2025:HHC:19614 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.208/2021 Date of Decision: 24th June, 2025. Sandeep Kumar (deceased) through LRs .....Appellants Versus Satinder Kumar …..Respondent. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms. Rinki Kashmiri, Advocate. For the Respondent: Mr. N.K. Sood, Sr. Advocate with Mr. Aman Sood, Advocate, for the respondent. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 22.10.2021, passed by the Learned Additional District Judge Sunder Nagar, District Mandi, H.P., in Civil Appeal (Registration No.) No.60/2020, affirming the judgment and decree dated 30.10.2020, passed by the Learned Senior Civil Judge, Court No.1, Sunder Nagar, District Mandi, HP, in Civil Suit No.30-1/2018. 2. For the sake of brevity, the parties in this appeal shall be referred to in the same manner, as they were before the learned trial court. 3. The facts leading up to the present second Appeal are that the plaintiff and defendant are real brothers and sons of Sh. Chaman Lal. The land in question originally belonged to their father, Sh. Chaman Lal, to the extent of 216/720 shares. 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2025:HHC:19614 The plaintiff pleaded that their father had constructed a house and a shop consisting of ground and first floors on this land. The house was situated on the right side of the Sundernagar-Mandi road, and on its left side, there was another shop and two rooms behind it, which belonged to the plaintiff. The defendant was in possession of two rooms and a hall. The plaintiff further claimed that another parcel of land, comprised in Khewat No. 420, Khatauni No. 669, Khasra No. 3067/549, measuring 81-91 sq. meters, also contained his house, adjacent to which the defendant had constructed his own house. There existed a gallery/passage, 1.20 meters in width and 8.80 meters in length, running between the hall of the defendant and the rooms of both parties, as depicted in the site plan (Mark-X). The plaintiff asserted that during his lifetime, their father had granted an absolute right of passage through this gallery to the plaintiff and his family to avoid future disputes between the brothers. 4. After the death of Sh. Chaman Lal, the land was mutated in the name of his wife, Smt. Indiravati, who executed a settlement deed dated 14-03-2017, settling 45.48 sq. meters in favour of the plaintiff and 136.46 sq. meters in favour of the defendant. On 12-03-2018, the defendant and his family members allegedly closed the gallery by installing gates on both sides, obstructing the plaintiff’s access. The plaintiff contended that an easement by grant had been created by their father, 3 2025:HHC:19614 which had been used as a passage for over 50 years. Aggrieved by the defendant’s actions, the plaintiff filed a suit seeking a declaration of his right to use the gallery as an easement by grant, a mandatory injunction directing the defendant to remove the gates and platform obstructing the passage, and a permanent prohibitory injunction restraining the defendant from interfering with his use of the passage. 5. The defendant contested the suit, raising objections regarding maintainability, cause of action, estoppel, non-joinder of necessary parties, valuation, limitation, and suppression of material facts. On merits, the defendant admitted the existence of the construction and the gallery but claimed that the plaintiff had encroached upon more land than his share while constructing. He admitted installing gates in the gallery but asserted that the plaintiff had an alternative passage through another gallery and had fixed steel stairs in front of his shop, which were later removed by the Municipal Council for being on encroached land. The defendant denied that their father had ever conferred any such right upon the plaintiff and argued that the suit was without merit. 6. The plaintiff filed a replication, reiterating the plaint’s averments and denying the defendant’s claims. The learned trial court framed the following issues on 18-07-2018: 1. Whether the plaintiff has got the right of easement to pass through the passage, as shown in Mark-X, as prayed? OPP 2. Whether the plaintiff is entitled to a decree for mandatory injunction, as prayed for? OPP 4 2025:HHC:19614 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 4. Whether the suit is not maintainable, as alleged? OPD 5. Whether the plaintiff has no cause of action, as alleged? OPD 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 7. Whether the plaintiff has suppressed material facts from the court, as alleged? OPD 8. Whether the suit is bad for non-joinder of necessary parties? OPD 9. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 10. Whether the suit is barred by limitation, as alleged? OPD 11. Relief? 7. The parties led their respective evidence. The plaintiff examined several witnesses, including PW-1 Shiv Kumar Gupta and PW-2 Onkar Raghav to prove the agreement (Ext. PW-1/B) executed by Sh. Chaman Lal, PW-3 Ashok Kumar to testify on the factual position of the spot, PW-3A Mahender Singh (Registration Clerk) to prove the settlement deed, PW-4 Pawan Kumar (Architect) to establish the existence of the passage, PW-5 Devender Kumar and PW-6 Hoshiyar Singh to prove documents related to an inquiry conducted by the SDM, and PW-7 Hukam Chand (Document Writer) to authenticate the settlement deed. The plaintiff himself appeared as PW-8. The defendant, in rebuttal, examined DW-1 Gopal (Photographer), DW-2 (himself), and DW-3 Pushap Raj. 8. The learned trial court, after evaluating the oral and documentary evidence, held that the plaintiff’s father had indeed executed a document creating an easement by grant in favour of the plaintiff, permitting him to use the gallery as a 5 2025:HHC:19614 passage. The court relied upon the settlement deed and spot map, particularly emphasizing the importance of Ext. PW-1/B in proving the plaintiff’s right. It further held that the existence of an alternative path did not extinguish the plaintiff’s easement rights and that the defendant had unlawfully obstructed the passage by installing gates. Accordingly, issues No. 1 to 3 were decided in favour of the plaintiff, while issues No. 4 to 10 were decided against the defendant, resulting in a decree in favour of the plaintiff. 9. The defendant, being aggrieved by this judgment and decree, filed the first appeal, contending that the impugned trial court judgment was based on conjectures and was against the principles of natural justice. He argued that the plaintiff failed to establish the right of easement and that the trial court erred in decreeing the suit. It was further contended that the court ignored the existence of a separate path available to the plaintiff, negating the necessity of an easement. The appellant sought a re-evaluation of the evidence and a reversal of the findings of the court below. The first Appeal was dismissed leading to the present Second Appeal. 10. Heard counsel for the appellants and perused the impugned judgments. 11. In the present case, it is evident that the dispute revolves around two parcels of land—one originally owned by the parties’ father, Sh. Chaman Lal, adjoining the National 6 2025:HHC:19614 Highway, and the second, situated behind it, jointly owned by the plaintiff and defendant. The father had constructed a house and shop on the first parcel, with a gallery/passage (1.20x8.80 meters) separating the two portions. This passage, as depicted in the site plans (Ext. PW-4/A and Ext. PW-4/C), is an admitted fact, though the defendant claims exclusive ownership. 12. The plaintiff’s case hinges on Ext. PW-1/B, a document executed by Sh. Chaman Lal in 1994, granting the plaintiff an easementary right to use the gallery as a passage. The defendant’s evasive denial in the written statement and his subsequent admission during cross-examination (that his father executed the document and his mother signed it) corroborate its authenticity. The plaintiff’s evidence, including testimonies of PW-1 (Sh. Shiv Ram Gupta) and PW-8 (plaintiff himself), remained unchallenged in cross-examination regarding this document. The defendant’s vague assertion in Ext. DW-2/A that no such right was granted lacks substantiation. 13. Critically, Sh. Chaman Lal’s Will bequeathed the property to his wife, Smt. Indiravati, who later executed a settlement deed (Ext. PW-3/A) dividing the construction between the plaintiff (45.48 sq. meters) and defendant (136.46 sq. meters). The settlement deed did not revoke the easement granted under Ext. PW-1/B, nor did Smt. Indiravati—having inherited the property subject to existing rights—have the authority to nullify it. 7 2025:HHC:19614 14. The defendant’s contention that the plaintiff had an alternative passage is irrelevant, as Hero Vinoth (Minor) v. Seshammal (AIR 2006 SC 2234) clarifies that an easement by grant (unlike easement of necessity) is absolute and unaffected by alternative access. The trial court rightly relied on Mst. Nafisun Nisa v. Mohammad Ishaque (AIR 1975 All. 431), upholding the validity of unilateral grants. 15. The defendant’s act of installing gates to block the passage (admitted in his evidence) constituted actionable obstruction, triggering the plaintiff’s cause of action. The suit was filed within limitation, as the right to seek injunction arises upon obstruction. No evidence was adduced to prove improper valuation, non-joinder, or concealment of facts by the plaintiff. 16. Therefore, the concurrent findings of both the courts below that the plaintiff acquired an easement by grant under Ext. PW-1/B, the defendant unlawfully obstructed the passage, and the suit was maintainable—are based on a correct appreciation of facts and law. 17. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the present appeal is dismissed being devoid of merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 24th June, 2025 (T.B/Gaurav Rawat)