2026:HHC:21862 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 443 of 2010 Reserved on: 29.04.2026 Date of Decision: 04.06.2026 Baldev Singh & Ors ...Appellants Versus Dev Dutt ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellants : Mr Mukul Sood, Advocate. For the respondent : Mr R.K. Bawa, Senior Advocate, with Mr Ajay K. Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 25.08.2010 passed by the learned District Judge, Kangra at Dharamshala (learned Appellate Court) vide which the judgment and decree dated 01.09.2004 passed by the learned Civil Judge Junior Division-II, Nurpur, District Kangra, H.P. (learned Trial Court) were set aside. (The parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:21862 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a mandatory injunction directing the defendants to remove/demolish the wall/obstruction constructed by them in front portion of the main gate in public street starting from main Rehan Chattar to the house of the plaintiff and other houses situated in Abadi Laal Lakeer mentioned in the head note of the plaint and shown A, B, C and D in red in the site plan annexed to the plaint. A Permanent Prohibitory Injunction for restraining the defendant from interfering with the plaintiff’s ownership and possession of the suit land was also sought. It was asserted that the plaintiff is the owner in possession of the house situated in Abadi Laal Lakeer. His house is connected to Rehan Chattar through a public street that has existed since the time of his forefathers. A Gurudwara has also been constructed near the public street. The plaintiff has an approach to his house through the gate marked “X”. The plaintiff has a right to approach the public street from his house. The defendants constructed a wall/obstruction in front of the 3 2026:HHC:21862 main gate of the plaintiff’s house despite requests. The plaintiff requested the defendants to allow him to approach the road, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action, the plaintiff being estopped by his act and conduct from filing the present suit, the suit being bad for non-joinder of necessary parties, and the plaintiff having not come to the Court with clean hands. The contents of the plaint were denied on the merits. It was asserted that the plaintiff has his Abadi and residential house in the basti of Suniaras. The plaintiff wants to maintain a gate towards Galli, which is meant for the Jat community and located in the basti of Jat. The plaintiff has no right in the galli of Jat, and he cannot have any access to their basti by constructing a gate. The plaintiff is forcibly trying to damage the old wall without any right to do so. The plaintiff has concealed the material fact from the Courts. Plaintiff is not a proprietor of village Rehan as he does not have any proprietary right in any agricultural land, whereas the defendants are the proprietors of village Rehan and 4 2026:HHC:21862 have absolute right over Abadi Deh. Therefore, it was prayed that the present suit be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. The following issues were framed by the learned Trial Court on 28.11.2000: 1. Whether the plaintiff is entitled for the relief of mandatory/permanent prohibitory injunction as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the present suit?OPD 4. Whether the suit is bad for non-joinder of necessary parties?OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit?OPD 6. Whether the plaintiff has got no enforceable cause of action to file the present suit? OPD 7. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined Kishori Lal (PW1), Sushil Kumar (PW2), himself (PW3) and Nand Kishore (PW4/5). The defendants examined defendant No.1, Baldev Singh (DW1), Gagan Singh (DW2) and Kuldeep Chand (DW3). 5 2026:HHC:21862 7. The learned Trial Court held that the plaintiff has 2-3 alternative passages available to him. He admitted that members of the Jat Kalyan Sabha spent money on the upkeep of the galli Jata, and this galli was constructed by the Jat community. The plaintiff had not impleaded the members of Jat Sabha as parties. The plaintiff does not have the right to create a new passage that would cause inconvenience to the members of the public. Hence, the learned Trial Court answered issues Nos. 1 and 6 in negative, issues Nos. 2 to 5 in affirmative and dismissed the suit. 8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed a civil suit which was decided by the learned District Judge, Kangra at Dharamshala (learned Appellate Court). Learned Appellate Court held that no community can have an exclusive right over the public property. The land was part of Abadi Deh, which was not partitioned as per the law, and no member of the village could be excluded from using the common area. Public streets are not meant for the benefit of any individual or community but for the public at large. The Wajab-ul-Arz relied upon by the defendant does not show that the community has any exclusive right over 6 2026:HHC:21862 any common area, and a person of another community could not use the area reserved for the community. Learned Trial Court erred in denying the relief to the plaintiff. Hence, the learned Appellate Court allowed the appeal and granted the relief of a mandatory and permanent prohibitory injunction to the plaintiff. 9. Being aggrieved by the judgment and decree passed by the learned Courts below, the defendants/appellants have filed the present appeal, which was admitted on the following substantial question of law on 16.11.2010: 1. Whether, in view of the admission position that admittedly the plaintiff wants to create a passage by breaking open the old wall and when the plaintiff had two separate passages to his house, the decree for mandatory and prohibitory injunction could be passed on the material on record? 2. Whether the findings are vitiated for non-decision on all the points on the basis on which the suit of the plaintiff had been dismissed by the trial Court, and more particularly when no right of the plaintiff was established, and even during the pendency of the case, interim relief had been declined. 3. Whether the findings of the court below are based on misreading of oral and documentary evidence, particularly documents Ext.PW3/B, Ext.PW3/A, P1, P4, P5 and P8 as also Ext.DW1/A and Ext.DW1/K to Ext.DW1/W and Ext.DW1/F to Ext.DW1/J and the inference that the Gali Jattan was a public street, are sustainable in law. 7 2026:HHC:21862 10. I have heard Mr Mukul Sood, learned counsel for the appellants and Mr R.K. Bawa, learned Senior Advocate, assisted by Mr Ajay K. Sharma, learned counsel for the respondent. 11. Mr Mukul Sood, learned counsel for the appellants, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment of the learned Trial Court. The Wajib-ul-Arz mentions that a member of one community can not have access to the basti of a different community. The plaintiff, being a Suniara, cannot have any access to the basti of Jats. The plaintiff wants to create a forcible passage, and he is not entitled to it. The learned Appellate Court failed to apply the custom recorded in Wajab-ul-Arz and was swayed by the considerations of constitutionalism, which were not relevant in the present case. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgment in Shankar Dass and others vs. Karam Chand and others 2016:HHC:5393 and Sanjay Paliwal vs. Bharat Heavy Electricals Ltd. Through its Executive Director 2026 SCC Online SC 83, in support of his submissions 8 2026:HHC:21862 12. Mr R.K. Bawa, learned Senior Counsel for the respondent/plaintiff, submitted that the learned Appellate Court had rightly held that a common area cannot be reserved for the benefit of one community. A member of the public cannot be denied from using the common resources. The plaintiff has the house adjacent to a public street, and he has a right to access the public street from every corner of his land. This right cannot be denied to the plaintiff. Therefore, he prayed that the present appeal be dismissed. He relied upon the judgments in Patna City Municipality vs Dwarka Prasad Sinha, 1939 SCC Online Pat 369, District Board of Manbhum vs. B.N. Ry. Co. 1944 SCC Online Pat 164, Bharathamatha Desiya Sangam Madavaram and others vs. Roja Sandaram and others, CMP No. 1004 of 1986, and Godavari Bhai vs. Cannanore Municipality, Cannanore 1984 SCC Online Ker 178 in support of his submissions. 13. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 9 2026:HHC:21862 Substantial Questions of law No.1 to 3: 14. These substantial questions of law are interconnected and are being taken up together for consideration. 15. Defendant Baldev Singh stated that every community has a separate basti and separate streets. His basti had houses of 25-26 people belonging to the Jat community. No other member of the community was residing in the basti. There was a custom that members of one community did not have the right over the basti of another community. He relied upon the copy of Wajib- ul-Arz (Ext.D1), which mentions that the owners of one basti do not have the right over another basti. 16. Mr Mukul Sood, learned counsel for the appellants, submitted that the matter is governed by the customary law, which is duly recognised in Wajib-ul-Arz and prevents a member of one community from exercising any right over the basti of another community. Learned Appellate Court ignored this customary law. This submission cannot be accepted. Article 13 of the Constitution of India provides that all laws in force in the territory of India immediately before the commencement of 10 2026:HHC:21862 this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void. Article 13 (3) defines the law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having a force of law in the territory of India. Therefore, the learned Appellate Court had rightly held that any custom in derogation of the Constitution will not survive after the enactment of the Constitution of India and the Courts and the people would be guided by the Constitution and its spirit. Article 19 (1) (d) provides the citizen a right to move freely throughout the territory of India. Article 19 (1) (e) provides a right to the citizen to reside and settle in any part of the territory of India. Therefore, it is difficult to see how a custom preventing a person of a community from claiming rights over the basti of another community will survive after the commencement of the Constitution of India. 17. It is undisputed that the public street is located in Abadi Deh. It was laid down by this Court in Kewal Ram Versus Gram Panchayat Bhutti & Ors. AIR 1988 H.P. 21 that the common areas in the abadi deh are meant for use by all the people of the village. It was observed: 11 2026:HHC:21862 “9. Gleaning through the aforesaid relevant material contained in the Settlement and Land Administration Manuals which continue to apply in Himachal Pradesh, and the judicial dicta, the position which emerges is that Abadi Deh, that is, the inhabited site of the village, consists of sites on which the houses of the remembers of the brotherhood or proprietary body are usually built close together, small plots attached or annexed thereto which are used for penning the cattle, storing manure or stacking straw, empty or vacant sites unoccupied by any individual, common plots set apart for public use such as the chapel or hujra, for Dharamshala, mosques, graveyards, burning ghats, tanks, wells etc. and public paths or ways. The village site is measured in one number for the purposes of the revenue records, and the entry in the column of ownership and occupancy will be "Abadi Deh". The Abadi is almost always excluded from the operation of the Land Revenue Act, except so far as may be necessary for the record, recovery and administration of village cases. The proprietary body or brotherhood holds Abadi Deh in joint ownership, and it is treated as the common property of the community….” (Emphasis supplied) 18. Baldev Singh (DW1) admitted in his cross- examination that the door of the house of Mukand is located adjacent to the street. He volunteered to say that the door belongs to Mukund and Dev Dutt. He also admitted that a Gurudwara was also located adjacent to the disputed street and its door opens towards the street. He denied that the Gram Panchayat had maintained the street. He volunteered to say that 12 2026:HHC:21862 the street was maintained till the disputed point by the defendants and thereafter by the Gram Panchayat. 19. Gaggan Singh (DW2) stated in his cross-examination that the streets are not owned by any particular person or community but by the villagers. These are maintained by the Panchayat. He admitted that there is a Gurudwara in the disputed street and the houses of Mukand Lal and Dev Dutt are located adjacent to the disputed street. A Shiv temple is also located adjacent to the disputed street, and the people used the street to approach the temple. 20. Kuldeep Chand (DW3) admitted that the disputed street is located adjacent to the plaintiff's boundary wall. 21. The statement of Gaggan Singh (DW2) shows that the streets are commonly used by the members of all the communities. This is also evident from the fact that a Shiv temple exists near the disputed street and the people use the street to approach the temple. Therefore, the plea taken by the defendant that a member of one community cannot use the street of another community is not supported by the evidence. 13 2026:HHC:21862 22. The evidence of the defendant also shows that the house of the plaintiff is located adjacent to the disputed street, and there is a door of the plaintiff's adjacent to the disputed street. It was submitted on behalf of the plaintiff that he has a right of access at all points on his boundary. Reliance was placed upon Patna City Municipality (supra), District Board of Manbhum (supra) and Bharathamatha Desiya Sangam Madavaram (supra) in support of the submission. It is not necessary to refer to these judgments because the matter is concluded by the judgment of this Court in H.P.S.E.B. v. Hari Chand, 2008 SCC OnLine HP 15: AIR 2009 HP 30, wherein this Court held that an owner of a land adjoining the highway is entitled to access to that highway from the point at which his land actually touches it. It was observed: “25. From the aforesaid passages, it is evident that in common law, an owner of a land adjoining the Highway is entitled to access to that Highway at any point at which his land actually touches it. The private right of access is subject to the public right of passage, which is a higher right, but the public right of passage is also subject to the private right of access to the Highway where the adjoining owner may exercise that right by means which do not amount to serious obstruction to the right of passage and are not, therefore, inconsistent with it...” 23. Therefore, it is impermissible for the person residing near the highway to claim the right from all the points, but his 14 2026:HHC:21862 right is restricted to the point where the highway touches his land and which does not cause a serious obstruction to the right of the public. Therefore, it is not necessary to refer to the judgments cited on behalf of the plaintiff regarding the right of the adjoining owner. 24. The house of the plaintiff is located adjacent to the street, and he has a right to approach the street from his house. Therefore, the learned Appellate Court had rightly held the plaintiff entitled to the relief. 25. It was submitted that the plaintiff should have filed a suit to seek a declaration to establish his right. Reliance was placed upon the judgment of Sanjay Paliwal (supra) in support of this submission. This submission will not help the appellants. The fact that the plaintiff is the owner of the land adjacent to the disputed street is admitted by the defendant and his witnesses. The right of a person owning the land adjacent to a public way is fairly well settled, and no declaration was required in the present case. 26. It was submitted that the learned Appellate Court had not come to the close quarters with the reasoning assigned by 15 2026:HHC:21862 the learned Trial Court, and the judgment passed by the learned Appellate Court is not sustainable. Reliance was placed upon Shankar Dass and others (supra), in support of this submission. This submission will not help the appellants. In the present case, the learned Appellate Court had taken note of the provisions of the Constitution, which were ignored by the learned Trial Court. Therefore, the learned Appellate Court had demonstrated the fallacy in the reasoning of the learned Trial Court before reversing the judgment of the learned Trial Court. Thus, it cannot be said that the learned Appellate Court had not come into the close quarters with the reasoning of the learned Trial Court. 27. The right of an owner of the land located adjacent to a public way is not dependent upon the existence of the alternate passages. The existence of alternative passages would have been material in case of easement of necessity, but it is not material in the present case. There is no misreading of the oral and documentary evidence by the learned Appellate Court. Hence, these substantial questions of law are answered accordingly. 16 2026:HHC:21862 Final Order: 28. In view of the above, the present appeal fails, and it is dismissed. 29. Pending application(s), if any, also stand(s) disposed of. 30. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 4th June, 2026 (Nikita)