IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 423 of 1999. Decided on: May 4, 2010. Satinder Bali ..Defendant-Appellant. Versus Joginder Kaur & others ..Respondents/Plaintiffs. Coram The Hon’ble Mr. Justice Surjit Singh, Judge Whether approved for reporting?1 For the Appellant Mr. Onkar Jairath, Advocate. For respondent No. 1 Mr. Lovnesh Kanwar, Advocate For respondent No. 3 Mr. Sanjeev Sharma, Advocate. Surjit Singh, Judge (oral) This regular second appeal is directed against the judgment and decree dated 17.9.1999 of learned District Judge, whereby affirming the judgment and decree, dated 28.1.1997, of the trial Court, appeal of appellant- defendant Satinder Bali, has been dismissed. 2. Facts, relevant for the disposal of the appeal, may be noticed. Respondent/plaintiff Joginder Kaur is a tenant in a double storeyed building, standing on Khasra No. 760, in Mohal Bhojpur, Tehsil Sundernagar, District Mandi, under appellant-defendant Satinder Bali. It Whether reporters of the local papers may be allowed to see the judgment? - 2 - appears that on the ground floor of the building, there is a shop and the upper floor is used as residence. Joginder Kaur filed a suit for declaration that she had approach to the upper storey of the building through Khasra Nos. 761 and 764, on account of easement of necessity, as there was no alternative passage available. It was stated that Satinder Bali, appellant-defendant had executed an agreement of sale in respect of land bearing Khasra No. 764, through which the plaintiff had a passage, in favour of Rajinder Parshad, respondent, who was impleaded as defendant No. 3, and that the said respondent Rajinder Parshad had stacked stones on the path, as a result of which, it had become impossible for the plaintiff to approach the upper storey of the building. Therefore, in addition to seeking declaration to the aforesaid effect, she sought a decree of permanent prohibitory injunction, restraining the respondents- defendants from causing any interference or obstructing the path, running through Khasra No. 764 and leading to the upper storey of the house, occupied by her as a tenant. She filed a tatima of the path, forming part of Khasra No. 764. The same is Ex.PW-3/A. 3. Appellant- defendant Satinder Bali contested the suit. Other defendants did not file any written - 3 - statement. Satinder Bali denied that the plaintiff- respondent Joginder Kaur had the right to pass through Khasra No. 764, for approaching the first storey of the building. He stated that an alternate passage was available to her. 4. Learned trial Court held that the plaintiff had no other approach for the first floor of the building and consequently, decreed the suit. Appeal filed by the appellant – defendant Satinder Bali in the Court of District Judge, stands dismissed, with a slight modification in the decree of the trial Court that the width of the passage, running through Khasra No. 764, shall not be more one meter. 5. This regular second appeal, filed by the appellant-defendant Satinder Bali, was admitted on the following substantial questions of law: 1. Whether easement of necessity can be claimed without pleading and proof that there is severance of tenement, if so, its effect? 2. Whether the plaintiff, without specifying the exact location, width and length of the path in her pleading, is entitled for relief of path by way of necessity? 3. Whether plaintiff can claim the path from the land of other if he or she is having way out to have access from his ground floor to the first floor? - 4 - 4. Whether the tenant can claim path as an easement of necessity within the purview of definition under Section 4 of the Indian Easement Act, 1982, if so, its effect? 5. Whether the findings of the lower courts below are based on evidence as adduced by the parties in the instant case? 6. I have heard the counsel for the parties and gone through the record. 7. With regard to the first substantial question of law, on which the appeal was admitted, learned counsel for the appellant argued that the plaintiff- respondent Joginder Kaur had not pleaded that Khasra No. 760, on which the building stands and Khasra No. 764 through which passage has been claimed, were severed parts of the same tenement and, therefore, her plea of easement of necessity, could not have been upheld by the two Courts below. It is not only on the plea of easement of necessity that the plaintiff- respondent has claimed the passage, but also it is pleaded that the passage to the upper storey of the house, is only through khasra No. 764. There is absolutely no evidence indicating that any other passage is available to the upper storey of the house in question. 8. Learned counsel for the appellant submitted that there is a stair case, connecting the ground floor of - 5 - the building, with the upper storey. Neither there is any pleading to this effect, nor has any evidence been adduced by the appellant-defendant. 9. It has come in evidence that earlier a suit was filed by one Narain Singh against the appellant- defendant (Satinder Bali), in which he claimed a passage through Khasra No. 764, for his property comprised in Khasra No. 759. It is not in dispute that that suit pertained to the very passage, which has been claimed by the plaintiff, to have access to the upper storey of the building standing on Khasra No. 760. That suit was decreed and it was declared that said Narain Singh had right of passage through Khasra No. 764. Copy of the judgment in the said suit is available on record. The same is Ex.PX. 10. In view of the above said position, it is held that there is a passage running through Khasra No. 764 and the plaintiff has a right to approach the upper storey of the building, standing on Khasra No. 760, through the said passage, even if it be assumed that she had not pleaded the necessary ingredients of easement of necessity in the plaint. Question is answered accordingly. - 6 - 11. So far as substantial question of law No. 2 is concerned, tatima, showing the location of the path through Khasra No. 764, has duly been proved and the same is Ex.PW-3/A. So, this question is answered against the appellant. 12. Coming to substantial question of law No. 3, as already noticed while answering question No. 1, there is no evidence that respondent Joginder Kaur has access to the first floor through the ground floor of the building. So, this question is also answered against the appellant. 13. Question No. 4 becomes irrelevant, in view of answer to question No. 1. 14. As regards question No. 5, the evidence discussed while dealing with the aforesaid questions, sufficiently proves that the plaintiff has the right to approach the first floor of the house through the passage existing in Khasra No. 764 and marked in tatima Ex.PW-3/A. Question is answered accordingly. 15. In view of the above findings and answers to the substantial questions of law, appeal is dismissed. May 4, 2010 (PC) (Surjit Singh), J.