CR No. 2593 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No. 2593 of 2010 Date of Decision : 22.4.2010 M/s. Jublliant Malls Pvt. Ltd. .......... Petitioner Versus Ram Pal Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Amit Jain, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 19.2.2010, whereby the application moved by the plaintiff / respondent under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure stands allowed by the learned Courts below. The plaintiff filed a suit for declaration and permanent injunction restraining the petitioner / defendant from interfering in the passage, being used by the plaintiff / respondent for access to his land. The pleaded case of the plaintiff / respondent was, that he was owner in possession of the land bearing Khasra No. 468/1(2-7), and the other co-sharers of the land entered into an oral settlement, vide which the passage from Khasra No. 468/2 was provided for access to his land. The petitioner purchased the land falling under the passage and CR No. 2593 of 2010 -2- was blocking the passage by raising a Group Housing Society buildings thereon. The plea of the plaintiff /respondent was, that he was entitled to protect his right of passage, on the principle of easement of necessity / oral settlement. The suit was contested by the petitioner / defendant, wherein a stand was taken, that as per the revenue record, no passage was shown in Khasra No. 468/2, therefore, the plaintiff did not have any right to claim injunction against the use of land by true owner. It was also the stand of the petitioner, that the plaintiff / respondent could not claim the easement of necessity, for the reason that as per the proposal, the Govt. was to provide a broad road, which will be available to him to reach his land. The learned Courts below on appreciation of pleadings, and the documents placed on record, formed prima facie opinion, that till the passage is provided by the Govt., as contended, by the learned counsel for the petitioner, the plaintiff / respondent would have no passage to reach to his land, and the injunction, therefore, could not be refused to the plaintiff / respondent. The order was affirmed in appeal. The orders passed by the learned Courts below, are being challenged by the petitioner, by contending, that the impugned orders are perverse, inasmuch as the learned Courts below have failed to notice, that in the revenue record no passage was shown, therefore, oral settlement as pleaded could not be accepted. It is also the contention of the learned counsel for the CR No. 2593 of 2010 -3- petitioner, that the learned Courts below failed to notice that no right of easement was proved, so as to claim right of easement. The passage was not shown to be in use for more than 20 years, thus, the plaintiff failed to prove that he was entitled to use the passage, under the right of easement by prescription. The learned counsel for the petitioner further contends, that the learned Courts below failed to take note of the provisions of Section 47 of the Easement Act, under which the right of prescription or easement would stand extinguished on availability of other passage. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The learned Courts below while deciding application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, is to prima facie see the documents and pleadings on record. Once it was prima facie established, that except the passage claimed by the plaintiff / respondent, there was no passage available, which stood proved from the documents placed on the file by the defendant / petitioner, showing that the plaintiff would have a passage to be provided by the State Government by acquisition of land. The learned Courts below, therefore, rightly came to the conclusion, that the plaintiff / respondent did not have any other passage to reach to his land. The learned Courts below further rightly held that the plaintiff had right of easement of necessity to use the passage. As regards the contention of the learned counsel for the petitioner with regard to Section 47 of the Easement Act is concerned, the learned Courts below rightly held, that it is only after the road is provided, that this plea will be CR No. 2593 of 2010 -4- available to the petitioner, and till this is so done the plaintiff / respondent had a prima facie case to seek injunction . No ground for interference is made out in exercise of revisional jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed. 22.4.2010 ( VINOD K. SHARMA ) 'sp' JUDGE