IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 16 of 1998. Judgement reserved on: 9.7.2008. Date of decision: 11.7.2008 Suresh Kumar & ors. ….. Appellants. Vs. Raj Kumar & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Subhash Sharma, Advocate. For the Respondents : Ms. Ambika Kotwal, Advocate vice Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1 to 3 and 5. Kuldip Singh, Judge. The appellants, who were defendants have filed the present appeal against the judgement, decree dated 3.9.1997 passed by learned District Judge, Una in Civil Appeal No. 88/1993 reversing the judgement and decree dated 25.2.1993 passed by learned Sub Judge Ist Class, Court No. 1, Amb in Civil Suit No. 109 of 1986. 2. The brief facts, as per the case of the respondents- plaintiffs set up in the plaint are that they filed a suit for declaration, prohibitory and mandatory injunctions regarding the land comprised in khasra No. 303 measuring 3 Kanals 19 Marlas and khasra No. 274 Whether the reporters of the local papers may be allowed to see the Judgment? …2… measuring 1 Kanal 13 Marlas, situate in village Kuthera Khairla. Their case is that they are owners in possession of the suit land. The appellants have no right, title and interest in the suit land. The appellants in connivance with revenue field staff got the entry of Gair Mumkin Road incorporated with respect to the suit land to the extent of 16 Marlas from rabi 1984 without the consent of the respondents and other co-sharers. Such entry is wrong, illegal and not binding on the respondents. The appellants on the basis of said entry are threatening to interfere in possession of the respondents on the suit land. 3. The appellants contested the suit and took objections of multifariousness, mis-joinder of causes of action, non-joinder of necessary parties and the suit is barred on account of act and conduct of the respondents. They pleaded that there is a passage over the suit land to the residential houses of the appellants, which is in existence from the inception of the village. In the revenue record, passage was recorded during consolidation operation, and, therefore, civil court is barred from trying the suit. The appellants prayed for dismissal of the suit. 4. The respondents filed replication and reiterated their stand which they had taken in the plaint. The learned Sub Judge dismissed the suit but in appeal the learned District Judge decreed the suit, hence this appeal, which has been admitted on the following substantial questions of law:- 1. Whether the learned lower appellate court has properly appreciated the ingredients of the easementary rights accrued in favour of the …3… defendants- appellants with respect to the passage in question. 2. Whether the learned lower appellate court was correct in appreciating and interpreting the documentary and oral evidence adduced before it, particularly Ext. D-7, D-8, DW-2/A and the admission of the PW-1 and PW-2 admitting that the defendants –appellants do not have any other passage. 5. I have heard Mr. Subhash Sharma, learned counsel for the appellants and Ms. Ambika Kotwal, Advocate appearing vice Mr. Sanjeev Kuthiala, learned counsel for respondents No. 1 to 3 and 5 and gone through the record. At the time of hearing, the learned counsel for the appellants has submitted that the case of the appellants is based upon easement of necessity as they do not have any other passage for their residential houses. He has submitted that not only the appellants have proved their easement of necessity with respect to the path in question but this fact has been admitted by the respondents also. The learned counsel for the appellants has relied on Kusasan Samal and others vs. Chandramani Pradhan (dead) AIR 2003 Orissa 157, in support of his submissions. The learned counsel for the respondents has submitted that appellants neither in their pleadings nor in their evidence have proved easement of necessity regarding the suit land, therefore, the learned District Judge has committed no error in decreeing the suit of the respondents. She has supported the impugned judgement and decree. …4… Substantial questions of law No. 1 & 2. 6. The substantial questions of law No. 1 and 2 are interconnected, and, therefore, both of them are being disposed of collectively. The easement of necessity has been dealt with in Section 13 of the Indian Easement Act, 1882. In order to claim easement of necessity, the two tenements at one point of time must be owned by one person. The easement of necessity can only arise on severance of tenements. The easement of necessity is linked with the ownership of two tenements originally in one and severance of such ownership later on. In the present case, there is no allegation in the plaint that the two tenements at one point of time were owned by one person and for that reason the appellants have easement of necessity over the suit land. There is no foundation of easement of necessity in the pleaded case of the appellants. The appellants have led no evidence that the two tenements in question at one point of time were owned by one person. The appellants have completely misdirected themselves regarding their defence of easement of necessity regarding the suit land. 7. In Budhu vs. Rakha Ram and another SLJ 1971 HP 270, it has been held as follows:- “……… The learned District Judge has come to the conclusion that there is no other passage for the plaintiffs and thereby inferred an easement of necessity in their favour. This finding of the learned District Judge cannot be sustained for the simple reason that the case for easement of necessity is not covered under Sec. 13 of the Indian Easement Act. Unless an easement of necessity is spelt out within the provisions of that section, no easement of necessity can be proved in favour of …5… the plaintiffs. This is obviously not a case of transfer or bequest in favour of the plaintiffs. Similarly, it is not a case of partition of any joint property of several persons…..” In the present case also, the appellants have not pleaded and proved their case within the ambit of Section 13 of the Indian Easement Act, 1882, therefore, there is no question of easement of necessity in favour of appellants regarding the suit land. 8. In Kusasan Samal’s (supra), on the facts of that case it was held that easement of necessity was made out in that case. PW 1 has stated that the defendants have passage through the road which is towards Baba Pindi Dass cave. He has further stated that there is no passage but defendants by breaking fence forcibly used the passage. Ex. D-7 and Ex. D-8 are the khasra girdawaris but not of suit khasra Nos. 303 and 274. These documents do not prove the case of the appellants. Ex. DW 2/A is the plan, which has been prepared by DW 2 Surjit Singh. He has stated that he prepared Ex. DW 2/A on the asking of appellants (defendants), therefore, appellants cannot take any benefit of Ex. DW 2/A. 9. The appellants have relied on the statements of PW 1 and PW 2 in support of their case that these witnesses have admitted easement of necessity of appellants on the suit land. PW 2 Mangat Ram has stated that there is no passage through the land, Suresh etc. are using other passage which is towards Pindi Baba. From the Statements of PW 1 and PW 2, it cannot be said that they have admitted that appellants have easement of necessity over the suit land. The learned District Judge has rightly appreciated the material …6… on record. Both the substantial questions of law No. 1 & 2 are decided against the appellants. 10. No other point was urged. 11. The result of the above discussion the appeal fails and the same is accordingly dismissed. July 11, 2008. ( Kuldip Singh ) (Hem) Judge.