| Citation(s) |
|---|
| 2007 SLG 617 2007 SLD 617 2007 SCMR 901 |
Supreme Court of Pakistan
Civil Petition No. 128-Q of 2006, decided on 26th December, 2006. (On appeal from the judgment, dated 7-4-2006 passed by the High Court of Balochistan, Quetta in Civil Revision No. 194 of 2002)
JAVED IQBAL AND RAJA FAYYAZ AHMAD, JJ
Ch. Mumtaz Yousaf, Advocate Supreme Court for Petitioner. Salah-ud-Din Mengal, Advocate-General for Balochistan for
Respondents
Civil Petition No. 128-Q of 2006, decided on 26th December, 2006. (On appeal from the judgment, dated 7-4-2006 passed by the High Court of Balochistan, Quetta in Civil Revision No. 194 of 2002)
JAVED IQBAL AND RAJA FAYYAZ AHMAD, JJ
Ch. Mumtaz Yousaf, Advocate Supreme Court for Petitioner. Salah-ud-Din Mengal, Advocate-General for Balochistan for
Respondents
ABDUL KHALIQ alias MITHOO
VS
Moulvi SHER JAN and others
Law: Easements Act, 1882
Section: 15
Law: Specific Relief Act, 1877
Section: 42,54
(a) Easements Act (V of 1882)--- ----S. 15---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Plaintiff claimed right of way/passage over suit-land for last fifty years without any interruption---Plaintiff's claim was fully supported by his witnesses---Evidence on record showed that right claimed by plaintiff was not uncertain, rather same was enjoyed continuously, peacefully, openly and as right of easement without interruption---Passage claimed was in existence for last fifty years---Uninterrupted and continuous user for a period of more than twenty years prescribed by law would form foundation of a prescriptive right or right to be acquired by prescription, which has accrued in plaintiff's favour---Suit was decreed. Easement Act 1983 by Mian Zahur-ud-Din pages 69-70; Pakistan National Oils Limited v. Sattar Muhammad 1980 SCMR 686; Ramdhin Singh v. Jadunandan Singh AIR 1915 Cal. 486; Valina Rama v. Emperor AIR 1928.Lah. 496; Abdullah v. Ahmad Khan 1988 CLC 1301; Sheo Nath v. Mughla AIR 1938 Lah. 800 and Pakistan Warranted Warehouse Ltd. v. Sindh Industrial Trading Estates Ltd. 1991 SCMR 119 rel. (b) Easements Act (V of 1882)--- ----S. 15---Acquisition of right of easement by prescription---Necessary conditions stated. The following conditions must be fulfilled for acquisition of a right of easement by prescription: (i) The right claimed must not be uncertain. (ii) The right claimed must have been enjoyed. (iii) It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed. (iv) It must have been enjoyed (a) peaceably, (b) 'openly, (c) as of right, (d) as an easement, (e) without interruption, (f) for twenty years or sixty years, if the right is claimed against Government. Out of the last six sub-conditions, (b) and (c) are not necessary in the case of easement of light and air or support. With this exception, all the conditions and sub-conditions must be fulfilled before a right of easement is acquired. Easement Act 1983 by Mian Zahur-ud-Din pages 69-70 ref. JUDGMENT JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment dated…
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