IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.434 of 2000 Judgment reserved on : 31.3.2010 Date of decision : 30.4.2010 ____________________________________________________ Kamla Devi …Appellant. Versus Dhani Ram …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant : Mr. R.S. Jamalta, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Kuldip Singh, Judge This appeal has been directed against judgment, decree dated 15.5.2000 passed by learned District Judge, Shimla in Civil Appeal No.6-S/13 of 1999, affirming judgment, decree dated 26.11.1998 passed by learned Sub Judge Ist Class, Court No.1, Rohru Camp at Jubbal, District Shimla in C. Suit No.17/1 of 1996/93 dismissing the suit of the appellant. 2. The appellant had filed a suit for mandatory injunction against the respondent to remove obstruction caused by him at the two ends of khasra No.404 min over a path. The appellant has claimed herself to be the owner of land comprised in khasra Nos.397 and 419. _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? yes 2 It is her case that for reaching her land, she has to pass through land comprised in khasra No.404 min but respondent has obstructed this path on one end of khasra No.404 min by erecting a wall and putting a pole on the other end and by sowing vegetables in between. The path in dispute is stated to be in use for the last more than 30 years and thus the appellant has a right over the path. In these circumstances, suit was filed for removal of the obstruction. 3. The respondent contested the suit by filing written statement and asserted that there was no path through khasra No.404 min. In these circumstances there is no question of removal of obstruction. The appellant had filed replication and reasserted her case while denying the defence of the defendant. On the pleadings of the parties the following issues were framed and reframed as follows:- 1. Whether the plaintiff has a right of path through khasra number 404 min? If so whether the path has been blocked by the defendant, as alleged? ….OPP 2. Whether there is no enforceable cause of action as alleged? ….OPD 3 Relief. The issue No.1 was decided against the appellant and issue No.2 was decided in favour of the respondent and learned Sub Judge dismissed the suit on 26.11.1998. The decision dated 26.11.1998 was carried in appeal and learned District Judge dismissed the appeal on 26.8.1992. The second appeal has been admitted on following substantial question of law:- 3 “Whether the Tatima Exhibit PW-4/1A can be ignored which clearly indicates the existence of the path over the disputed khasra number as well as other khasra numbers shown in the tatima”? 4. I have heard Mr. R.S. Jamalta, learned counsel for the appellant and Mr. Ajay Kumar, learned counsel for the respondent and have also gone through the record. The learned counsel for the appellant has submitted that the two Courts below have erred in dismissing the suit of the appellant who has proved her right of easement over passage situate on khasra No.404 min. The respondent has no right to obstruct the path situated on khasra No.404 min. It has been submitted that tatima Ex.PW-4/1A clearly indicates the existence of khasra No.404 min. The learned counsel for the respondent has supported the impugned judgment, decree. He has submitted that the two Courts below have recorded findings of facts against the appellant which cannot be interfered in second appeal. 5. DW-1 Dhani Ram respondent has taken the stand that his house is partly situate on khasra No.404 min and partly on khasra No.405 min for the last 32-35 years and is in L-shape. He has denied that there is any thoroughfare through his residence. DW-2 Vijender Singh has stated that he has not seen any thoroughfare through the house of Dhani Ram. The villagers have thoroughfare through the land of kanah Singh. DW-3 Prem Chand has stated that there is no thoroughfare through the house of Dhani Ram. The people are using the passage which is behind the house of Dhani Ram and is situated on the land of Kanah Singh. 4 6. PW-1 Chet Ram husband of the appellant has stated that he had purchased orchard in the year 1982 and since then he is using the passage. He has stated that respondent had closed the passage on 3.5.1993. PW-2 Kali Ram has stated that he does not know after the closing of the passage appellant is carrying apples of her orchard through which passage. He has stated that land of Kanah Singh is behind the house of Dhani Ram and he does not know that there is a passage from the land of kanah Singh. He has stated that there is no passage in front of the verandah of the respondent. PW-3 Lal Singh has stated that apples of the orchards of Kamla Devi are taken to market through two passages, one by Shor and second down below. The passage of Shor crosses through the land of Kanah Singh and respondent. In cross-examination he has stated that it is correct that the passage towards Shor crosses through the land of Kanah Singh behind the house of Dhani Ram at a distance of 20-25 feet. PW-4 Chain Ram Patwari has prepared tatima Ex.PW-4/A. In cross- examination he has stated that when he visited the spot Dhani Ram was not called. The passage which has been shown in the tatima is not recorded in the revenue record. 7. The perusal of tatima Ex.PW-4/A indicates that passage has been shown through khasra Nos. 404, 406 and 370. PW-4 Chain Ram Patwari has stated that in the revenue record passage has not been recorded. The appellant has taken the plea of legal necessity and easement in the plaint. The pleadings of the appellant in the plaint even if construed liberally, still the appellant has failed to make out any case on the basis of easement of necessity or prescription. 5 The appellant has not made out a case that at any point of time her land and land over which the appellant is claiming passage were owned by, common owner and later on it was owned by appellant and respondent. Therefore, no case for easement of necessity is made out by the appellant. 8. The case of easement of prescription has also not been established. PW-1 Chet Ram has stated that he had purchased the orchard in the year 1982 and respondent has closed the passage on 3.5.1993. Therefore, it cannot be said that when the passage was allegedly closed by the respondent at that time the appellant had acquired easement right over the passage by way of prescription. The tatima Ex.PW-4/A itself is of no help to the appellant when it is not proved from other revenue record or reliable evidence that there is a passage over the land as claimed by appellant. The learned counsel for the appellant has not pointed out any other right of the appellant over the passage in question. The two Courts below have rightly appreciated the material on record. There is no perversity in the impugned judgment, decree. The substantial question of law noticed above is decided against the appellant. The impugned judgment, decree requires no interference. 9. No other point was urged. 10. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. April 30, 2010 (Kuldip Singh), (sks) Judge.