IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.45/2025 Date of Decision: 11th November, 2025. Vijaya Gupta and Ors. .....Appellants Versus Kamal Kumar Gupta and Ors. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants: Mr. Surya Chauhan, Advocate. For the Respondents: Nemo. Bipin Chander Negi, Judge (oral). The appellants, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 03.01.2025, passed by the learned District Judge, Mandi, District Mandi, HP in Civil Appeal No.33 of 2024, affirming the judgment and decree dated 16.12.2019, passed by the learned Civil Judge Court No.II, Mandi, District Mandi, HP, in Civil Suit No.30 of 2018. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned trial Court. The material facts necessary for the disposal of the case are that the land comprised in Khata Khatauni no. 162/255, Khasra Nos. 1124, 1125 Kita 2 measuring 33.05 Sq.mtrs is recorded in the ownership and possession of plaintiffs no. 1 & 2, and the land comprised in Khata Khatauni No. 161/251, Khasra No. 1112 measuring 12.26 Sq.mtrs is recorded in the ownership and 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 possession of plaintiff no. 3. There exist residential houses-cum- shops and a store belonging to the plaintiffs, and adjoining these shops is a house of the defendant No.3 on Khasra No. 1111 measuring 27.50 Sq.mtrs. An approach from the road to the aforesaid shops and houses of the plaintiffs as well as the defendants exists from the suit land, which has been used as a common path since time immemorial. The plaintiffs claimed to have acquired an easementary right by way of prescription and alleged that the defendants threatened to block this path by raising construction and had stacked construction material on it, thus accruing the cause of action. On these averments, the plaintiffs filed the suit seeking a decree for declaration of their easementary rights over the common path passing through Khasra no. 1126, a permanent prohibitory injunction restraining the defendants from interfering with or blocking the path, and a mandatory injunction for demolition of any structure raised by the defendants during the pendency of the suit. 3. The defendants resisted the suit by filing a written statement raising preliminary objections regarding maintainability, non-joinder of necessary parties, cause of action, and improper valuation for court fees and jurisdiction. On merits, they contended that the plaintiffs had recently acquired their property and had their own access, and that the predecessor-in-interest of the defendants had been declared the owner in possession upon payment of ₹1,000/- via a pre- 3 emption judgment and decree dated 22.11.1954 passed by the Senior Sub Judge Mandi, which was affirmed by the District Judge Mandi. They denied that the plaintiffs had been misusing the passage as an easementry right since time immemorial and prayed for the suit's dismissal. A replication was filed by the plaintiffs reaffirming the plaint's averments and denying those in the written statement. 4. The following issues were framed by learned trial Court on 07.09.1994, which reads as under: - 1. Whether there exists a common path through Khasra No. 1126 measuring 15.25 Sq.mtrs from time immemorial and the plaintiffs have acquired easementary right by prescription towards the above path? OPP 2. Whether the plaintiffs are entitled for relief of injunction, as prayed? OPP 3. Whether the suit is bad for multifuriousness and joinder of causes of action? OPD 4. Whether the suit has been properly valued for the purpose of Court fee and jurisdiction? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Relief. 5. The plaintiffs examined several witnesses, including Bhal Chand (PW-1), Murari Lal (PW-2), Hukkam Chand (PW-3), Achhar Singh (PW-4), Kamalpati (PW-5), Kushal Singh (PW-6), Nand Lal (PW-7), Kamalpati (PW-8), Muari Lal (AW-1), and Smt. Vimla Devi (AW-2), before closing their evidence. The defendants, in rebuttal, examined Pushap Raj (DW-1), who tendered his affidavit (DW1/A), and Rattan Singh (DW-2), a Retired Kanungo, before closing their evidence. 4 6. Vide judgment and decree dated 16.12.2019, the learned trial Court held that the plaintiffs were not entitled to the relief of declaration, had no right of easement to use the path in the suit land, and were consequently not entitled to a permanent prohibitory injunction. 7. Feeling aggrieved, the appellants (plaintiffs) preferred an appeal before the First Appellate Court on grounds that the judgment and decree were against law and facts. They argued that they and their predecessor-in-interest were the dominant owners of the suit land, which had been enjoyed and utilized as a common path since time immemorial without any interruption or obstruction until 01.04.1993 by the servient owners, namely the defendants and other co-sharers. This common path led to their houses, shops, and store abutting the suit land, and thus, the suit land was enjoyed as an easement—a right of path—for over 50 years, a right duly incorporated in the revenue record as 'Gair Mumkin Rasta.’ 8. They contended that Nand Lal (PW-7), the Field Kanungo, had categorically stated during his testimony that he had demarcated the plaintiffs' land and building and issued a demarcation report (Ex.PW7/A), which specifically mentioned that the common path over the suit land led to the plaintiffs' houses, shops, and store and that there was no obstruction at the time of demarcation. It was further argued that the predecessor-in-interest of plaintiffs no. 1 & 2 had purchased the 5 land from defendant no. 3 in 1987, but the right of path over the suit land already existed and was recorded in the revenue record prior to this purchase. The appellants also submitted that the statements of PW-1 and PW-2 had been entirely overlooked by the learned trial Court, which had based its findings on mere surmises, conjectures, and hypotheses. They, therefore, prayed for the appeal to be accepted and the impugned judgment and decree to be set aside. The First Appellate court dismissed the appeal, therefore, the present appeal. 9. Heard Counsels for the appellants and perused the impugned judgments. 10. The case of the plaintiffs is that they possess a right of easement by prescription to use a path existing on the defendants' land comprised in Khasra No. 1126, the servient heritage, as an approach to their residential buildings-cum- shops situated upon their own land comprised in Khasra Nos. 1124, 1125, and 1112, the dominant heritage. This claim has been squarely denied by the defendants. 11. For a successful claim of an easement by prescription under the Indian Easements Act, 1882, the plaintiffs were mandatorily required to plead and prove that they have been in peaceful, open, and uninterrupted enjoyment of the right for a continuous period of twenty years, ending within two years preceding the institution of the suit. The Court finds that the plaintiffs have failed to discharge this fundamental burden. 6 Their pleadings are deficient in specifically alleging the requisite nature and period of enjoyment. 11. Crucially, the evidence led by the plaintiffs is wholly insufficient to prove such uninterrupted use. The testimony of plaintiff No. 2, Sh. Bhal Chand (PW-1), reveals that the land comprising the dominant heritage for plaintiffs No. 1 and 2 was purchased only in 1987, with the building constructed as recently as 1992, which directly contradicts the plea of usage since time immemorial. Furthermore, the testimonies of PW-3 and PW-4, upon whom the plaintiffs relied, are rendered inconsequential as these witnesses admitted to not having visited the locality for several decades prior to the suit, thus rendering them incapable of deposing on the critical element of uninterrupted enjoyment for the statutory period. 12. While the defendants have admitted the existence of a path on Khasra No. 1126, they have consistently maintained that this path serves as an access to the courtyard of defendant No. 3 situated on Khasra No. 1113 and have explicitly denied that the plaintiffs possess any legal right to use it. This position was duly testified by defendant No. 2, Sh. Pushp Raj (DW-1), in his examination-in-chief, and no contrary suggestion was put to him during his cross-examination by the plaintiffs' counsel, thereby leaving the defendants' testimony unchallenged on this pivotal point. The admission of the path's physical existence 7 does not, in law, equate to an admission of the plaintiffs' easementary right.. 13. In light of the foregoing, this Court holds that the plaintiffs have failed to establish their claim of a prescriptive easement over the suit land. Consequently, they are not entitled to the relief of declaration sought. As the foundational right of easement remains unproven, the consequential reliefs of permanent and mandatory injunction cannot be granted. 14. 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 appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 11th November, 2025 (Gaurav Rawat/TB)