the properties dominant as well as servient.
6. Subsection (3) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 would further elaborate the matter. For facility of reference, the relevant portion is reproduced below: Section 3.--(1) ..............
(2) ... .
(3) On the Publication of a Notification under subsection (1) or subsection (2), the right, title and interest, of any evacuee in the evacuee property specified in the Notification, shall, with effect from the date, of such publication, be extinguished, and the evacuee property shall vest wholly and from all encumbrances."
The term 'free from all encumbrances' means disappearance of all aggregate rights including easements etc. While dealing with the proposition in question with reference to section 3(3) of the Displaced Persons (Compensation and Rehabilitation) Act, an elaborate discussion had been done by their lordships Hon'ble Mr. Justice Shabir Ahmad and Mr. Justice Anwarul Haq in Subedar Muhammad Afzal v, Syed Nafis Ahmad PLD 1962 (W,P,) Lahore 45), They had gone to the extent of holding that the word "encumbrance" included the right of tenancy. The acquisition of property by the Central Government under the aforesaid section was held to be akin to the one contemplated under section 16 of the Land Acquisition Act, "Free from all encumbrances" occurring in section 16 of the Land Acquisition Act, 1894, had been held to mean that all the aggregate of rights in the property are acquired with the result that all easements, tenancy rights and customary rights disappear. This Court in Chairman, Mirpurkhas Municipal Committee v. Begum Jamila Khatoon 1968 SCM R 369 had even gone to the extent that the taxes due to the Municipal Committee were considered to have been extinguished after when the property was acquired by the Government.
The remedy for Municipal Committee to recover such taxes was suggested in requesting the Government to frame rules under section 3(4) of the Displaced Persons (C&R) Act providing for the extent up to and manner in which taxes be discharged from proceeds of the property. This was with reference to the phrase "free from all encumbrances".
7. In Sheikh Nazir Ahmed v. Mian Nazir Ahmed 1982 SCM R 1059 this Court was confronted with a question of easement. In there, two Courts below had directed the construction of a partition wall. It was argued that such construction was likely to affect certain easement rights of passage and doors etc. Of the petitioners therein. This argument was repelled as having no force, inasmuch as question of maturity of any easement rights had hardly arisen in the peculiar circumstances of that case, when both the parties were transferees from the Settlement Department and had no right against one another.
8. This whole discussion brings us to the conclusion the right of easement, if any, extinguishes the moment one person becomes the owner of dominant as well as servient heritages. The Central Government in the year 1959 had become owner of both the properties and thus the right of easement, if any, vesting in the evacuee had extinguished in the year 1959. Such right could not be claimed so long as the Central Government remains owner of both the properties.
9. The admitted facts on record would indicate that the appellant had become owner on 21-8-1963, while respondent (Mst. Jannat Bibi) had become owner on 10-4-1965. No right of easement, therefore, could be exercised at the most up to 10-4-1965. We are mindful of the fact that once the property stands permanently allotted to two transferees, it ceases to remain an evacuee property and the easement rights, if at all available, can be exercised thereafter provided the requirements of section 15 of the Easements Act are fulfilled. Even if we consider that the parties could exercise easement rights after 10-4-1965 or at the most after 31-8-1963 the same had not matured by the year 1971 when the civil suit was instituted in the instant case.
10. The Hon'ble High Court in its impugned judgment has relied upon Imam Ali v. Muhammad Din 1989 SCM R 960 but the facts seem to be distinguishable. It was a matter decided in the absence of the opposite-party because leave to appeal was refused to the petitioner thereof. Moreover, it was observed that "Law of Easement, it is well settled now, is being applied to the evacuee properties transferred under the Settlement Laws". As discussed earlier in detail, there are observations of this Court to the contrary and thus it seems that the above observations were made only from the point when the properties get finally allotted to two different persons and when the evacuee nature of the property is extinguished. It is only thereafter that the law of easement could be applied provided the period thereof as mentioned in section 15 of the Easements Act is complete. The detailed facts and circumstances of the case in the aforesaid ruling are not before us and also are not mentioned in the judgment. The possibility cannot be ruled out that, in view of numerous verdicts of the superior Courts to the contrary, the existence of right of easement qua properties allotted by Settlement Department, might have been considered in existence from the time onward when both properties ceased to be evacuee properties and transferees became absolute owners.
11. Consequently, the appeal is accepted, the impugned judgment dated 26-4-1994 of the Lahore High Court is set aside and concurrent findings of the two Courts below are restored.