IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.243 of 2015 Date of decision: 25.08.2025 Suresh Chand Uppal. ...Appellant. Versus Bhama & Ors. ...Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the appellant : Mr. Subhash Sharma, Senior Advocate with Mr. Prantap Sharma, Advocate. For the respondents : Mr. Bunesh Pal, Advocate. Satyen Vaidya, Judge (Oral): This regular second appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 13.01.2015 passed by the learned Additional District Judge, Hamirpur, in Civil Appeal No. 42 of 2012, whereby the judgment and decree dated 05.05.2012 passed by the learned Civil Judge (Junior Division), Court No. IV, Tehsil & District Hamirpur, in Civil Suit No. 87 of 2007, has been affirmed. 2. The suit of the appellant-plaintiff has been dismissed by both the Courts. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 3. The appellant-plaintiff had filed a suit for declaration to the effect that he was having right of passage to approach his house constructed on land comprised in Khasra No.2524/1939, through the land depicted in Site Plan marked as JKEFCD filed along with plaint (for short the “suit-passage”). The identification of the suit passage was depicted through Khasra Nos.1932, 1940, 1942 and 1933. The decree of prohibitory injunction was also sought to restrain the defendant from obstructing the suit passage and for mandatory injunction directing the defendant to restore the suit passage, in case the same was found to have been obstructed during the pendency of the suit. 4. Appellant-plaintiff had prayed for the aforesaid reliefs on the premise that he had a right to use the suit passage by way of easement of necessity. It was pleaded that the mother of parties-Smt. Kaushalya Devi was owner of entire land, which subsequently came to be owned by parties to the suit. A portion thereof was transferred in favour of plaintiff by way of sale deed by Smt. Kaushalaya Devi during her lifetime. Similarly, another portion was gifted to defendant by Smt. Kaushalaya Devi. After the death of Smt. Kaushalaya Devi, the remaining part of the land came to be inherited by plaintiff and defendant in terms of the Will -3- executed by her. In this manner, both the brothers, i.e. plaintiff and defendant, became owners of their respective shares in the entire land once owned by Smt. Kaushalaya Devi. 5. Plaintiff claims that he had constructed a house on the land purchased by him from Smt. Kaushalaya Devi and till the lifetime of Smt. Kaushalaya Devi, he had been using the suit passage as a matter of right without any obstructions from defendant or any other person. After the death of Smt. Kaushalaya Devi, defendant obstructed the suit passage which prompted the plaintiff to file the suit. 6. As noticed above, plaintiff has based his claim on right of easement by way of necessity. He has categorically averred in the plaint that except for suit passage no other passage was available for approaching his house. 7. The defendant contested the suit. The main plank on which the claim of the plaintiff was resisted was availability of alternative passage to the house of plaintiff. Rest of the averments were also denied. 8. Learned Trial Court had framed the following issues:- “1. Whether there exists a passage as shown in the site plan, which is being used by the plaintiff ?OPP. -4- 2. Whether the plaintiff is having a right to use the passage by way of easement of necessity? OPP. 3. Whether the defendants have obstructed the passage on point ABGF without any right to do so? OPP. 4. Whether there exists a custom of using the courtyard of the other persons as a passage, if so its effect? OPP. 5. Whether the plaintiff is having right to use the passage by way of land custom? OPP. 6. Whether the defendants are threatening to obstruct the passage on point JKEFCD? OPP. 7. Whether the suit is not maintainable in the present form?OPD 8. Whether the plaintiff has no locus standi to file the present suit? OPD. 9. Whether the suit is bad for non-joinder and mis- joinder of the parties? OPD. 10. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD. 11. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD. 12. Relief.” 9. All the issues except Issue Nos.7 & 8 were answered in negative, and the suit of the plaintiff was dismissed. 10. Learned Trial Court while returning findings of Issues Nos.1, 2 & 3 had specifically held that the defendant had been able to prove his defense regarding availability of alternative passage/path to the house of plaintiff. Learned Trial Court placed reliance upon document Exhibit D-9, i.e. Aks Shazra Latha, as also Exhibit P-1, i.e. Jamabandi. Learned Trial Court on the basis of aforesaid documents -5- found that Khasra No.2525/1939 was owned and possessed by plaintiff and this piece of land was adjoining to Khasra No.2524/1939 on which the house of the plaintiff was constructed. It was found that the land comprising in Khasra No.2525/1939 was abutted by Municipal path and was thus, accessible from the said path. 11. Appellant-plaintiff unsuccessfully assailed the judgment and decree passed by learned Trial Court in first appeal before learned Additional District Judge, Hamirpur. In first appeal also, the findings of facts recorded by learned Trial Court were affirmed. 12. The instant appeal was admitted for hearing on 24.07.2015 on the following substantial question of law:- Whether on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable? 13. I have heard learned counsel for the parties and have also gone through the record carefully. 14. Both the Courts have concurrently returned findings of facts regarding existence and availability of alternative path to the house of plaintiff constructed over land comprised in Khasra No.2524/1939. It has been found that the adjoining piece of land comprised in Khasra -6- No.2525/1939 also belonged to plaintiff and was abutted by Municipal path. As noticed above, learned Trial Court as well as learned First Appellate Court placed reliance upon the documents placed and proved on record. The path abutting Khasra No.2525/1939 has been reflected in Exhibit D-9, Aks Shazra Latha by Khasra Nos.1781 and 1944. The aforesaid document also reveals the clear contiguity of Khasra Nos.2524/1939 and 2525/1939. It being so, no fault can be found in the aforesaid finding of fact. 15. Even otherwise, the plaintiff had failed to plead right over the suit passage by any other means except right by way of easement of necessity. Another faint reference can be found in the plaint claiming right over suit passage on the basis of custom. Noticeable, neither the details of the custom has been pleaded nor any evidence has been led to prove the same. 16. The legal position is well-settled with respect to principles underlying the claim based on easement of necessity. Once existence of alternative path is proved, the easement of necessity would not co-exist. 17. It is the case of appellant-plaintiff himself that the land once held by Smt. Kaushalaya Devi got subdivided -7- between him and his brother, i.e. defendant. The jointness of entire land at one point of time by itself would not give any right to plaintiff to claim passage from precincts of common land, once held by Smt. Kaushalaya Devi. Admittedly, the suit passage crosses through that portion of the land which has fallen to the share of the defendant. To succeed in claiming right over other’s land, one has to prove right either by way of easement or grant. Easement by way of necessity has rightly been denied in the facts and circumstances of the case. The right over suit passage by way of grant is not the claim of plaintiff. 18. Learned counsel for the appellant-plaintiff has not been able to point out any evidence which may be taken into consideration to adjudge the findings of facts recorded by learned Courts below to be either illegal or perverse. The only reference has been made to the statement of DW-Madan Kumar, who in his cross-examination has admitted a suggestion that the alternative passage is only one feet wide. The statement so made by one of defendant’s witness cannot be held sufficient to override the overwhelming documentary evidence on record. -8- 18. In result, the substantial question of law, as noticed above, is answered in negative. Accordingly, the appeal is held to be without any merit and is dismissed with no order as to costs. Decree shall be prepared accordingly. Pending miscellaneous application(s), if any, also to stand disposed of. (Satyen Vaidya) 25th August, 2024 Judge (Pardeep)