IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.125 of 2009 Date of Decision: 27th April, 2010 Chet Ram and others Appellants Versus Kamlu Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Ms. Ambika Kotwal, Advocate. For the respondent: Mr.G.R.Palsra, Advocate. Sanjay Karol, J. (Oral) 1. The appellants are the defendants. Respondent is the plaintiff. The parties are referred to as such hereinafter. The appellant has filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908, assailing the current finding of fact recorded by the Courts below. 2. The plaintiff filed a suit for permanent prohibitory and mandatory injunction against the defendants. The plaintiff in the suit was claiming right of user of the government path over the suit land. 3. The defendants in the written statement disputed the existence of path on Khasra No.10. In fact they pleaded that the plaintiff had an alternate path over Khasra Nos. 15 and 19, which was not subject matter of the suit land. Whether the reporters of Local Papers are allowed to see the Judgment? 2 4. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether a path from the house of the plaintiff goes on the suit land, as alleged? OPP 2. Whether the defendants are causing unlawful interference over the use of the path, as alleged? OPP. 3. Whether there is any common path over the Khasra No.15 and 19, as alleged? OPD 5. The plaintiff’s suit was decreed in terms of judgment and decree dated 5.3.2002 passed by Sub Judge, Ist Class, Chachiot at Gohar, District Mandi, H.P. in Civil Suit No.28/2001 (1995). The operative portion of the judgment reads as under:- “Cumulative effect of all the discussions made above and conclusion arrived at supra is that plaintiff suit succeeds and it is decreed with costs. The plaintiff is using the path which passes from the house of the plaintiff existing over khasra No.38/1 through khasra No.13,14, 12,11,10 and8 to Bali Dhar and D.P.F. Kassal continuously, without any objection from more than 20 years and its user were as of right. Plaintiff acquired easementary right in way over the path in dispute by prescription. Further the defendants are directed through a mandatory injunction to remove the obstruction created by them by making fields and constructed dangas over the land of the plaintiff comprised under Khasra No.11 as also at A, B and C as shown in the spot map Ex.PW-5/A, and to restore the path into its original vacant position to be open to peacefull use by the plaintiff in exercise. Further defendants are restrained not to cause any sort of interference with the peacefull use of the said path by 3 the plaintiff by way of permanent prohibitory injunction. Decree sheet be prepared.” 6. The defendants’ appeal assailing the same stands rejected in terms of judgment dated 18.10.2008 passed by learned District Judge, Mandi, H.P. in Civil Appeal No.36 of 2002(old)/ 70 of 2008 (new), titled as Chet Ram and others vs. Kamlu. 7. Even though no error of law or perversity could be pointed out, I have, to satisfy my conscious, gone through the record. 8. The Courts below by way of concurrent finding found the existence of path on the suit land. The same was also found to be commonly used by the villagers including the plaintiff. The defendant Chet Ram has admitted that path in question starts from the residential house of the plaintiff and reaches Bali Dhar and D.P.F. Kassal. He, however, admits the existence of path and user thereof by the plaintiff for the last 20-25 years. 9. Simply because the plaintiff has an alternate path, this fact by itself cannot be a reason for dismissing the suit rejecting the plaintiff’s prayer to which otherwise he is entitled to. The parties have been litigating for a considerable period of time and must put an end to the same. 10. No question of law much less any substantial question of law arises for consideration in the present appeal. The present appeal, without any substance, is dismissed. 27th April, 2010 (Sanjay Karol) (C) Judge. 4