IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.70/2024 Date of Decision: 24th July 2025 Kanshi Ram .....Appellant. Versus Moti ram and others …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant : Mr. G.R. Palsra, Advocate. For the Respondents : Mr. Vijay Kumar Suri, Advocate vice Mr. Sanjeev Kumar Suri, Advocate, for respondents No. 1 and 2. None for respondent No.3. 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 05.03.2024 passed by the learned District Judge, Mandi, in Civil Appeal No. 46/2023 affirming the Judgment and Decree dated 24.08.2023 passed by the learned Civil Judge, Chachiot, at Gohar District Mandi in Civil Suit No. 72/2015. 2. The parties shall hereinafter be referred to in the same way as they were arrayed before the Trial Court. The material facts necessary for the disposal of the present case are that the plaintiff and the proforma defendant have been running the "Kuhl" (water 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 channel) and "Gharat" (flour mill) since the time of their ancestors, having acquired easementary rights since time immemorial. The defendants have no right, title or interest in the same. It is alleged that the defendants began raising construction on 14.04.2015, causing interference in the water channel to render the plaintiff’s flour mill defunct. Despite requests, the defendants did not desist from their actions, leading to the cause of action arising on 14.04.2015. Based on these averments, the plaintiff filed the suit seeking a permanent prohibitory injunction restraining the defendants from interfering with the suit land or raising any construction thereon. Additionally, the plaintiff sought a mandatory injunction for the demolition of any construction already raised by the defendants, along with costs and any other relief deemed fit by the court. 3. The defendants contested the suit by filing a written statement, raising preliminary objections regarding maintainability, lack of cause of action, non-joinder and misjoinder of necessary parties, and the plaintiff’s locus standi. On merits, they denied the plaintiff’s claims, asserting that no flour mill was being operated by the plaintiff or proforma defendant on the spot. They further stated that the existing flour mill was situated on Khasra Nos. 138 and 143 and denied any interference with the water channel or the plaintiff’s rights. Consequently, they prayed for the dismissal of the suit. No replication was filed by the plaintiff. 3 4. The learned trial court framed the following issues on 07.05.2016: (1) Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as prayed for? OPP; (2) Whether the plaintiff is entitled to the relief of mandatory injunction, as alleged? OPP; (3) Whether the suit is not legally maintainable, as alleged? OPD; (4) Whether the plaintiff has no cause of action, as alleged? OPD; (5) Whether the suit is bad for non-joinder and misjoinder of necessary parties, as alleged? OPD; (6) Whether the plaintiff has no locus standi, as alleged? OPD; (7) Relief. 5. During the trial, the plaintiff examined Kanshi Ram (PW-1), who tendered his sworn affidavit (Ex. PW1/A) and a copy of the jamabandi (Ex. PW1/B). Lal Singh (PW-2) also submitted his sworn affidavit (Ex. PW2/A). Rajesh Kumar (PW-3), the Record Keeper, proved the Local Commissioner’s report (Ex. PW3/A), copy of musabi (Ex. PW3/B), spot tatima (Ex. PW3/C), and statements of Kanshi Ram (Ex. PW3/D) and the defendants (Ex. PW3/E). In rebuttal, the defendants examined Dalip Singh (DW-1), Patwari, who proved the spot report (Ex. DW1/A). Mohan Lal (DW-2), Vice President, submitted his report (Ex. DW2/A). Defendant No. 1, Moti Ram (DW-3), appeared in the witness box and tendered his sworn affidavit (Ex. DW3/A) along with a copy of the jamabandi (Ex. DW3/B). 4 6. The learned trial court, vide judgment and decree dated 24.08.2023, dismissed the plaintiff’s suit, holding that the plaintiff failed to produce any evidence proving that water was flowing in the Kuhl or that his flour mill was functioning with such water. The court noted that the Local Commissioner’s report (Ex. PW3/A) indicated no water was currently flowing in the Kuhl and found no evidence to establish that the defendants’ construction had obstructed the water flow. Consequently, all issues were decided against the plaintiff. 7. Aggrieved by the judgment and decree, the plaintiff filed a first appeal, contending that the trial court’s decision was contrary to law and the facts on record. The plaintiff argued that the court erroneously concluded that the Kuhl had not been functional for 20– 22 years, ignoring the demarcation conducted by the A.C. 1st Grade in the defendants’ presence, whose statements were recorded and proved. The plaintiff further asserted that the revenue records substantiated his claim that the flour mill operated using water from the Kuhl on Khasra No. 138. The defendants’ oral and documentary evidence was dismissed as false, fabricated, and inadmissible. The plaintiff prayed for the appeal to be allowed, setting aside the impugned judgment and decree. The First Appellate Court also dismissed the first appeal therefore the present Appeal was preferred. 8. Heard Counsels for the parties and perused the impugned Judgements. 5 9. In the present case, the core dispute revolves around the plaintiff's claim of prescriptive easement rights over the Kuhal (water channel) and the alleged obstruction caused by the defendants' construction activities in 2015. However, a meticulous analysis of the evidentiary matrix reveals fatal deficiencies in the plaintiff's case that go to the root of the matter. 10. The plaintiff's foundational claim of possessing established easementary rights under Section 15 of the Indian Easements Act, 1882 collapses when tested against the quality of evidence presented. The statutory requirement of proving uninterrupted enjoyment for twenty years stands conspicuously unfulfilled. The Local Commissioner's report (Ex. PW3/A), while documenting the physical existence of the Kuhal, makes the crucial observation that "at present the water does not flow in the kulah"- a statement that gains immense significance when read with the consistent testimonies of local residents. Lotam Ram's statement annexed with the same report categorically asserts the absence of water flow for at least ten years prior to the inspection. Pushpa Devi's account goes further back, swearing to the Kuhal's dry condition since approximately 2005. 11. The defendants have successfully rebutted the plaintiff's allegations through a three-pronged evidentiary strategy. Firstly, the testimony of DW-1 (Patwari) and the accompanying spot report (Ex. DW1/A) demonstrate that the construction occurred at a 6 considerable distance from the Kuhal. Secondly, DW-2 (Ex-Pradhan) establishes through his report (Ex. DW2/A) that the construction merely utilized existing foundations. Most crucially, DW-3 (defendant Moti Ram) provides a credible timeline showing the Kuhal's non- functional status for 21-22 years prior to 2015, meaning any prescriptive rights would have extinguished well before the alleged interference. This testimony remains unchallenged on material particulars during cross-examination. 12. The legal framework governing such disputes, as crystallized in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594, mandates that when rights are seriously disputed, a mere suit for injunction without seeking declaratory relief becomes legally untenable. The present case exemplifies this principle perfectly - the defendants' written statement raised fundamental challenges to the existence of the plaintiff's easementary rights, necessitating a prayer for declaration which the plaintiff failed to incorporate. This constitutes a fatal procedural infirmity that alone would justify dismissal. 13. On substantive merits, the plaintiff's evidence suffers from irreconcilable contradictions. While PW-1 denies the dilapidated structure in photographs (Mark-A) being his Gharat, PW-2 admits it belongs to the plaintiff. Neither witness could explain how the Gharat allegedly functioned when the Kuhal had been dry for years, nor provide any documentary evidence of recent water usage. 7 14. The defendants' evidence, in contrast, presents a coherent narrative supported by official documents. Ex. DW3/B (jamabandi) confirms their lawful possession of the construction site. Ext. DW2/A which is the spot report made by Pradhan corroborates their claim of building on existing foundations. Most significantly, the consensus among independent witnesses about the Kuhal's prolonged dry period completely undermines the plaintiff's case on the threshold requirement of continuous use for acquiring easementary rights. 15. Consequently, this Court finds no error in the concurrent findings of the courts below. The plaintiff failed to prove the existence of valid easementary rights; demonstrate any actionable interference by the defendants; and frame the suit properly when substantial rights were disputed. 16. 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 24th July 2025 (Tarun/T.B)