IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 438/1998 and COPC No. 3/1999 Reserved on: 21.8.2009 Decided on:17.9. 2009 Malha Singh and others. …Appellants. Versus Udham Singh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no For the Appellants : Mr. Rajinder Sharma, Advocate vice Pt. Om Parkash Sharma, Advocate. For the Respondent : Nemo. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 19.9.1998 passed by the learned District Judge, Kangra at Dharamshala in civil appeal No. 33-J/XIII of 1998. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration that he is entitled to use the path through Khasra No. 368 situated in Muhal and Mauza Dhasoli Uparli, Tehsil Jawali, District Kangra, H.P. by way of easement of prescription and by way of easement of necessity and that the appellants- 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 defendants (hereinafter referred to as ‘the defendants’ for convenience sake) have no right to block the path. The permanent injunction by way of consequential relief was also sought to restrain the defendants from blocking the passage. It is further stated that there is a recorded path through Khasra No. 368 which is the only available path to the plaintiff for going to his house and he is entitled to make use of this path by way of prescription and by way of passage. The defendants have contested the suit by filing written statement. The existence of the path is denied by the defendants. According to the defendants, another path is in existence. The learned Sub Judge decreed the suit on 20.4.1998. The defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala. He dismissed the same on 19.9.1998. This Regular Second Appeal has been directed against the judgment and decree dated 19.9.1998 passed by the learned District Judge, Kangra at Dharamshala. It will be pertinent to mention here that though the Regular Second Appeal was admitted on 5.3.1999, however, the attention of the Court was not drawn at that stage to the substantial questions of law framed by the appellant. In these circumstances, the appeal shall be deemed to have been admitted on the following substantial questions of law framed by the appellant: 1. Whether necessary ingredients of acquiring rights in immovable property by prescription have not been pleaded and proved? 2. Whether there is no evidence adduced on the record to prove prescription? 3. Whether the Courts below have ignored from considering that there is in existence a path which is being used by the plaintiff? 4. Whether the entries have been legally changed in the latest settlement. If not, are such entries binding? 3 Mr. Rajinder Sharma, Advocate appearing vice counsel on behalf of the appellants 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 misread and misconstrued the oral as well as documentary evidence. According to him, the plaintiff has failed to prove the necessary ingredients of acquiring the rights of immovable property by prescription. I have heard Mr. Rajinder Sharma, Advocate and have perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff has produced on record the copy of jambandi for the year 1993-94. The copy of Aksh Sajra for the year 1980-81 was also produced on record. PW-1 Sh. Raghubir Singh has deposed that there is no alternative path for his family members and their cattle. He has categorically denied that Khasra No. 368 was not recorded earlier in the revenue record as path. PW-2 Partap Singh has supported the version of PW-1. He was 95 years of age at the time of recording of his statement. PW-3 Jaishi Ram has also recorded his age 70 years. He has corroborated the plaintiff’s case. DW-1 Malha Singh has stated that there is no path from his land to the house of plaintiff and there are many paths for coming and going to the plaintiff’s house. He has admitted that he has not filed any application for correction of wrong entries before the Settlement Officer. DW-2 Sh. Rasila Ram has supported the version of DW-1. The trial court had appointed Sh. V.K. Kandoria as Local Commissioner. According to the report, except from khasra No. 368 which is on the North side of the house of the plaintiff, there is no other 4 passage. According to the Local Commissioner, the crop of wheat appeared to have been sown just 20-25 days back. He has also mentioned that there is a foot path on the West side, but as per the parties, it is not a recorded path. He has also mentioned that the land on the West side is also owned and possessed by the defendants. The report reveals that except the path existing in Khasra No. 368, there is no regular path to the house of the plaintiff and there is no other recorded path in the revenue record as well. The plaintiff has pleaded and proved that he is using the path in question from the time immemorial. PW-2 and PW-3 are aged 95 and 70 years, respectively. The learned courts below have come to a right conclusion that the plaintiff had been using the path comprised in Khasra No. 368 for his residential house as well as for his cattle for more than 30 years by way of prescription as well as by way of easement of necessity. The defendants have failed to prove that there is another alternative path available to the plaintiff to reach his house. The entries whereby the path has been shown in existence in Khasra No. 368 “Gair Mumkin Rasta” have rightly been declared valid by the courts below. The Courts below have correctly appreciated the documentary as well as oral evidence. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed so also the pending applications. There will, however, be no order as to costs. COPC No. 3 of 1999 The petitioner, Malha Singh, has filed this contempt petition stating therein that the respondents have disobeyed the interim order dated 13.11.1998 passed by this Court. The respondents have filed the detailed reply to the petition. The petitioner has filed rejoinder to the reply filed by the respondents. 5 I have gone through the contents of the pleadings carefully. The petitioner has not placed any tangible evidence on record to prove that the respondents have deliberately disobeyed the order dated 13.11.1998. Moreover, the Regular Second Appeal No. 438/1998 already stands dismissed. Consequently, the petition is dismissed. No costs. 17.9. 2009 (Rajiv Sharma ), J. *awasthi*