Whether reporters of the Local Papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 44 of 2010. Decided on: July 1, 2010. Rulia Ram and others. …… Appellants. Versus Giano Devi and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellants : Mr. Ramakant Sharma, Advocate. For the respondents : Mr. Himat Negi, Advocate, vice Mr. Ajay Sharma, Advocate, for respondent No.1. Other respondents ex parte. Surinder Singh, J (oral). Respondent Giano Devi is recorded as owner in possession of the land comprised in Khasra No.696, measuring 325.50 square meters, situated in Tikka Up Mahal Anu, Tappa Matti-Tihra, Tehsil and District Hamirpur, H.P. as per jamabandi for the years 1991-92. She alleged interference qua the aforesaid land by the appellants and the proforma respondents herein, who were claiming passage as easement of necessity and also by prescription through her land. The learned trial Court - 2 - dismissed their claim, but however, decreed the suit of Giano Devi for permanent prohibitory injunction restraining them from causing an interference in the suit land in any manner whatsoever. 2. Feeling aggrieved and dissatisfied, the appellants filed an appeal before the learned District Judge, which did not find any favour with him, as such the appeal alongwith application under Order 41 Rule 27 of the Code of Civil Procedure for appointing Local Commissioner for ascertaining the existence of passage through the suit land was also dismissed, hence this regular second appeal. 3. Records of the Courts below were requisitioned and parties have been heard. 4. The appellants and proforma respondents are neither the owner of the suit land nor in possession on any part thereof. Broadly, they have claimed the passage on the basis of easement of necessity and also by prescription. Defendant Subhash Chand and his witness Duni Chand both have testified that outside the gate, which was raised by the plaintiff-respondent Giano Devi, there has been an alternative passage, but claimed that the passage in question was a shorter one. In my opinion - 3 - on this plea, the alternative root available to the appellants and the proforma respondents will not create easement of necessity in their favour. Although there existed a passage through the land of the Giano Devi, as is evident from her statement Ex.DW2/A, recorded on 11.7.1995 by the Assistant Collector Ist Grade, much before filing of the present suit, but she stated in her above statement that this passage leads to her house and no other person has a right to use, go through and infringe her privacy and cause annoyance to her ailing husband. The appellants had also miserably failed to prove easement by prescription or customary easement. The appellants are a fluctuating body of persons, which otherwise cannot claim easement. 5. Further the purpose of moving the application under Order 41 Rule 27 of the Code of Civil Procedure is not understood. Although respondent Giano Devi admitted a passage on the spot, but denied the right of the appellants to use it. Even if the relief sought is allowed, it is not enough to prove the case of the appellant as put- forth as they are supposed to prove the right of easement, in which attempt they failed. - 4 - 6. It is also evident from the statement of the witnesses led by the appellants before the learned trial Court that the plaintiff Giano Devi had purchased this land about 20 years back from the filing of the suit. There was a common passage, but after the construction of the house, respondent Giano Devi stopped it by raising a gate. The learned trial Court rightly observed that if there was no construction at the site, the people could have passed through the vacant land if not objected to by its owners and the first appellate Court had rightly concluded that it would merely be a licence, but it does not give or create any right in favour of its users. The licence can be revoked at any time which was so done by respondent Giano Devi. 7. The entries in the revenue record are only pursuant to the orders of the Assistant Collector Ist Grade, who had no jurisdiction to enter into that controversy on the above facts. As such, I do not find that any substantial question of law is involved in this appeal. There are concurrent findings of facts, based upon proper appreciation of evidence. Therefore, the appeal is dismissed in liminie. - 5 - C.M.P. No.68 of 2010. In view of the dismissal of the main appeal, this application has become infructuous. (Surinder Singh ) Judge July 1, 2010. (Pds)