IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.335/1999 Reserved on:24.4.2009 Decided on:4.5.2009 Kuldeep Singh and another. …Appellants. Versus Ram Dayal and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No. For the appellants : Mr. Karan Singh Kanwar, Advocate. For the Respondents : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondent No.1. None for respondents No. 2 and 3. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.6.1999 passed by the learned Additional District Judge, Sirmaur District at Nahan in civil appeal No. 3-N/13 of 1999. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for mandatory injunction to the effect that the plaintiffs alongwith Harkirat Singh and Bhajan Singh are co- 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 owners in possession of land comprised in Khata No. 294/114, measuring 11-14 bighas, Khasra No. 298/115 measuring 9-1 bighas and Khasra No.297/115 measuring 2-19 bighas situated at Mauza Bhatawanli, Tehsil Paonta Sahib, District Sirmaur. The respondents-defendants (hereinafter referred to as ‘defendants No.2 and 3’ for convenience sake) are co- owners in possession of the land comprised in Khasra No. 664/596/121 measuring 0-5 bighas. In this land there is a path which leads to the house and other landed property of the plaintiffs. There is no alternative path available to the plaintiffs and others and they are using the said path for more than 25 years continuously without any hindrance. According to them they have acquired easementary rights over this path. The path in question is existing in between the house of defendant No.1 and one Sh. Prem Singh. They have no right, title or interest to block the said path. However, on 14.1.1996 they have blocked the path by fixing the wooden poles forcibly. The suit was contested by the defendants. They have pleaded that they are owners of Khasra No. 664/596/121 which has been purchased by defendants No.2 and 3 through their father in the year 1988. They have denied the existence of any path. According to them the land is agriculture land which is being used by the defendants for the personal use. In the year 1988, they have raised the boundary and thereafter erected a gate to stop the interference of others. They have further stated that the plaintiffs have alternative path through the bank of ‘Bata’ river, which touches the land of the plaintiffs. The learned trial court dismissed the suit on 26.11.1998. The plaintiffs preferred an appeal before the learned Additional District Judge, Sirmaur. The learned Additional District Judge, Sirmaur dismissed the appeal on 1.6.1999. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether learned 1st appellate court has mis-construed, misinterpreted the statements of PW-1 Kuldeep Singh 3 and PW-2 Prem Nath and did not consider the pleaded case of plaintiffs in holding that the plaintiffs do not acknowledge the ownership of defendants on the suit land and, therefore, thee is no question of right of easement by way of prescription of plaintiffs on the disputed path? 2. Whether learned 1st appellate court has misconstrued the case of plaintiffs by misinterpreting that the plaintiffs are trying to establish community right or customary right on the disputed path instead of their own easementary right on the said path? 3. Whether learned 1st appellate court is not right in holding that disputed path has not been identified, more particularly, when site plan Ex.PW-4/A of the disputed path, tatima with the sale deed Ex.D-1 showing the path, photographs and spot inspection of learned trial court are already on record and at the time of spot inspection by the learned trial court, the parties did not dispute the identity of the disputed path? 4. Whether learned 1st appellate court has erred in not considering the spot inspection dated 6.1.97 of the learned trial court in right perspective wherein learned trial court has specifically observed that the path appears to be old one and there appears to be no alternative passage to the plaintiffs?” Mr. Karan Singh Kanwar, Advocate has strenuously argued that the learned courts below have failed to appreciate the ocular as well as documentary evidence produced by the parties. He then contended that the plaintiffs have right to use the path existing in Khasra No. 664/596/121. He further contended that there was no alternative path available to the plaintiffs to reach their land comprised in khasra No. 294/114 and 298/115. He also contended that the learned courts below have failed to take into consideration the inspection which was carried out by the trial court on 6.1.1997. He lastly contended that the courts below 4 have not properly construed the statement of PW-1 and PW-2 and the plaintiffs have led tangible evidence to identify the path in question. Mr. Rajnish K. Lal, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and 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. One of the plaintiffs Kuldeep Singh has appeared as PW-1. He has shown his inability to say as to whether the disputed path forms part of the land bearing Khasra No. 596/121. He has denied whether defendant No.1 purchased the land in the year 1988 through a registered deed for construction of a house and for agriculture land. He has denied the ownership of the defendants over the land disputed path passes. A bare perusal of Ex.D-1 shows that the land comprised in Khasra No. 596/121/1 measuring 5 biswas was purchased by defendants No.2 and 3 from its previous owners Raju, Chuhi and Lachhmi in the year 1988. The plea of easement could only be set up against the owner. There has to be necessary servient only. PW-1 has also tried to establish that the public at large uses disputed path. The evidence led by the plaintiffs does not justify that they have acquired any right by way of prescription over the disputed path under section 15 of the Easement Act. PW-2 has admitted that earlier disputed path used to be there which was damaged due to rain. The plaintiffs have not filed the copy of jamabandi of Khasra No. 664/596/121. The plaintiffs have not led any evidence to prove that the houses of the plaintiffs are also situated at the spot. PW-2 Prem Nath has admitted that when he sold land to the plaintiffs all the other plots at the 5 spot were lying vacant and the people used to pass from anywhere they wanted and no one objected to passing from their land. According to them difficulty arise only when the plot of Malwa Cotton Mills was covered by raising boundary wall. The learned courts below have correctly construed the statement of PW-2 Prem Nath. There is alternative path leading to the lands of the plaintiffs through ‘Bata’ river bridge. The path in question has not been recorded as a common path. The courts below have correctly interpreted Ex.PW-4/A. It does not say about the length and width of the disputed path nor it shows as to through which khasra number the disputed path passes. PW-4 Vijay Kumar has admitted that he has prepared the map on the asking of the plaintiffs. He has further admitted that he has not shown as to over whose land the disputed path passes nor he gave in the site plan any length and width of the same. Consequently, in view of the aforesaid reasoning, the spot inspection dated 6.1.1997 carried out by the trial court will not advance the case of the plaintiffs. Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 4.5. 2009 (Rajiv Sharma ), J. *awasthi*