KRISHANU DECEASED THROUGH LR'S GEETA AND OTHERS v. ROOP DEV DECEASED THROUGH LR JAMNA DEVI AND OTHERS I
RSA/508/2004 · 2026-09-30
Virender Singh
body2026
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[ 2026 DAILYLAW 24829 (HP) · dailylaw.ai ]
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[ 2026 DAILYLAW 24829 (HP) · dailylaw.ai ]
Judgment text
Extracted from the PDF above. The PDF is authoritative.
2026:HHC:42216 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 508 of 2004 Reserved on : 14.08.2026 Decided on : 30.09.2026 Uploaded on : 30.09.2026 Krishnu @ Krishan Chand (deceased) through LRs.
…Appellants Versus Roop Dev (deceased) through LRs.
…Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Sanjeev Kuthiala, Senior Advocate, with Ms. Tamanna Sharma and Ms. Preeti Thakur, Advocates. For the respondents : Mr. Jai Lal Thakur, Advocate, vice Mr. G.R. Palsra, Advocate. __________________________________________________________ Virender Singh, Judge Appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2026:HHC:42216 Procedure (hereinafter referred to as the ‘CPC’), against the
judgment and decree dated 01.10.2004, passed by the Court of learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P. (hereinafter referred to as the ‘learned First Appellate Court’), in Civil Appeal No. 112/2002, 77/2004, titled as ‘Roop Dev & Anr. Vs Krishanu’.
2. By way of judgment and decree dated 01.10.2004, the learned First Appellate Court has allowed the appeal preferred by the respondents. The respondents had filed the above first appeal against the judgment and decree dated 29.06.2002, passed by the Court of learned Sub Judge First Class, Court No. 3 Mandi, District Mandi, H.P. (hereinafter referred to as the ‘learned trial Court’) in Civil Suit No. 161/2000 (93), titled as ‘Krishanu Vs Rup Dev & Anr.’.
3. Vide judgment and decree dated 29.06.2002, the learned trial Court has decreed the suit of the predecessorininterest of the present appellants, by granting the following relief:
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“32. In view of my discussions made above while determining Issues No. 1 to 8 since issue No. 8 has been decided against the defendant and issue No. 1 and 2 have been decided in favour of the plaintiff, suit of the plaintiff is decreed and defendants are restrained through decree of permanent prohibitory injunction to cause any sort of interference over the suit land. However, in the peculiar facts and circumstances of the case the parties to the suit are left to bear cost of the suit on their own. Decree sheet be prepared accordingly. File after completion be consigned to the record room.”
4. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
5.
Brief facts, leading to the filing of the present appeal before this Court, as borne out from the record, may be summed up, as under:
5.1. PlaintiffKrishanu has filed a suit for permanent prohibitory injunction against the defendants, on the ground that the land bearing Khata Khatauni No. 3min/4min, Khasra No. 243, measuring 031808 bighas, situated in Mauja Fatewahan, Illaqua Tungal, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as the ‘suit land’), is owned and possessed by him. In this regard, he has relied upon the copy of jamabandi for the year 1990
91. 4 2026:HHC:42216 5.2 It is the case of the plaintiff that the defendants without any right, title or interest, started causing interference over the suit land and also tried to tresspass the suit land. Despite repeated requests of the plaintiff, defendants have not resisted and finally refused to accept the prayer of the plaintiff on 24.06.1993. 5.3 On the basis of above facts, the relief of injunction has been sought. 6. When put to notice, suit has been contested by the defendants by filing the written statement, in which, they have taken the preliminary objections that the suit is not maintainable and the plaintiff is estopped by his acts and conduct from filing the present suit. 6.1 The claim of the plaintiff, qua ownership and possession over the suit land, has been admitted. However, according to the defendants, they have not committed tresspass over the suit land and they are also not destroying the crops, as alleged. According to them, Khasra No. 243 was part of old Khasra No. 347 measuring 091110 bighas. Land was in the joint ownership and
5 2026:HHC:42216 possession of the parties to the lis. In this regard, they had relied upon the copy of jamabandi for the year 1985
86. During the consolidation proceedings, the land in question along with other land of the parties, has been partitioned and the land comprising Khasra No. 243 (suit land) was allotted to the plaintiff. However, there was a path on Khasra No. 243, which is 4 feet wide and is existing on the spot for the last more than 60 years.
This path starts from the house of the defendants, after passing through Khasra No. 244 and thereafter the path is existing over Khasra No. 243 (suit land), and then, the same connects the house of the plaintiff with main road i.e. MandiKotli road. In this regard, the spot map prepared by them, has also been relied upon by them. The said path is stated to be the only ingress and outgress for the house of the defendants and they are using this path continuously for last more than 30 years, as a matter of right. Without this path, the defendants could not approach their house and other property. According to them, there is easement of necessity in their favour. 6 2026:HHC:42216 6.2 It is the further case of the defendants that it is the plaintiff, who had started causing obstruction in the user of the path, in the month of June, 1993. Thereafter, the application was moved to the police on 22.06.1993. Matter was compromised in the presence of respectable persons of the locality, in which, the plaintiff has admitted the right of the defendants and agreed not to obstruct the path in future. On the basis of said undertaking, the police proceedings were dropped. Thereafter, the plaintiff had filed the present suit. 6.3 As such, a prayer has been made to dismiss the suit. 7. Plaintiff filed the replication, denying the preliminary objections, as well as, the contents qua existence of any path through Khasra No. 243, as alleged. In addition to this, the stand taken by the defendants qua easementary right of path over the suit land has also been disputed.
According to them, there is a main path, which is nearby to the suit land and this path is used by the defendants, as well as, the other villagers, whose houses
7 2026:HHC:42216 are situated nearby the house of the defendants and the Panchayat has also repaired the said path, but the defendants with a malafide intention and just to destroy and damage the crops of the plaintiff, want to create the path through the land of the plaintiff. 8. From the pleadings of the parties, following issues were framed, by the learned trial Court, vide order dated 12.01.1995:
“1. Whether there exists a path over the suit land and the path is being enjoyed by the defendants since long, as alleged, if so, its effect? OPP
2. Relief. 9. After framing of the issues, parties to the lis were directed to adduce evidence. 10. Thereafter, the suit of the plaintiff was decreed, vide judgment and decree dated 01.07.1996. However, the case was remanded back by the learned District Judge, and following issues were framed on 31.07.2000:
1. Whether the defendants are causing interference in the ownership and possession of the plaintiff over the suit land, as alleged? OPP
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2. If issue No. 1 is proved, whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP
3. Whether the suit is not maintainable and sustainable in the present form? OPD
4. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD
5. Whether no cause of action has accrued to the plaintiff to file the present suit? OPD
6. Whether the court has no jurisdiction to try the suit? OPD
7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
8.
Whether defendants are enjoying path through Khasra No. 243 as a matter of right and as an easement of necessity, as alleged? OPD
9. Relief. 11. Thereafter, the parties were directed to adduce evidence. 12. After closure of the evidence and upon hearing
learned counsel for the parties, the learned trial Court has
decreed the suit of the plaintiff, vide judgment and decree dated 29.06.2002.
13. Said findings have been assailed by the defendants, by way of first appeal before the learned first appellate Court. The learned first appellate Court, vide
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judgment and decree dated 01.10.2004, set aside the
judgment and decree dated 29.06.2002, passed by the learned trial Court and the suit of the plaintiff has been ordered to be dismissed.
14. Feeling aggrieved from the said judgment and decree, present Regular Second Appeal has been filed by the plaintiff, before this Court, on the ground that the learned first appellate Court has misread and misappreciated the pleadings and evidence. The documents Ext. PW3/A and Ext. DA, have been misread.
15. Findings of the learned first appellate Court have been assailed on the ground that the learned first appellate Court has wrongly discarded the findings of learned trial Court qua the fact that it has been proved that there is alternative path maintained by the Panchayat.
16. While allowing the appeal, according to the appellants, learned first appellate Court has not considered the provisions of Sections 13, 15 and 47 to 51 of the Easement Act.
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17. According to the appellants, the alleged compromise has wrongly been relied upon by the learned first appellate Court.
18. On the basis of above facts, Mr. Sanjeev Kuthiala, Senior Advocate, assisted by Ms. Tamanna Sharma and Ms. Preeti Thakur, Advocates, has prayed that the appeal may kindly be allowed by setting aside the
judgment and decree passed by the learned first appellate Court and suit may kindly be decreed, by restoring the
judgment and decree passed by learned trial Court.
19. Per contra, Mr. Jai Lal Thakur, Advocate, vice Mr. G.R. Palsra, Advocate, for the respondents, has prayed that the learned first appellate Court has rightly appreciated the documentary, as well as, the oral evidence and rightly dismissed the suit of the plaintiffs. As such, a prayer has been made to dismiss the present appeal.
20. The present appeal has been admitted, by this Court, on 02.12.2004, on the following substantial questions of law:
“1. Whether the findings of the learned first Appellate Court, holding that the defendant
11 2026:HHC:42216 has right of passage over the land of the plaintiff as of necessity, is dehors the pleadings and evidence on record?
2. Whether the learned first Appellate Court could have based his findings regarding the right of passage by the defendant over the land of the plaintiff on a compromise by the police?”
21. In order to decide the above substantial questions of law, it would be just and appropriate for this Court to discuss the oral, as well as, the documentary evidence led by the parties, before the learned trial Court.
22. After framing of the issues, the plaintiff appeared in the witnesses as PW1 and deposed on the lines of his pleadings, as contained in the plaint. In the crossexamination, he has admitted that earlier the holdings of plaintiff and defendants were joint. Till the holdings were joint, defendants were forcibly using the passage, in order to reach their home, whereas, they are having the passage upto their home. Well was also there on the said passage. The Well was dug by the villagers and the father of the defendants had also done voluntary contribution of physical labour. He has denied the suggestion that defendants were using the passage for the
12 2026:HHC:42216 last 3040 years. He denied that in the month of June, 1993, when he has raised the obstruction, the matter was reported to the police, where he was called to the Police Station. According to him, his signature over Ext. DA, were obtained by putting force upon him. He has denied that in the document Ext. DA, he has given undertaking that he will not interfere with the passage. Rest, he has denied all the suggestions, which, were put to him, by
learned counsel for the defendants. 23. PW2 Damodar, has deposed that there is no passage over the suit land. Defendants are having the passage, leading to their home from the main road. The said passage is in the government land. This person is having 9½ bighas holding in the village. His ancestors had purchased 35 bighas, about 50 years ago. His house is constructed half kilometer away from the land in dispute. He purchased 9½ bigha in the year 198081. Near the house of the defendants, there is a waterbouri, which is being used by the villagers for fetching the water. He
13 2026:HHC:42216 denied all the suggestions that the plaintiff has raised obstruction in the said passage. 24. The plaintiff has examined the Local Commissioner, Lalit Kumar, Advocate as PW3, who deposed that he visited the spot on 01.08.1993, in the presence of parties, as well as, their respective counsel and thereafter, submitted his report Ext. PW3/A. He has specifically deposed in the crossexamination that from the road, there are two passages existing on the spot, one is motorable and other is pedestrian path. Rest of the suggestions, he has denied. 25. To rebut this evidence, the defendants have examined, as many as, six witnesses. DW1 is defendant No. 1Roop Dev, who has deposed that consolidation proceedings had taken place in their village in the year 199091 and land was partitioned between the parties to the lis. The passage leading to his house is situated in the suit land and they are also using the said passage for fetching the water. According to him, except the said passage, there is no passage for leading to their house. 14 2026:HHC:42216 Width of the passage is 4 ft., as shown in the spot map, which he has prepared. In the month of June, 1993, the plaintiff has started obstruction in the said passage, who visited the spot and thereafter, the passage was restored. In this regard, he has relied upon the compromise Mark X. This witness is having the water connection in his resident, but according to him, there is obstruction in water supply, in case, any damage caused to the pumping machine or in the failure of the power. The distance between the houses of the parties to the lis is about 1km. The road is situated at a distance of about 1km, from his house.
The passage has been built by Panchayat. The compromise had taken place in the presence of the police. 26. DW3 Bhup Singh, also supported the case of the defendants, by asserting on the stand as taken by the defendant. In addition to this, he deposed that when dispute arose between the parties, police visited the spot, however, when the police left the spot, the plaintiff has agreed to provide the passage, vide compromise Ext. DA, which bears his signature. In the crossexamination, he
15 2026:HHC:42216 has admitted that the police had also apprised the plaintiff to compromise the matter, as the same would be in his favour. However, the plaintiff was not threatened to face the future course of action, if he fails to compromise the matter. He has admitted the existence of the main road, which, is being maintained by the Panchayat, but voluntarily stated that the said passage is only up to the house of the plaintiff. Distance between the house of the plaintiff from the house of defendants is about 250 meters. He has also admitted that between the two houses, there is a passage, which, is being used by pet animals. He has also admitted that he has seen the denfendant using the passage, built/maintained by Panchayat. 27. DW4 Padam Singh, also supported the case of the defendants, but admitted the existence of the main passage from the bus stoppage on the main road, but stated that the same is not up to the house of the defendants, but up to the house of the plaintiff. Existence of said passage is not disputed and he also admitted that said passage was being maintained by Panchayat. 16 2026:HHC:42216
28. DW5 Hukam Chand, also deposed in his examinationinchief as per the stand taken by the defendants, in the written statement. He has also deposed that except the said passage, there is no other passage.
However, he could not disclose about the Khasra number of the said land, but, admitted that a link road is there from main road to the house of Brij Lal. The said road has been constructed by the Panchayat. 29. DW6 Dharam Chand also deposed on the similar lines. 30. Apart from this evidence, the learned trial Court, in the present case, has also appointed a Local Commissioner. The report of Local Commissioner is Ext. PW3/A.
31. The learned trial Court has decreed the suit, whereas, the learned first appellate Court has set aside the said judgment, on the basis of the compromise Ext. DA. This document is a vague document, as the same does not contain any description of the land or passage, about which, the dispute has arisen, between the parties. 17 2026:HHC:42216
32. Moreover, the defendants are claiming the passage on the ground of their easementary right based upon the fact that he was having no other passage, whereas, the essential ingredients of seeking the relief on the basis of easement of necessity are not there in the pleadings. The spot map relied upon by the defendants does not depict the true picture of the said document, as well as, the evidence of defendants is too short to hold that the defendants are not having any other passage except the same, which is allegedly existing over the suit land. No counter claim seeking the declaration of the passage on the easement of necessity has been filed by the defendants and when from the report of Local Commissioner, it has been probablized that there are two passages, one is motorable and other is pedestrian, then, the plea of the defendants that they are having only one passage, is not sustainable in the eyes of law. The learned first appellate Court has given undue weightage to the compromise Ext. DA, which is too short to connect the said document with the passage,
18 2026:HHC:42216 which is admittedly existing over the land owned and possessed by the plaintiff. 33.
The well reasoned judgment passed by the learned trial Court has wrongly been interfered with, by the learned first appellate Court, as despite lengthy cross examination, nothing material could be elicited from the crossexamination of Local Commissioner, who has categorically stated about the existence of two passages on the spot. The learned first appellate Court has also ignored the admission made by the defendants’ witnesses, in which, they have admitted that the motorable passage was being maintained by the Panchayat. When, the defendants are not able to plead and prove the essentials of easementary right over the suit land, then, the learned first appellate Court has fallen into error by interfering with the well reasoned judgment passed by the learned trial Court. 34. Consequently, both the substantial questions of law are decided in favour of the plaintiff by setting aside the judgment and decree passed by the learned first appellate Court. The judgment and decree passed by
19 2026:HHC:42216 learned trial Court is ordered to be restored, by decreeing the suit, as prayed for. 35. Accordingly, the appeal is allowed, in the above said terms. Decree sheet be prepared. 36. Pending application(s), if any, shall also stands
disposed of.
37. Record be sent back.
( Virender Singh ) Judge 30th September, 2026 (Pramod Kumar)