IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.224/1997 Reserved on 30th April,2008. Date of Decision :5th May, 2008. Nirmala Devi. …Appellant. Versus: Ramesh Chander and another. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Sanjiv Kuthiala, Advocate. . For Respondents 3 & 4. Mr.N.K.Thakur, Advocate. Sanjay Karol, J. The present appeal arises out of the impugned judgment and decree dated 29th August, 1997 passed by the District Judge, Una, District Una in Civil Appeal No. 104/1994 titled as Milkhi Ram and others Vs. Nirmala Devi, dismissing the plaintiff’s suit, reversing the judgment and decree dated 18th April, 1994 passed by Sub Judge, Ist Class, Amb, District Una titled as Nirmala Devi Vs. Milkhi Ram and others. Smt. Nirmala Devi-appellant herein/plaintiff filed a suit for permanent injunction restraining the defendants from obstructing or blocking the passage of her abadi by raising construction or in any other manner or converting the passage, situated on land measuring 0-04-26 Hects. comprised in Khasra 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 No.899 and 901 in village Bhanjal, tehsil Amb, District Una, (hereinafter referred to as the “suit land”) to their exclusive use. In the plaint it is so pleaded that the plaintiff has been using the said passage since the time of her ancestors as co-sharer and acquired the easementary rights of passage by way of prescription and the defendants were threatening to raise construction near the plaintiff’s abadi and also put up a gate on the edge of the passage adjacent to Gohar in order to convert the same to their exclusive use. In the written statement filed by the defendants, it is so pleaded that the parties have raised their respective abadies since the time of their ancestors. In front of the passage from the Gohar side, the defendants had put up a gate so as to ensure that stray cattle do not enter in their court yard. The defendants denied having raised any construction or any intention of putting a new gate. It is specifically pleaded that the user of the passage for egress and ingress was never refused or obstructed as alleged by the plaintiff and thus in the absence of any cause of action the defendants have been un-necessarily dragged into this futile litigation. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to the relief claimed? .…OPP. 2. Whether there is a gate constructed over the alleged passage by the plaintiff? if so its effect?. …OPD. 3 3. Whether the suit is not maintainable?. ....OPD. 4. Whether the suit is bad for non-joinder and mis- joinder of parties? …OPD. 5. Whether the plaintiff is estopped by her act ad conduct?. ..OPD. 6. Relief. The trial Court appreciated the material on record and decreed the plaintiff’s suit restraining the defendants from obstructing or blocking the passage as depicted in the site plan (Ext.PW-1/A). In an appeal filed by the defendants, the first appellate Court reversed the judgment and decree passed by the trial Court on the ground that there was no breach of an obligation on the part of the defendants and they did not invade or threaten to invade the plaintiff’s right to the enjoyment or user of the disputed passage. I have heard learned counsel for the parties and also perused the record. The appeal was admitted on the following substantial questions of law: 1. Whether on the proper construction of the pleadings of the parties and the evidence on record and provisions of the specific Relief Act, the findings of the court below are vitiated?. 2. Whether the court below has misread and misconstrued the oral and documentary evidence on record especially the statements of PW-2 (Nirmala Devi) PW-3 Kashmir Singh, DW-1 Suresh Chand Ext.PW-1/A site plan? 3. Whether the plaintiff had alleged and proved the invasion on his rights and the jeopardy caused and 4 made out the grounds for grant of permanent injunction? 4. Whether from the pleadings and the evidence on record, the prescriptive rights of easement were made out and the learned courts below have misconstrued the law and facts of the case?. 5. Whether the legal right of easement in plaintiff’s favour is established and apprehension of its disturbance is proved and plaintiff is entitled to injunction?. The plaint is not specific as to in what manner and in which part of the suit land the defendants have threatened to raise construction and/or are constructing the gate. Even as per the sworn testimony of Smt. Nirmala Devi (PW-2), it is not evident in what manner the plaintiff’s rights were being infringed upon. In fact, on the defendants’ plea that there already existed a wooden gate, in her examination-in-chief she admitted the same but, however, disputed the same later. Sh. Suresh Chander (DW-1) has categorically deposed that the passage on the land in question has been used as such from the time of the ancestors and the defendants have never obstructed the user of the passage nor have raised any construction thereupon. He clarified that the existing wooden gate, in front of the passage connecting to the road is required to ensure that stray cattle do not enter the defendants’ court yard through the passage. The right of the plaintiff for using the same has been specifically admitted. Perusal of the material on record would show that no cause of action whatsoever arose in favour of the plaintiff 5 necessitating filing of the suit in question. There is nothing on record to prove that the defendants have been setting up any construction on the suit land and obstructing the user of egress and ingress on the disputed passage. The first appellate Court has correctly appreciated the material on record including the oral and documentary evidence. In view of the specific admission made by the defendants, the right of the plaintiff to use the passage is not infringed and the plaintiff’s apprehension remains un-established and un-founded. The first appellate Court has correctly appreciated the material on record and there is no illegality, perversity or mis- appreciation of facts and documents. The plaintiff has not been able to establish as to in what manner his right is being infringed upon. The questions of law are answered accordingly. It is clarified that the defendants shall not put any lock on the wooden gate so as to cause any inconvenience and obstruction to the parties. However, if the defendants so choose to put up a lock they shall supply one key to the plaintiff to enable her to operate the same as per her convenience With the aforesaid observations, the appeal is accordingly disposed of. (Sanjay Karol), Judge. May , 2008(R) 6