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Civil Revision No, 36 of 1978, decided on 4th December 1979.

---- S. 15 read with Displaced Persodg (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 3---Evacuee property--Easement-= Phrase "free from all encumbrances"-House transferred to respondent and shops transferred to petitioner both belonging to same evacuee-No right of easement existing as long as -properties remained in such evacuee's name--Properties acquired by Central Government in 1947 on owner's evacuation and subse quently vesting in Central Government free from all encumbrances Phrase "free from all encumbrances" meaning disappearance of all aggregate of rights including easements house being transferred to respondents, for first time in 1959 and a period of 20 years having not elapsed by time of institution of suit, no right of ease ment, held, accrued to respondent.

Muhammad Afzal.v. Nafis Ahmad and others P L D 1962 Lah. 45 ref.

--- S. 13(a)-Easement of necessity-Plaintiff held, must not only prove existence of right of easement at time of transfer of property to him but also such right being necessary for enjoying transferred property.

Chandar and others v. Bala Pershad and others A I R 1928 Lah. 497 distinguished.

Ch. Muhammad Siddiq for Petitioner.

Sh. Naveed Shehryar for Respondent.

Dates of hearing : 4th and 6th November, 1979.

The petitioner has by this petition called in question the propriety of F the judgment and decree dated 20th November, 1977 whereby the learned Additional District Judge, Gujrat accepted the appeal and decreed the suit of the plaintiff-respondent.

2. It was alleged that for more than 20 years the plaintiff-respondent was occupying the house transferred in his name, and since then he was enjoying continuously the right to pass rain water of his house top from over the roof of the adjacent shops belonging to the petitioner and that the cause of action accrued to him when the petitioner had. recently attempted to obstruct the flow of water by constructing a wall at the site. The right was denied by the petitioner mainly on the ground that no easement existed in respect of property which was once an evacuate property. It was alleged that the petitioner had obtained per mission of the Municipal Committee to raise construction and thAt he was entitled to use his property in the way he liked. The trial Court dis missed the suit, but in appeal to the learned Additional District Judge, the suit was decreed and the plaintiff-respondent was held to have possessed f right of easement.

3. The learned Additional District Judge, while setting aside the findings of the Trial Court, refused to take in view its inspection note because according to him, it was based on conjectures and surmises, and the same was totally irrelevant in respect of the material facts. He observed that the rain water of the roof of some rooms of the respondent's house flowed from over the roof- of the petitioner's shops since at least snore than 20 years, during the time the respondent was continuing in

possession. The right of easement was held to vest in the respondent and the suit was thus decreed. ,

4. An easement is a right which the owner or occupier of land possesses, as such; for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent some thing being done, in or upon or in respect of certain other land not his own. The plaintiff-respondent had in his suit claimed a right of easement to pass the rain-water of his house from over the roof of the petitioner defendant on the ground that he was enjoying this right as an owner of the dominant heritage continuously for a period of. twenty years. But such a right, as stated above, could be exercised if the dominant and the servient heritages were owned by different persons. It is admitted by the parties and evident from the transfer orders placed on record that the house transferred to the respondent and the shops auctioned to the petitioner belonged to the same person namely Devi Dayal son of Hardial Saraf. In such state of affairs no right of easement could exist till the time the proper ties remained in his name. The said Devi Dayal left control of the property in 1947 when he evacuated to India and the same vested- in the Custodian of Evacuee Properties. The respondent may have come in occupation o

the house, but the right of easement did not exist, because by Notification No. U. 8-79/59(3113), dated 28th August, 1959 issued under section 3 o the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) all immovable property in West Pakistan to which the Act is applicable was acquired by the Government of West Pakistan for the Central Government under subsection (2) of section 3 of the Act. A Subsection (3) of section 3 of the Act says that when notification about acquisition is published, under subsection (2) the property mentioned in Notification shall vest wholly and absolutely in the Central Government free from all encumbrances and the interest of the evacuee in the property shall.be extinguished. The phrase "free from all encumbrances" occur ring in section 16 of the Land Acquisition Act (I of 1894) has been held in Muhammad Afzal v. Nafis Ahmad and others (1) 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. It is thus clear that by the publication of the notification the property vested in the Central Government free from all rights including the rights of ease ment. The house was transferred to be ,fespondents for the first time on 2nd December, 1959 and a period of twenty years by the time this suit was instituted did not pass and no right of easement accrued to the respondent, and the suit was premature.

5. It was however, urged on behalf of the respondent that his suit was not based on prescription but on easement of necessity as provided by section 13(a) of the Easements.Act (V of 1882). The easement of necessity arises, where one person transfers or bequests immovable'property to an other, if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement. Chandar and others v. Bala Pershad and others (2) was referred to for showing that where the entire property stood on a slope and before partition all the rain-water which fell on the property was allowed to pass over the

(1) p L D 1962 lah. 45 (2) A I R 1928 hah. 407

,1558 CIVIL LAW CASES. [VOL. 11

courtyard in its entirety and thence into the municipal drain through an outlet, it was held that on partition the right to continue to drain his water on the courtyard was not only continuous but also apparent. This case has different features, because in the instant case there was no ease ment in existence when the property was transferre4 to the respondent. In order to bring the case under section 13(a) of the Act, it was necessary, that the plaintiff-respondent should have established that a right of ease ment existed at the time when the transfer was made and that easement was necessary for enjoying the subject of the transfer. It is not denied that the property in the hands of the parties once belonged to one person and on his migration to India he surrendered it to the Custodian of Evacuee Property who managed it till it was acquired by the Central Government. On acquisition of the property and before transfer of the same to the parties of the instant case, the heritage had lost its dominant and servant character and no easement could be claimed as of right. Nor was it proved that such an arrangement as demanded by respondent was necessary for the enjoyment of the subject of the transfer. The oral testimony of the wit nesses of the parties stating about the slope of one roof higher than that of the other is thus immaterial. The learned Additional District Judge, while remarking that the rain-water had a particular flow which the petitioner was liable to receive at the roof of his shop, had therefore, acted in the jurisdiction illegally and with material irregularity.

For the foregoing reasons the revision petition i3 accepted, the judgment and the decree of the learned Additional District Judge is set aside and the plaintiff-respondent's suit is dismissed with costs throughout.

K. M. A. Petition accepted.

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