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Civil Petition No.392-L of 1999, decided on 13th February, 2002.

(On appeal from the judgment dated 14-1-1999 of the Lahore High Court passed in C.R. No.
1976 of 1998).

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----S. 4 ---Specific Relief Act (I of 1877), S.54---Constitution of Pakistan (1973), Art.

185(3),--Easement of necessity---Perpetual injunction, grant of---Concurrent findings of fact by
the Court below---Plaintiff filed a suit seeking injunction to restrain the defendant from closing
the passage which was being used by him---Plaintiff claimed that it was a common passage
whereas the defendant alleged that the passage was his exclusive property--Trial Court decreed
the suit and the judgment and decree was maintained by the Appellate Court as well as by High
Court---Contention of the defendant was that the plaintiff before succeeding in the suit had to
establish that they had prescriptive right of easement---Validity---Finding of fact had been
recorded that the passage was not part of the property of the defendant and the same was being
used as passage by the plaintiff and was the only source of approach to his house, therefore, case
of easement of necessity had been established---Findings recorded by the Court below did not
suffer from any legal infirmity---Supreme Court declined to interfere with the judgment and
decrees passed by the Courts below---Leave to appeal was refused.

M. Nisar Arshad Kotla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab,
Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th February, 2002.

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-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 14-1-1999 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 having
failed to do .so, therefore, the suit was liable to be dismissed.

5. We have gone through the 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.

6. Resultantly, this petition is dismissed-and leave refused.

Q.M.H./M.A.K./N-63/S

 
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