1 ( 2025:HHC:28883 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.134 of 2021 Date of Decision : 20.08.2025 Bishmabar Singh and others …… Appellants Versus Rajinder Singh (deceased) through LRs. ……Respondents Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the appellants : Mr. R.K. Gautam, Senior Advocate with Mr. Jai Ram Sharma and Mr. Sahil Dixit, Advocates. For the respondents : Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate. Bipin Chander Negi, Judge (oral) The Appellants, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, “the CPC”), has assailed the judgment and decree dated 18.05.2016 passed by the learned Additional District Judge-I, Kangra at Dharamshala, District Kangra, Himachal Pradesh, in Civil Appeal No.19-I/XIII/2014, affirming the judgment and decree dated 02.06.2014, passed by learned Civil Judge (Junior Division), Indora, District Kangra, Himachal Pradesh, in Civil Suit No.41/2011. 2. The parties herein shall be referred to in the same manner as they were referred to before the learned trial Court and in the impugned judgment 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2025:HHC:28883 ) and decree, for the sake of convenience The facts giving rise to the present second appeal are that the plaintiffs had filed a suit for injunction against the defendants-appellants alleging that the suit land situated in Mauza Bhapoo, Tehsil Indora, District Kangra, is jointly owned and possessed by them along with other co-sharers. It was alleged that the defendants have their Abadi on the land shown in red colour in the site plan, which is connected to the main road via stairs, and that the defendants out of sheer high headedness since the marriage of the daughter of defendant No.1 on 21.2.2011 sought to use the passage shown in green colour for the Barat and thereafter attempted to make it a permanent right of use without any entitlement, leading to a quarrel and the subsequent filing of the suit. 3. 3. The defendants contested the suit by filing a written statement, admitting the construction of their house in the Abadi Deh but denying it was connected by stairs to the main road; they asserted that they use the disputed passage for egress and ingress, that it has been used by them for many years without interference, that it is a common passage known as Malatar Gali which was repaired by the Gram Panchayat under Jawahar Rojgar Yojana in 1983-84, and they denied any forcible attempt to use the passage. The plaintiffs filed a replication reaffirming their stance. On the basis of the pleadings, the learned lower court framed the following issues on 19.10.2011: 1. Whether the suit land is in joint ownership of plaintiffs along with other co-sharers as alleged? OPP 2. Whether there exists a path which is used by the plaintiffs for ingress and outgress to their abadi, as alleged? OPP 3. Whether the plaintiffs are entitled to decree for permanent injunction, as prayed for? OPP 3 ( 2025:HHC:28883 ) 4. Whether the suit is not maintainable? OPD 4. Whether the plaintiffs have not come to the Court with clean hands? OPD 6. Relief. 4. The parties led their evidence; the plaintiffs examined three witnesses and the defendants examined three witnesses. After hearing the parties, the learned lower court decided issues No.1 to 3 in affirmative and the remaining issues in negative, consequently decreeing the suit of the plaintiffs. Feeling aggrieved, the appellants have preferred a first appeal on the grounds that the judgment and decree of the trial court was against law and facts, that the trial court ignored the fact that the disputed passage was the sole access to their house and was repaired by the Gram Panchayat, that the lower court wrongly clubbed issues No.1 to 3 which required independent determination, and that the oral and documentary evidence led by the defendants was ignored. The first appellate court dismissed the appeal therefore the present second appeal. 5. Heard counsels for the parties and perused the impugned judgments. 6. An examination of the revenue records reveals that Ext.P1 and Ext.P2 pertain to the land owned and possessed by plaintiffs No.1 and 2 along with other co-sharers, Ext.P3 pertains to the land of plaintiff No.3, and Ext.P5 pertains to the land of plaintiff No.4. The defendants did not dispute the plaintiffs' title to this suit land. Ext.P4 is the Jamabandi for Khasra No.1016, which is recorded as Gair Mumkin Abadi owned by the proprietors of the Tika. The disputed passage runs through the suit land owned by the 4 ( 2025:HHC:28883 ) plaintiffs, a fact not specifically denied by the defendants, who instead asserted a right to use it. 7. To substantiate their claim, plaintiff No.1, Rajinder Singh (PW2), tendered his affidavit and testified, reiterating the plaint's contents. During cross-examination, he admitted that the Gram Panchayat spent money to lay bricks on the passage in 1983-84 but denied it was used by the defendants or was part of the Abadi Deh, maintaining his ownership. PW3, another Rajinder Singh, provided similar testimony, clarifying that while the defendants' house is on the same main passage, the disputed passage branches off from it and leads to the plaintiffs' houses. The site plan Ext.PW1/A, prepared by PW1 Harinder Salaria, was also presented. 8. In rebuttal, defendant No.1, Bishamber Singh (DW2), tendered his affidavit claiming a right to use the passage. His cross-examination proved significant, as he admitted that stairs connect his house to the main passage and that the disputed passage, known as Malatar Gali, leads from this main passage to the plaintiffs' houses. DW1, the Secretary of the Gram Panchayat, produced an abstract of record (Ext.DW1/A) showing the passage was repaired under Jawahar Rojgar Yojana in 1993-94. DW3, a photographer, produced photographs of the spot. 9. The existence of the passage is not in dispute. The defendants' case rests on claiming an easementary right to use this passage for access, not on ownership. However, the evidence, particularly the admissions of DW2 and the site plan, establishes that the disputed passage is situated on the plaintiffs' land and leads exclusively to their houses. The defendants' house is connected to the main village street by a separate access via stairs. 5 ( 2025:HHC:28883 ) The mere fact that the Gram Panchayat repaired the passage does not transform its character into a public way, as the Panchayat claimed no ownership or possession over it, and the plaintiffs consistently denied its use by the public or the defendants. The defendants failed to discharge the burden of proving a long-standing, uninterrupted easementary right by prescription. Consequently, the findings of the Courts below are based on a correct appreciation of the evidence and the law, and no interference is warranted. 10. 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) August 20, 2025 (KS/T.B.) Judge