Himachal Pradesh High Court
Reserved On : 26.05.2025 vs Hoshiar Singh on 30 May, 2025
2025:HHC:16782 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 208 of 2024 Reserved on : 26.05.2025.
Date of decision : 30.05.2025.
Kuldeep Singh ...Petitioner.
Versus
Hoshiar Singh ....Respondent.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No For the petitioner : Mr. Ramakant Sharma, Advocate. For the respondents : Mr. Amar Deep Singh, Advocate. Satyen Vaidya, Judge Aggrieved against order dated 06.01.2024 passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. in Civil Miscellaneous Appeal No.77-14 of 2023, the instant petition has been filed by the petitioner.
2. The petitioner is plaintiff in Civil Suit No.17/01 of 2023 pending on the files of learned Senior Civil Judge, Ghumarwin, District Bilaspur, H.P. The respondent is the defendant in the said suit. The parties hereinafter shall be referred to by the same status as they hold before learned Trial Court.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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3. The plaintiff has prayed for a decree of declaration to the effect that he has a right of path by way of easement of necessity through the land comprised in Khata/Khatauni No.75/84, Khasra No.445 measuring 16-2 bighas situated in Village Ghandalwin Pargana, Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. (for short the suit land). A decree for permanent prohibitory injunction has also been sought to restraint the defendant from causing any interference in the suit land by digging, raising construction, changing the nature and by blocking the existing path. In alternative, a prayer has also been made for restoration of the existing path in the suit land, in case the same was disturbed during the pendency of the suit.
4. Plaintiff is owner of land comprising in Khata/Khatauni No.147 Min, 163 Min, Khasra No.441 measuring 4-12 bighas situated in Village Ghandalwin Pargana, Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. Defendant is one of the co-owners of the suit land. Plaintiff claims that there is an old path in the suit land which is being used by plaintiff and other inhabitants since the time of their ancestors and for more than hundred years. The path is alleged to be starting from Dadhol to Ladraur road up to the land comprised in Khasra No.441. According to plaintiff, the alleged path through the suit land is used by him and others for day-to-day work. It is also the case of plaintiff that the alleged path in the suit land is the only available path to the plaintiff and there is no alternative for ploughing the fields by the
-3- 2025:HHC:16782 plaintiff. According to plaintiff, he is using the said path for egress and ingress and the defendant has got no right to obstruct the same in any manner. Plaintiff has also claimed that earlier the path was used for the passage of cattle and now for use of tractor since about last 25 years. Plaintiff has alleged that on 27.01.2023, the defendant started blocking the path through suit land, which forced the plaintiff to file the suit.
5. The defendant has filed the written statement and has raised various legal objections. It has been submitted that prior to filing of the suit against defendant, the plaintiff had filed a suit against the State of Himachal Pradesh & Ors. In the said suit, plaintiff had claimed that the defendants in that suit were upgrading the road and blocking the existing road used for plying the tractor. In that suit, the plaintiff had got the spot inspected from a Local Commissioner. The claim of the plaintiff that a passage was being used through suit land either by him or his predecessors has been denied in totality.
6. Alongwith the suit, plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for interim injunction. Learned Trial Court dismissed the application vide order dated 24.07.2023. Plaintiff filed an appeal under Order 43 Rule 1(r) of the Code and again remained unsuccessful. Learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. has dismissed the appeal of the plaintiff vide impugned order, hence this petition.
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7. I have heard the learned counsel for the parties and have also gone through the record carefully.
8. The contents of plaint reveal that plaintiff is claiming right of passage through suit land as an easement of necessity. However, the fundamental and necessary ingredients for claiming easement of necessity are missing. Sine qua non for claiming easement of necessity is a transfer by one person of immovable property to another or a partition of joint property between several persons. There is no averment in the plaint, as to the transfer of the servient heritage i.e. the suit land by the plaintiff to the defendant or the suit land having been created after partition of joint property between plaintiff and defendant.
9. Though the plaintiff has not explicitly claimed the easement by prescription, yet he has made averments that the passage through suit land has been used by the plaintiff and his predecessors for more than hundred years. However, plaintiff has not been able to produce any tangible material to prima facie establish his contention. Rather, the record prima facie reveals otherwise.
10. In the suit filed by plaintiff against State of H.P. and Puran Chand, a Local Commissioner was appointed. Plaintiff has filed a copy of report of the Local Commissioner on this file as Annexure P-6. It becomes evident from the contents of said report that the Public Works Department (PWD) has excavated the land in Khasra No.495
-5- 2025:HHC:16782 for the purpose of raising retaining wall. It has specifically been noted in the report that prior to widening work of the road, the land adjoining to the PWD road was in a slanting position and could have been used as an approach for tractor, as some evidence to that effect was available on spot. Since, however, retaining wall had been raised by PWD, the path for crossing the tractor had been obstructed. The Local Commissioner has clearly mentioned that the PWD had carried the work negligently and the existing approach for tractor to the land of plaintiff had been blocked from one side by construction of retaining wall and from other side by piling earth and boulders. He has further opined that parts of Khasra No.495 and suit land can be used for the approach to cultivate the land of plaintiff by plying the tractor. Except as above, the Local Commissioner has not found any other possibility to take tractor to the land of plaintiff. The Local Commissioner has also drawn a sketch showing spot position, a copy of which has also been placed on record.
11. The aforesaid report does not help the plaintiff. Rather, it appears prime-facie that the plaintiff had been plying the tractor through the land of the Government abetting PWD road for reaching his land in Khasra No.441. The said possibility has been obstructed, now by construction of retaining wall by PWD. Evidently, the area of Khasra No.445 is 16-2 bighas. Plaintiff has not identified that portion of Khasra No.445 through which the alleged passage exists.
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12. Admittedly, there are other co-owners of the suit land, who have not been impleaded as parties.
13. Learned Trial Court has dismissed the application of the plaintiff by taking into consideration, the contents of the report of Local Commissioner filed in the suit title "Kuldeep Singh Vs. Hosihar Singh". On the basis of the contents of the report of the Local Commissioner, learned Trial Court has found that by the widening of road and raising of retaining wall by PWD, the passage to the land of plaintiff was obstructed.
14. Learned Appellate Court affirmed the order passed by learned Trial Court. He also placed reliance on the contents of the report of Local Commissioner. It has been held that the plaintiff had failed to prima facie establish the existence of any passage through the suit land. The lack of pleadings with respect to easement of necessity also weighed with learned Appellate Court.
15. In view of observations made hereinabove, no fault can be found with the impugned orders passed by learned Appellate Court as also learned Trial Court, as the findings recorded therein are borne by the material on record. The mere bald assertion as to existence of passage that too for plying of tractor, cannot be taken to be sufficient to construe prima facie case.
16. In result, I find no merit in the petition and the same is dismissed. However, it is made clear that observations made
-7- 2025:HHC:16782 hereinabove are only for disposal of this petition and will have no effect on the merits of the case.
(Satyen Vaidya) Judge 30th May, 2025.
(Rupsi/GR)