IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 108 of 1999. Decided on: 16.3.2009. __________________________________________________ Thailu Ram … Appellant. Versus Ganesh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R.K. Sharma, Advocate. For the Respondent : Mr. Rakesh Jaswal, Advocate. ___________________________________________________________ Rajiv Sharma, Judge (Oral). The plaintiff had filed suit for permanent prohibitory injunction against the defendant. The case set up by the plaintiff was that he had constructed a residential house in village Manikaran. The defendant was also owner in possession of the house in the same village. He was residing in the house for the last more than 30 years and the path which leads to his house passes through Abadi of the village. He was using this path openly, continuously and without any interruption or obstruction. The defendant intended to construct a residential house adjoining to his old house and for this purpose, he had collected construction material and started digging operation. The defendant threatened to obstruct the path of the plaintiff. There was no other path 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 approach to his house except that path. The suit was contested by the defendant. The learned trial Court dismissed the suit on 8.7.1998. The plaintiff preferred an appeal before the learned District Judge, Kullu & Lahaul-Spiti. He dismissed the appeal on 24.11.1998. In order to cut short the litigation, the Court passed the following order on 27.11.2008: The short dispute involved in this appeal is whether the access to the plaintiff’s house is only through one path as denoted in the site plan ‘I, J, K, L’ or there is an alternative path available as per the defendant. The width of the so called path is four feet as per the site plan. Mr. R.K. Sharma submits that defendant has obstructed this path. To ascertain the exact position whether the plaintiff has access/alternative passage/path to the house or not, with the consent of the parties, Mr. Anil Jaswal, learned Deputy Advocate General is appointed as Local Commissioner. He will visit the spot after informing the parties. The Sub Divisional Officer (Civil), Kullu is directed to render all assistance to Mr. Anil Jaswal while carrying out the commission. The fee of the Local Commissioner is assessed at Rs. 10,000/- tentatively. He shall file the report on or before the next date of hearing. The parties shall pay the fee of the Local Commissioner in advance in equal proportion. The Local Commissioner is permitted to go through the record with the assistance of the Court Secretary. Copy of this order be sent to the Sub Divisional Officer (Civil), Kullu. The case be listed on 24.12.2008.” In sequel to order dated 27.11.2008, the Local Commissioner filed the report. The copies of the report were supplied to the learned counsel for the parties. They were permitted to file objections to the report. The learned counsel appearing on behalf of the parties had 3 not chosen to file any objections to the report filed by the Local Commissioner. The operative portion of the report reads thus: “On the spot I observed A to B is the main bazaar of Manikaran. Building C is Patwarkhana and D is the shop and house of one Shri Gian Chand. Seven feet path exists between C & D. F is the lintel of one Shri Dolla Ram and said lintel is on nine pillars having no walls and the distance between pillars G to H is eight feet and length of lintel is 37.5 feet i.e. GXI. Adjoining to Dolla Ram’s lintel there is small house of one Shri Sunil Dutt marked as O. Adjoining to the house of Shri Sunil Dutt, house of Thailu Ram, appellant/plaintiff is shown as mark P. House of Shri Ganesh, respondent-defendant shown marked Q in the site plan. At the point I.L. stones were arranged, collected/stacked in the shape of small wall i.e. 3.5 feet in length and 3.5 feet in height. From point R to S there is a pit measuring 7x11 feet. Width of the path from point T to U is 4 feet and from point M to N is 7 feet. The path IJKL is obstructed at point IL by arranging/collecting/stacking stones in the shape of small wall having 3.5 feet height and 3.5 feet length and point RS by digging a pit measuring 11x7 feet. In the site plan houses of unknown persons marked as X Y & Z. On spot inspection I arrived at the conclusion that except the path IJKL there is no alternative path but the aforesaid path is blocked as mentioned above. The plaintiff has informed that he is using the area covered by lintel G, H, X, I of Shri Dolla Ram and thereafter some part of defendant to approach his house in these days and the said path would not be available after completion of construction of Shri Dolla Ram.” It is evident from the report that path in question has been obstructed by the defendant and no path would be available to the plaintiff after completion of the construction by the defendant. The Court accepts the report filed by the Local Commissioner. Accordingly, the judgments and decrees passed by both the 4 learned Courts below are set aside. The suit of the plaintiff is decreed on the basis of the report furnished by the Local Commissioner along with site plan i.e. Annexure-VII. The operative portion of the report, as reproduced hereinabove, with Annexure-VII shall form integral part of the decree. No costs. (Rajiv Sharma), J. March 16, 2009. (cr)