IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 324/2009 Decided on: 4.12.2009 ________________________________________________ The Kasauli Cantonment Employees Union and others. …Appellants. Versus S.S. Sehgal and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellants : Mr. Inder Sharma, Advocate. For the Respondents : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondent No.1. Mr. K.B. Khajuria, Advocate vice Mr. Baldev Singh, Advocate for respondent No.2. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 28.2.2009 passed by the learned Additional District Judge, Solan in Civil Appeal No. 69-S/13 of 2008. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of 1 Whether reporters of the local papers may be allowed to see the judgment? 2 learned Civil Judge (Junior Division) under section 38 of the Specific Relief Act, 1863 read with section 91 of the Code of Civil Procedure. Primarily, it was contended in the suit by the plaintiffs that they and other persons employed with the Cantonment Board alongwith general public are using path known as “Narinder Khana Path” and they have right to use this path without any obstruction. The suit was contested by the respondent-defendant, Sh. S.S. Sehgal, (hereinafter referred to as ‘the defendant’ for convenience sake). The trial court dismissed the suit on 4.10.2008. Plaintiff preferred an appeal before the learned District Judge, Solan. He dismissed the same on 28.2.2009. This Regular Second Appeal has been directed against the judgment and decree dated 28.2.2009. Mr. Inder Sharma has vehemently argued that the judgments and decrees passed by both the courts below are not sustainable. He then contended that both the courts below have come to a wrong conclusion that the suit was not maintainable in the present form and the Courts have also misread the oral as well as documentary evidence. I have heard Mr. Inder Sharma at length and perused the judgments carefully. Plaintiffs have produced five witnesses in support of their case. PW-1 is Sh. Charan Dass. He has stated that the path is being used by the general public and the members of the Cantonment Board. He could not state whether defendant No.1 is maintaining the path or not. PW-2 is Sh. Satish Chand. He has admitted that disputed path is the only path leading to the property of defendant No.1 and the path 3 leading to their quarters is separate which is shown in red line. PW-3 is Sh. Satish Kumar. He has admitted in his cross-examination that he is employee of the Cantonment Board. He has also admitted that Cantonment Board is not spending any funds for the maintenance of path. PWs-4 and 5 are the elected members of the Cantonment Board. They have supported the version of PWs 1 to 3. Plaintiffs have not placed any record of the General List Board (GLR) register to establish that the path in question known as “Narinder Khana Path” is a public path being maintained from the funds of the Cantonment Board. Defendant No.1 has appeared as DW-1. He has tendered his affidavit in evidence i.e. Ex.DW-1/A. He has deposed that the demarcation was conducted by Defence Estate Officer (D.E.O.) Ambala and it was found that the path is part and parcel of survey No.86. DW-2 is Sh. R.K. Shrivastav. He has produced the summoned record. He has deposed that as per GLR register, no path has been shown in survey No. 86 and also there is no public path in survey No. 85. A perusal of Ex. D-11 discloses that Kucha path leading from lower Mall along with Vale Cottage falling in survey No. 86 to the Cantonment Board is a part of the Vale Cottage. Consequently, the plaintiffs have miserably failed to prove that the path in question is a public path. They have also not led any evidence to substantiate their plea of easementary right on the existing path. The suit in the present form was also not maintainable. The plaintiff No.1 is a registered trade union. The members of the union have not sought the permission of the Court before instituting the suit under order 1 Rule 8 of the Code of Civil Procedure. In view 4 of this, the present suit cannot be treated to be filed in representative capacity. Accordingly, in view of the discussion made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed in limine. There shall, however, be no order as to costs. (Rajiv Sharma), J. 4.12. 2009. *awasthi*