' On 20-11-1982, the petitioner filed a suit against the respondents. In the plaint it was stated that he is owner of the house mentioned in para. 1 of the plaint; that towards the' South of the said house is a 10 feet private joint street of the parties and across the street is the house of the respondents; that there are apertures in house of the petitioner opening towards the said street and there are two ventilators, window and one door in the ground-floor and four windows in the first floor; that the water from the roof of the house of the petitioner also flows through the spouts and drainage into the said street where the water is drained away from Pakka drain constructed in the said street; that these apertures and the drainage is there for the last more than 100 years being used as such. With these averments, the petitioner claims to have acquired easement of light, air and .Flow of water; that the petitioner works for gain in England and taking advantage of his absence the respondents have closed the apertures by constructing a wall upto the level of ground-floor of the said house. Similarly obstructions have been placed against the spout and the drains and the petitioner has been deprived of the use of the same. As a result of this later activity the building has developed cracks; that the respondents have constructed a shop of Hardware. It was then apprehended that the respondents are taking steps to close all the remaining apertures of the house. With these averments, a permanent mandatory injunction was sought, directing the respondent to remove the encroachment from the joint street and to restore the same and similarly to remove the obstructions caused to the apertures, the spouts and the drainage. A permanent injunction was also sought restraining the respondents from making any encroachment in the street and from closing the other upper portion. In the written statement, the respondents took the plea that the street is exclusively owned by them and is in their possession.
The remaining allegations were denied. Following issues were framed by the learned trial Court:- "(1) Whether the suit is not maintainable? OPD
(2) Whether the suit is bad due to non-joinder of parties? OPD
(3) Whether the suit is bad due to misjoinder of parties? OPD
(4) Whether the plaintiff is not owner of the property in question and therefore, has got no right to file this suit? OPD
(5) Whether there exists no street? OPD
(6) Whether the plaint is liable to be rejected under Order 7; rule 11? OPD
(7) Whether the plaintiff has got easement rights regarding the alleged street and the defendants have got no right to raise any sort of construction which will amount to destroy these rights? OPP.
(8) If Issue No,7 is proved then whether the plaintiff is entitled to decree prayed for? OPP
(9) Relief."
' Evidence of the parties was recorded. The learned Trial Court decreed the said suit of the petitioner vide a judgment and decree, dated 15-6-1988. The respondents filed a first appeal which was heard by a learned Additional District Judge, Gujrat who allowed the same and dismissed the suit of the petitioner.
2. The learned counsel for the petitioner contends that the learned Additional Distract Judge, Gujrat has misdirected himself while observing that easement attached to evacuee property stands extinguished upon acquisition of the same by the Federal Government. According to the learned counsel the observation is violative of the law laid down by the Honourable Supreme Court of Pakistan in the case of Mohsin Ali and another v. The State ,(1972 SCM R 229) and Imam Ali v.
Muhammad Din and others (1989. SCMR 960) as also a judgment of this Court in the case of Mst.
Jannat Bibi v. Chaudhri Azim Bakhsh (1994 CLC 1695). Further contends that the judgment of the learned Additional District Judge, Gujrat proceeds in violation, apart from the evidence on record, of his own Inspection Note prepared by him while he visited the suit properties. Contends that the evidence on record has been misread. The learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge by relying upon a judgment in the case of Muhammad Ramzan v. Mirza Naseer Beg (1980 CLC 1555).
3. I have gone through the copies of the records, appended with this civil revision, with the assistance of the learned counsel for the parties. Now there is absolutely no dispute that both the properties stood constructed at least sometimes before the independence of the country by the non- Muslim/evacuee owners. The suit was filed on 20-11-1982 by the petitioner. Now. Whereas the learned trial Court, apart from the other evidence on record, has relied upon a report of a Local Commissioner present on record as Exh.P.W.1/1. The learned Additional District Judge opted to inspect the site and has prepared an Inspection Note and has solely relied upon the same while passing the impugned judgment and decree. Now I have examined the said report, Exh.P.W.1/1 as also the Inspection Note of the learned Additional District, Judge Gujrat, which is available on page 20 of the Paper Book, with the assistance of the learned counsel for the parties. I find that so far as the ground position on the spot is concerned, the said Local Commissioner report and the said Inspection Note are verbatim. I, therefore refer to the Inspection Note of the learned Additional District Judge, Gujrat. He has noted that the properties are adjacent to each other and that towards South of the property of the petitioner, there is the property of the respondent; that in between these two properties, there is a shop of Sui Gas appliances and he entered the property through the said shop and, found a place which was like a street of about 10 feet width; that on some portion of this street the said shop is constructed; that 3 windows of the first floor of the house of the petitioner open towards this place and that some ventilators are also there and a Parnala coming out of the house of the petitioner is falling in this place. The learned Additional District Judge found that the wall is an old construction while the Sui Gas shop is a new construction. Thereafter, the learned Additional District Judge went to the house of the petitioner and noted that in the ground-floor a door is there towards the said street and that the windows and the door are quite old. The learned Additional District Judge also noted that this door stands closed by the construction of the said Sui Gas shop which is in possession of the respondents. The learned Additional District Judge also found ventilators in the ground-floor open towards the said street. Almost to the similar effect is the report of the Local Commissioner, Exh . P. W.1/1. Now respondent No .1 has appeared as D.W.1. In his examination-in chief, he proceeded to state the facts which are not at' all available in the written statement, referred to by me above. He proceeded to state that the house belongs to respondent No,2, his wife and her sister Batool. Then he refers to some partition between the sisters. Be that as it may, it has come in his statement that the sister had died issueless. Now in his cross-examination, he proceeded to deny that there are apertures in the southern wall of the ground-floor of the house of the petitioner. Needless to state that this averment stands falsified by the said report and the Inspection Note of the learned Additional District Judge, Gujrat. He expressed ignorance that how many windows are there in the Southern wall of the first floor of the house of the petitioner. He, however, admitted that a spout for drainage of the water from the roof of the house of the petitioner falls in his courtyard; that the spout is Pacca and the water then falls into a Pacca drain along the southern wall of the house of the petitioner and flows towards road. He, however, stated that Pacca drain belongs to the respondents. He does not remember as to when the construction was made by him. He denied the suggestion alleging closure of apertures in the ground-floor by stating that there are no apertures at all. He is the only witness for the respondents. On the other hand, I find that P.W.1 is the learned Advocate who made the report, Exh.P.W.1/1 while P.W.2 is the petitioner. The statement made by the petitioner is fully corroborated by the said report as also the Inspection Note, the former relied upon by the learned trial Court and the latter relied upon by the learned Additional District Judge as also by the statement, of respondent No,1 himself.
4. I also find that the learned Additional District Judge has misread the sale-deed; Exh.D-1, whereby the respondent No,2 and her sister purchased the house. There is a clear recital in the said sale- deed, Exh.D-1 by the vendor of respondent, namely, Raja Ali Muhammad that except the northern wall of the house the remaining walls are exclusively owned by the vendor. Regarding the northern wall, it has been stated that 1/3rd portion of the same exclusively belongs to the said vendor while 2/3rd is joint with Nazar Muhammad, Photo- grapher (i,e, the petitioner). According to the plan prepared by the Commissioner the obstruction has been made by constructing a garage (described as Gas shop by the learned Additional District Judge) by the respondent.
5. Over all reading of the evidence thus shows that barring the said garage or the Sui Gas shop the remaining construction is old. Admittedly both the properties were constructed by the evacuee non-Muslims before the independence of the country; that the apertures were there in the ground- floor and had been closed because of the said construction by the respondents and that the spout does fall into the Pacca drain running along the southern wall of the house of the petitioner. There is no denial even on the record that the doors, ventilators and windows did not so open towards the said place, stated even by the learned Additional District Judge to be one like a street. Thus all the ingredients of an easement of light, air and flow of water stand proved on the record to be acquired by the predecessor of the petitioner or for that matter of the respondents and that the user had been in the manner prescribed for more than 20 years.
6. So far as the main reason which weighed with the learned Additional District Judge is concerned, i,e, that the easement attached to an evacuee property extinguished on its acquisition, the same is absolutely incorrect and the contention of the learned counsel for petitioner, in this behalf is fully supported by the said judgments of the Honourable Supreme Court of Pakistan noted by me above . The Honourable Supreme Court of Pakistan has laid down that the term "encumbrance" does not include the rights of easement vested in owners of "adjacent property". On the other hand, in the said case of "Muhammad Ramzan", apart from the fact that the circumstances were completely different notice of the said judgment of the Supreme Court of Pakistan in the case of "Mohsin Ali" was not taken. In the said case the evacuee property which was being termed as dominant tenement as well as subservient tenement was, in fact, found to be owned by the same Hindu owner. His Lordship did point out that by its very nature the right of the easement can be exercised over a subservient tenement and where the two heritages are owned by the same person, there is no question of any existence or exercise of such right.
7. In the present case, it is a matter of record, that both the properties were owned by the different evacuee owners.
8. For all that has been discussed above, this civil revision is allowed. The judgments and decrees, dated 22-7-2000 of the learned Additional District Judge, Gujrat is set aside while the one passed by the learned trial Court on 15-6-1988 is restored.
9. No order as to the costs.