IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 519 of 2010. Date of decision: 22.07.2011. Birbal Singh. ….. Appellant. Versus Parkash Chand. ….Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. B.S.Chauhan, Advocate. For the Respondent : Mr. Rajesh Kumar, Advocate. Kuldip Singh, Judge (Oral) . This appeal is directed against the judgment, decree dated 04.05.2010 passed by learned District Judge, Mandi, in Civil Appeal No. 94/2009 affirming judgment, decree dated 12.09.2008 passed by learned Civil Judge (Senior Division), Baijnath, in Civil Suit No. 381/2003. 2. The brief facts of the case are that respondent had filed a suit for permanent prohibitory injunction against the appellant regarding the land comprised in Khasra Nos. 404, 405, 411, more specifically described in the plaint. The appellant contested the suit by filing written statement in which he admitted that the suit land is owned by plaintiff, but he has taken the plea that over Khasra No. 405/1 measuring 0-0-10 bigha there is a public path and he has easementary right by way of necessity over Khasra No. 405/1. The appellant also filed counter claim. The learned trial Court decreed the Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 suit and dismissed the counter claim vide judgment, decree dated 12.09.2008. In appeal, the learned District Judge on 04.05.2010 has affirmed judgment, decree dated 12.09.2008, hence second appeal. 3. I have heard learned counsel for the parties and I have also gone through the record. Mr. B.S.Chauhan, learned counsel for the appellant has submitted that appellant is using the path over Khasra No. 405/1 for the last 50 years and, therefore, the appellant has right over Khasra No. 405/1. He has submitted that the appellant has proved his easement of necessity over Khasra No. 405/1. In the written statement, the appellant has, no doubt, taken the plea of easement of necessity, but he has not led evidence in terms of Section 13 of Easement Act, 1882, to prove easement of necessity. In absence of such evidence, it cannot be said that the appellant has established easement of necessity over Khasra No. 405/1. 4. The learned counsel for the appellant has submitted that even if the right by way of easement of prescription has not been specifically pleaded in the written statement and there is no issue to this effect, but the parties led the evidence knowingly well that appellant has projected his case of easement of prescription. Therefore, the appellant is entitled to take the plea of easement of prescription in second appeal and the case of the appellant can be considered whether he has made out a case of easement of prescription over Khasra No. 405/1. The learned counsel for the appellant has relied Sree Swayam Prakash Ashramam and another Versus G.Anandavally Amma and others (2010) 2 SCC 689 in support of his contention. 3 5. In Sree Swayam Prakash Ashramam (supra), the trial Court had decreed the suit. The first Appellate Court allowed the appeal partly. It was held that the claim of the plaintiff regarding the right of easement of necessity over the plaint B pathway was not sustainable. On the question of easement of grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. It was held that the trial Court was justified in granting the relief of permanent injunction against the defendant. 6. The High Court dismissed the appeal and affirmed the orders of the trial Court and of the fist Appellate Court. On behalf of the appellant, argument was raised that since no case was made out by the respondent-plaintiffs in their plaint about the easementary right over the B schedule pathway by implied grant, no decree can be passed by the courts below basing their conclusion on implied grant. The Supreme Court has held that finding arrived at by the trial Court, on consideration of pleadings and evidence on record on the right of easement over B schedule pathway by implied grant. The Supreme Court declined to upset the finding of fact arrived at by Courts below in exercise of powers under Article 136 of the Constitution of India. 7. In the present appeal, the learned counsel for the appellant has stressed that in para-32 of the report the Supreme Court has observed that it is true that the appellant/defendant alleged that no implied grant was pleaded in the plaint. The Supreme Court, however, held that the trial Court was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to easement by way of grant. In the 4 present case, there is no finding of the two Courts below that appellant has proved easement by way of prescription over Khasra No. 405/1. 8. It has not been contended that pleadings, legal requirement and evidence for establishing easement of necessity and easement by way of prescription are identical. The appellant projected the case of easement of necessity in the written statement, in second appeal he cannot be permitted to take the plea of easement of prescription without there being any foundation in the written statement of easement of prescription. On facts, the appellant cannot take advantage from Sree Swayam Prakash Ashramam (supra). 9. The two Courts below have rightly appreciated the material on record. It has not been contended that the findings recorded by the two Courts below are not based on evidence or material on record which goes to the root of the case, has been ignored while considering the case of the appellant. There is no substantial question of law involved in the appeal. Hence, appeal is dismissed. July 22, 2011. (Kuldip Singh), ( krt) Judge.