Hamid Shah, petitioner/plaintiff filed suit in the Court of Civil Judge, Kohat Camp Hangu seeking declaration to the effect that the respondents/defendants have no right to close the path of the petitioner/plaintiff situated in Khasra No.2616 leading to the lands of the plaintiff situated in Khasra Nos.2610 and 2613. Permanent injunction against the respondents/defendants restraining them from interfering into the suit path was also prayed for. Decree for possession of the suit path was also prayed for in the plaint. The said suit was resisted by the defendants by filing written statement. The learned trial Court framed as many as nine issues, recorded pro and contra evidence of the parties, dismissed the suit of the petitioner/plaintiff vide judgment and decree dated 12-11-1997. Feeling aggrieved of the said judgment and decree, the petitioner/plaintiff filed Appeal No.27/13 of 1997 in the Court of learned Additional District Judge, Hangu which too was dismissed vide judgment and decree, dated 9-3-1998. Being not satisfied with the judgments and decrees passed by the Courts below, the petitioner/plaintiff filed the revision petition in hand.
2. Mian Hisamuddin, Advocate, learned counsel representing the petitioner/plaintiff argued that Khasra No.2616 is comprised of land measuring 159 Kanals, 19 Marals and is Shamilat Deh. There was a path in the said Khasra number i.e. 2616 which was used by the plaintiff/petitioner since the time of his forefather for going to his fields comprised in Khasra Nos.2610 and 2613. The said path was unlawfully blocked by the respondents/ defendants. The petitioner/plaintiff had also filed complaint under section 133, Cr.P.C. But the was directed to approach the competent Civil Court for his redress, therefore, he filed the suit in hand. He further argued that not only the petitioner/plaintiff appeared and supported his version but the leaders of the locality and the Patwari Halqa also supported his case. The learned trial Court in order to find out the factual position had also appointed Mr. Iqbal Hussain, Advocate as Local Commissioner who inspected the spot and submitted his report showing the path in Khasra No.2616 leading to the fields of the petitioner which was used by the petitioner. The said Local Commissioner appeared as C.W.1 and supported the case of the petitioner/plaintiff but the Courts below failed to appreciate the evidence produced by the petitioner/plaintiff.
3. On the other hand Mr. Farhad Ali, Advocate representing the respondents/ defendants argued that the petitioner/plaintiff had produced Revenue Record pertaining to the years 1971-72 to 1984- 85 which do not indicate any path in the said Khasra No.2616. The Patwari Halqa has stated that the recent alternate path leading from Khasra Nos.2617 and 2618 which is used by the petitioner/plaintiff for going to his fields. It was also argued that the petitioner/plaintiff had filed criminal complaint under section 133, Cr.P.C: which was dismissed by the Assistant Commissioner, Hangu on merits. The revision filed against the said order was also dismissed on 5-4-1983. In both the judgments it was confirmed that there was no path leading from Khasra No.2616. It was also argued that as per report of the Local Commissioner there was an alternate path leading from Khasra Nos.2605 and 2607 and the said path had nothing to do with Khasra No.2616. Further argued that there was concurrent findings of fact recorded by the Courts of competent jurisdiction which need no interference. Reliance is placed on Nazir Ahmad v. Umara and others 2002 SCMR 1114.
4. I have heard the learned counsel for the parties and have perused the record.
5. The argument of the learned counsel for the petitioner/plaintiff that there was a path leading from Khasra No.2616 which was used by the petitioner/plaintiff since the time of his forefather for going to his fields comprised in Khasras Nos.2610 and 2613 has no force. The evidence available on record which consists of Fard Jamabandi for the years 1971-72, 1984-85 and Aks Shajra Khisttwar, Exh.P.W.1/1, Exh.P.W.1/2 and Exh. P. W.1 /4 do not indicate any path in Khasra No.2616. Moreover, Gulshan Mahmood. ADK. Kohat was examined as D.W.1 who brought on record Goshwara regarding Khasra No.2616 measuring 159 Kanals, 19 Marlas Exh.D.W.1/1 and stated that there was no path/thoroughfare in the suit property i.e. Khasra No.2616. This witness was not cross-examined though opportunity was given. It is by now settled law that if a witness is not cross-examined on the fact and his statement goes un rebutted and unquestioned, such statement can be taken asp correct. Reliance in this regard is placed on Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700, Mst. Zargoon and others v. Shadana and others 2002 CLC 1539 and Haji Din Muhammad through L.Rs. v. Hajira Bibi and others PLD 2002 Pesh.
21. It is also on record that the petitioner/plaintiff had filed complaint under sections 133/135, Cr.P.C. In the Court of learned Assistant Commissioner, Hangu alleging that the respondents/defendants had blocked the common path which had been dismissed vide order EXh.D.W.1/4. He had filed revision petition in the Court of learned District and Sessions Judge, Kohat which had also been dismissed vide judgment/order Exh.D.W.1/5. The learned trial Court in order to find out correct position had appointed Mr. Iqbal Hussain, Advocate as Local Commissioner who inspected the spot in presence of the parties and submitted his report Exh.C.W.I/1. As per the said report, there was an alternate path leading from Khasra Nos.2605 and 2607 to the fields of the petitioner/plaintiff and the said path (alternate path) had nothing to do with Khasra No.2616. The report of the Local Commissioner had gone unrebutted from the petitioner/plaintiff's side. When the report of the Local Commissioner after spot inspection had gone unrebutted and was made evidence in the case, the trial Court had justifiably recorded finding on the strength of that evidence because the said evidence was cogent and sufficient. Reliance in this regard is placed on dictum Akbar Ali and others v. Province of Punjab and others 1990 CLC 718, Government of N.-W.F.P. Through D.C., Bannu and 2 others v. Muhammad Khan 1990 CLC 1898 and Noor Hussain v. Fauji Foundation Hospital 1989 CLC 1.
6. Another aspect of the case is that the petitioner/plaintiff had alternate access to his field and he used the same at his leisure. Therefore, the learned Courts below had B rightly declined the right of easement to the petitioner/plaintiff.
7. I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference by this Court. Resultantly this revision petition is dismissed. There shall be no order as to costs.
Q.M.H./M.A.K./635/P