IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 423 of 2005 Decided on: 24.10.2011 Rajesh Kumar …Appellant. Versus Asha Devi & others …Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1 For the appellant: Mr. G.R. Palsra, Advocate. For the respondents: Mr. Jai Dev, Advocate, vice Mr. Ajay Chandel, Advocate, for respondents No. 1 to 4. None for respondent No. 5. Surinder Singh, J. (Oral) The present Regular Second Appeal was filed in the year 2004, but it was not admitted for hearing. The learned counsel for the appellant submitted that it can be finally disposed of at this stage. 2. Heard and gone through the record. 3. The appellant was plaintiff before the learned trial Court. He had filed a suit against Prem Lal, predecessor in interest of respondents No.1 to 4 and respondent - Sant Ram seeking injunction restraining them permanently from raising any 1 Whether the reporters of local papers may be allowed to see the Judgment? -: 2 :- construction over the suit path adjoining to the suit khasra and the land owned by the respondents. The respondents denied the existence of the said path as alleged. It was their case that the plaintiff has got another path leading to his house and denied that they raised the construction over the path blocking area ingress and egress of the plaintiff. 4. The learned trial Court framed the following issues on the pleadings of the parties: “1. Whether the path leads to the house of the plaintiff through boundary of Khasra Nos. 271 and 310 as alleged? ...OPP 2. Whether the defendants are interfering in the user of the path by the plaintiff? ...OPP 3. Whether the plaintiff in the alternative is entitled to decree for mandatory injunction by restoration of path? ...OPP 4. Relief.” 5. The learned trial Court, after complete trial, answered all the above issues against the plaintiff, thus, dismissed the suit. In appeal, findings of the learned trial Court were endorsed by the learned District Judge and the appeal was also dismissed. Hence, the present Second Appeal. 6. The plaintiff has come in regular second appeal against the concurrent findings of facts arrived at by the learned Courts below. 7. On perusing the record, I find that the plaintiff failed to prove the existence of the path on the spot. No dimension and tatima of the disputed path was proved and placed on record. Until and unless this fact is proved besides interference or blocking the -: 3 :- path, no relief, as sought by the plaintiff, could be granted to him. The plaintiff also could not prove that his house is surrounded by the land of the defendants and that he cannot approach his house except through the alleged path, so as to establish the easement of necessity. In absence of material evidence on record, the relief sought was rightly declined. 8. Thus, I do not find that the learned Courts below have misinterpreted the evidence on record. In the circumstances aforesaid, the non-examination of the defendant is not fatal to the case of the defendants, more specifically when the plaintiff could not prove his case. 9. In view of the aforestated position, no question of law much less the substantial question of law arises in the present appeal, hence dismissed in limine. (Surinder Singh) Judge October 24, 2011 (rajni)