NOOR MUHAMMAD vs Mst. WALAYAT KHATOON and others
This petition for leave to appeal arose from a civil suit for permanent injunction filed by the respondents against the petitioner, seeking to restrain the petitioner from closing a passage and constructing upon it, which the respondents claimed was their exclusive access route. The petitioner contended the passage was part of his private property. The trial court decreed the suit in favor of the respondents, finding they had a right to use the passage. This decision was affirmed by the first appellate court, which concluded the passage was the only approach to the respondents' house and had been in common use. The Lahore High Court dismissed the petitioner's revision petition. Before the Supreme Court, the petitioner argued the respondents failed to establish a prescriptive right or easement. The Supreme Court rejected this, holding that the concurrent findings of fact established the passage was not the petitioner's property and constituted an easement of necessity, as it was the sole access route to the respondents' residence. Consequently, the Court found no legal infirmity in the lower courts' judgments and dismissed the petition.
- Does the finding that a passage is the only source of approach to a house establish an easement of necessity?
- Can a revision petition succeed against concurrent findings of fact regarding the status of a passage as an easement?
- Is a suit for permanent injunction maintainable when the plaintiff establishes that a disputed passage is the sole access to their property?
' MUNIR A. SHEIKH, ACTG. C.J.---Leave is sought against the judgment dated 14-1-1999 of the Lahore High Court through which revision petition filed by the petitioner has been dismissed.
2. The respondents filed a suit for permanent injunction restraining the petitioner from closing the passage and raising construction thereon as the said passage was exclusively under the use of the respondents to approach their house. It was contested by the petitioner on the ground that it was part of his property and not a common passage.
3. The trial Court through judgment dated 25-6-1995 decreed the suit by holding that the respondents-plaintiffs had right to use the said passage. An appeal was filed by the petitioner which was dismissed by the First Appellant Court through judgment dated 21-7-1998 by affirming the findings of the trial Court. It was also held that the said passage was the only approach to the house of the respondents-plaintiffs and had been commonly in use. The petitioner filed revision petition before the Lahore High Court which has been dismissed through the impugned judgment dated 144-1999 against which leave is sought.
4. It was argued by the learned counsel for the petitioner that the respondents before succeeding in the suit had to establish that they had prescriptive right or right of easement. They haying failed to do so, therefore, the suit was liable to be dismissed.
5. We have gone through be record and find that a finding of fact has been recorded that the said passage was not part of the property of the petitioner and that the same was being used as passage by the respondent and was the only source of approach to his house, therefore, case of easement of necessity had been established, therefore, the findings recorded by the Courts below do not suffer from any legal infirmity.