IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 219 of 2001. Judgment reserved on : 28.04.2011. Date of decision: 17.05.2011. Vidya Sagar & Ors. ….. Appellants. Versus Kaushalya Devi & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. B.K.Malhotra, Advocate. For the Respondents : Mr. K.D.Sood, Advocate, with Mr.Balwant Singh, Advocate. Kuldip Singh, Judge . The judgment and decree of affirmation passed by learned District Judge, Mandi, on 11.01.2001 in Civil Appeal No. 61 of 1997 approving judgment, decree dated 03.03.1997 passed by learned Senior Sub Judge, Mandi, in Civil Suit No. 94 of 1990 has been assailed by appellants/plaintiffs in the second appeal. 2. The brief facts of the case are that appellants all sons of Dhan Dev filed a suit for permanent prohibitory and mandatory injunction against Dev their uncle and predecessor-in-interest of respondents. The respondents 3 to 6 were also impleaded as defendants. After the death of Dev, Smt. Jageshwaru his widow and Smt. Kaushalya daughter were also impleaded as parties. Smt. Whether the reporters of the local papers may be allowed to see the Judgment? Yes Jageshwaru has also died. The appellants and surviving respondents are cousins. 3. It has been alleged that land measuring 534.72 square metres bearing Kh. Nos. 719, 720, mauza Tarna was owned by State of Himachal Pradesh vide jamabandi 1984-85. Dhan Dev predecessor-in-interest of appellants was shown as ‘kabiz Nazayaz’. The Settlement Officer, Dharamsala, conferred proprietary rights on Dhan Dev of land comprised in Kh. Nos. 719, 720. Dev predecessor- in-interest of respondents filed an appeal against the order of the Settlement Officer before Divisional Commissioner and then to Financial Commissioner, who granted land comprised in Kh. No. 719 to Dhan Dev and land comprised in Kh. No. 720 to Dhan Dev and Dev in equal shares. 4. It has been alleged that Dev agreed that he would not create hindrance in the peaceful enjoyment of path passing through Kh. No. 720 leading to the house of appellants situate on Kh. No. 702. The Assistant Collector, 2nd Grade, while attestation of mutation in pursuance of the order of the Financial Commissioner ignored the spirit and ratio of the order and conferred proprietary rights qua Kh. No. 720 upon Dev , path in question was also shown towards wrong direction vide order dated 08.04.1988 passed in mutation No. 705 which is also null and void. 5. The further case of the appellants is that Dhan Dev constructed a house in the year 1965 on the land comprised in Kh. No. 702. He was using the path which was being used later on by appellants without any obstruction. They have acquired right of easement by way of prescription on the path through Kh. No. 720. The appellants, however, did not admit Dev to be the owner in possession of the land comprised in Kh. No. 720. 6. It has been alleged that respondents and their predecessor-in-interest on 28.06.1990 started raising construction of wall over the land comprised in Kh. No. 720. The matter was reported to the police, the respondents gave in writing to the police that they would not obstruct the path nor they would raise any wall on any portion of the land comprised in Kh. No. 720. However, the respondents again started raising construction on 08.07.1990 which has been raised up to the height of 4/5 feet and are trying to block the path in question. They have also thrown debris on the land comprised in Kh. No.719/2. In these circumstances, the suit was filed for permanent prohibitory and mandatory injunction. 7. The respondents have contested the suit by filing written statement and took preliminary objections of maintainability, valuation and jurisdiction. It has been alleged that the land comprised in Kh. Nos. 719 and 720 are owned and possessed by respondents and the revenue entries showing contrary are wrong. The existence of any path over the suit land has been denied. The respondents are in possession of the suit land for the last more than 42 years. They have acquired ownership of land comprised in Kh. No. 719 by way of adverse possession. 8. It has been pleaded that Dev predecessor-in-interest of respondents had filed a suit for declaration against appellants which was pending. The suit land was in exclusive possession of respondents, appellants have no easementary right of path over Kh. No. 720. It has been denied that appellants have any right over Kh. No. 720. It has been denied that appellants have constructed house on Kh. No. 702 in the year 1965. The respondents have raised construction on Kh. No. 720 prior to filing of the suit. 9. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 4. Relief. All the issues were decided in negative and the suit was dismissed on 03.03.1997. The appeal was dismissed on 11.01.2001, hence, second appeal which has been admitted on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case the judgment and decree passed by the Ist Appellate Court is vitiated on the ground that unless and until a declaration with regard to the acquisition of easementary right is sought by the parties, suit for injunction preventing the obstruction to such a right was not maintainable? 2. Whether the right of easement under the law is acquired in respect of the land or against the person interested in the land? 3. Whether the Ist appellate Court has grossly erred in ignoring the document produced by the appellants on the ground that the witness who has prepared and proved the said document has not specifically stated about the contents of the document when he was orally examined? 10. I have heard learned counsel for the parties and have also perused the record. It has been submitted on behalf of the appellants that the learned lower Appellate Court has erred in law in returning the findings that unless declaration with regard to acquisition of easementary right is sought, the suit for injunction is not maintainable. The easement is acquired in respect of land and not against the person interested in the land. The learned District Judge has ignored Ex. PW4/A tatima on the ground that the witness, who has proved Ex. PW4/A, has not repeated the contents of the document while proving the document. The learned counsel for the respondents has supported the impugned judgment. 11. The substantial questions of law No. 1 and 2 are inter- connected, therefore, these are taken up for determination collectively. It has been submitted by learned counsel for the appellants that learned lower Appellate Court has erred in returning the findings that suit for mere injunction is not maintainable in absence of declaration that the appellants have acquired right by way of prescription to use the path existing over a portion of land comprised in Kh. No. 720. The observations of the learned District Judge regarding maintainability of suit for mere injunction without declaration is in the context of pleadings of the appellants in the plaint. The appellants have pleaded right of passage by way of easement of prescription through Kh. No. 720. 12. The easement has been defined in Section 4 of the Indian Easements Act, 1882, which provides that an easement is a right which the owner and occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Section-4 further provides dominant and servient heritages and owners. The appellants have confused their right of easement by way of prescription over Kh. No. 720 by pleading inconsistent and self-destructing pleadings. 13. It has been submitted by learned counsel for the appellants that in every suit for injunction on the basis of easement of prescription, declaration is not necessary. In Corporation of the City of Bangalore versus M.Papaiah and another AIR 1989 SC 1809, it has been held that for deciding the nature of a suit, the entire plaint has to be read and not merely the relief portion. The Supreme Court has also held that in that case plaint does not leave any manner of doubt that the suit has been filed for establishing title of the plaintiffs and on that basis getting an injunction against the appellant- Corporation. It has been further held that suit cannot be dismissed on the ground that relief for declaration of title and possession has not been specifically mentioned in the plaint. 14. In ‘Unnikrishanan versus Ponnu Ammal and others AIR 1999 Kerala 405’, it has been held as follows:- “……Therefore, in a case where a plaintiff claims a right by way of prescription and alleges interference with the exercise of that right he seeks the relief of injunction on establishing his right by prescription, as entitling him to the relief of injunction. So viewed, it would be possible to say that a suit for injunction to protect a right by prescription or to prevent interference with a right by prescription, really implies the seeking of a relief of declaration of the right as well. Thus in every adjudication in a suit for injunction based on a claim of right by prescription, what is involved is an adjudication of the right claimed by the plaintiff and on his establishing the right the grant or refusal of injunction on well accepted principles relating to the grant of a decree for injunction.” 15. In so far as the legal proposition is concerned, there is no manner of doubt that suit for permanent prohibitory injunction sometimes implicitly involves declaration also but it depends upon the facts of each case. In the present case, the appellants have confused the matter by pleading contradictory and self-destructive pleas regarding their right of easement by way of prescription over Kh. No. 720. In paragraph 2 of the plaint, the appellants have pleaded that proprietary rights of Kh. No. 720 were conferred in favour of their predecessor-in-interest Dhan Dev and Dev predecessor-in-interest of respondents in equal shares. The appellants have pleaded that they are owners of Kh. No. 720 along with Dev, the easement of prescription can be claimed over the land of other owner or occupier. The dominant heritage and servient heritage cannot be claimed by one person over the same piece of land, which is precisely the case put-forward by appellants in the present case. 16. The appellants have also taken the plea that Dev predecessor-in-interest of respondents was not in possession of Kh. No. 720. Once Dev had nothing to do with Kh. No. 720 as per appellants, then the appellants cannot claim easement of prescription over kh. No. 720 against Dev predecessor-in-interest of respondents. It is different matter they may claim any other legal right over Kh. No. 720 against respondents. The mixing of the case by the appellants on the point of right of easement by way of prescription makes the case of the appellants doubtful regarding their right of easement by way of prescription over the suit land. In this context, if not in the prayer then at least in the body of the plaint it was required to be pleaded that appellants are entitled to declaration of having acquired easement by way of prescription over the suit land, which they have not pleaded. The appellants have failed to establish their right of easement by way of prescription over Kh. No. 720. In these circumstances, no fault can be found with the judgment and decree passed by learned lower Appellate Court in declining the relief of permanent prohibitory and mandatory injunction to the appellants with respect to Kh. No. 720 as claimed by them. The substantial questions of law No. 1 and 2 are decided accordingly against the appellants. 17. It has been submitted that learned District Judge has wrongly discarded Ex. PW4/A. It has been submitted that PW4 Amar Singh has prepared the tatima Ex. PW4/A. The further contention of the learned counsel for the appellants is that learned District Judge has erred in not accepting Ex. PW4/A on the ground that PW4 has not proved tatima Ex. PW4/A by way of his oral statement. 18. The contention raised by learned counsel for the appellants is of no help to the appellants. As per Ex. PB jamabandi 1984-85 area of Kh. No. 720 is 232.92 metres. Ex. PW4/A was prepared on 13.07.1990, the plaint was drafted on 17.07.1990. The case of the appellants is that they have right of passage over Kh. No. 720. It is not believeable that entire Kh. No. 720 measuring 232.92 metres is path for appellants. Ex. PW4/A was available with the appellants at the time of drafting of the plaint, but the appellants have not prayed a decree in terms of Ex. PW4/A. Therefore, no prejudice has been caused to the appellants when tatima Ex. PW4/A has been ignored by the lower Appellate Court. The appellants have independently failed to prove their right of easement by way of prescription over Kh. No. 720. The substantial question of law No.3 is decided accordingly against the appellants. 19. In view of above discussion, there is no merit in the appeal which is accordingly dismissed with no orders as to costs. May 17, 2011. (Kuldip Singh), ( krt) Judge.