Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Petition No.431‑R of 1985, decided on 15th April, 1986.
(From the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 15‑9‑1985, passed in Civil Revision No.64 of 1979).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Appreciation of evidence‑‑Controverted question of fact‑‑Concurrent finding of three Courts upholding claim of plaintiff‑‑No question of law requiring further examination raised‑‑Leave to appeal refused.
Fazal‑i‑Raziq v. Zaman Shah P L D 1980 S C 193 ref.
Abdul Hakeem Khan, Senior Advocate Supreme Court and Muhammad Aslam Jan, Advocate‑on‑Record (absent) for Petitioners.
Nemo for Respondents.
Date of hearing 15th April, 1986.
‑‑The petitioners, the unsuccessful defendants seek leave to appeal against the judgment of the Peshawar High Court, dated 15th of September, 1985, whereby a civil revision petition filed by them was dismissed, maintaining thereby the judgment of affirmance passed by the first appellate Court on the 30th July, 1979.
2. The parties went to trial on a number of issues but the one relevant at this stage is issue No.7 which reads as follows:‑
"7. Whether the plaintiff and defendants 2 to 6 have got a right of passage from the disputed path in order to proceed to their cattle‑sheds and houses constructed in Khasras Nos. 63 and 64 along with their cattle and defendant No.1 is not competent to obstruct this passage O.P.P."
A commission was appointed and on the basis of its report and the evidence on record, the trial Court recorded the following conclusion on merits:‑
"Keeping in view this position one can easily come to the conclusion that path the housing property of the defendants i.e. Khasras Nos. 63, 64 passes through Khasras Nos. 62, 73, 74, 75 and 76. With regard to the enjoyment of the way for a period of more than 20 years, I may submit that the housing property falling in Khasra No.63 is since prior to the record‑of‑right for 1946‑47 and since then the way in dispute has been used by the plaintiff which has been obstructed very recently prior to the institution of the present suit. The plaintiff has enjoyed the way over Khasras Nos. 73, 74, 75 and 76 continuously for a period of more than 20 years therefore, I hold that the successor-in‑interest of defendant No.1 are not competent to obstruct his right of way over the said Khasra."
It ultimately decreed the claim against the petitioners. On their appeal, the District Judge affirmed the judgment and decree and dismissed their appeal on the finding that:
"The long user by itself raises a strong presumption that user is as of right especially when there is nothing on record to suggest consent or connivance of the appellants."
Their revision petition, too, was dismissed after discussing at length the evidence led at the trial and the conclusions draw therefrom with the following observations:
"I have not found any material irregularity of the kind of misreading and non‑reading of evidence on the part of the Courts below in arriving at concurrent findings at the plaintiff has since prescribed right of easement over the disputed path and that the act of blocking the disputed path by the defendant petitioner was unlawful. There is nothing to be rectified in the exercise of revisional jurisdiction."
3. Mr. Abdul Hakeem Khan, the learned counsel for the petitioners, in seeking leave to appeal contended that the case set out in the plaint was different than what was reflected in issue No.7 and the evidence led at the trial and material placed on the record proved neither. In particular he has drawn attention to our decision in Fazal‑i‑Raziq v. Zaman Shah P L D 1980 S C 193 to the quality and the nature of evidence required to prove satisfactorily the right of easement over others' land. 1 was further contended that such a right could not be claimed or enjoyed by the plaintiff because his land adjoined the public path and he could utilize his own land for access to the public path.
4. A controverted question of fact had been raised in the litigation between the parties and it related to the right claimed by the plaintiff /respondent of passage over the path indicated by him in the plaint. Muhammad Shah, whose sale was pre‑empted by the predecessor‑in -interest of the petitioners, made a positive statement that the plaintiff had been using the path. Such user appeared to be immemorial and as of right and without any let or hindrance by any of the adjoining owners. The path claimed by the plaintiff‑respondent is admittedly not entered in the revenue record and the trial Court took note of what it termed "a local custom" that residents of that area use the Banna of their fields as a path for access to their residential property which facts are not noted down in the revenue record. The plaintiff claimed such right on the boundary of his own field adjoining the property of the petitioners and others in Khasras Nos. 73 to 76. The report of the local commission bears it out and also the fact that the predecessor‑in- interest of the petitioners obstructed such a right of way enjoyed by the plaintiff. On these findings, all the three Courts have upheld the claim of the plaintiff‑respondent and we do not think that the petition raises any such question of law as may require further examination in this Court. Leave to appeal is, therefore, refused.
M . I . Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer