The central legal point established in the judgment is the recognition and application of the claim of easement of necessity under the Indian Easements Act, 1882, Section 13 and Section 17.

Bhawani Singh, J.—This regular second appeal arises out of the decision of District Judge, Chamba, in Civil Appeal No. 54 of 1988, decided on 28-10-1988, By this decision, the first appellate Court has declined to interfere with the decision of Sub-Judge, III Class, Chamba, in Civil Suit No 29/88, decided on 26 3-1988,

2. Shortly slated, the plaintiffs filed suit for permanent, prohibitory and mandatory injunction seeking relief that defendant No. 1 bad blocked their and proforma-defendant’s passage and drainage etc., comprised in Khasra No. 1241/663/4, present Khasra No 1241/663/2, South terrace of Khasra No. 1583/1241 and old Khasra No. 1241/663/2, present Khasra No 1241/663 on raised terrace amid land measuring 10 X 1 Karam and old Khasra No. 14S2/1241/2, present Khasra numbers 1587/1482 on the West terrace and old Khasra No. 1241/663/2 and present Khasra No. 1241/663 of East Terrace, land measuring 12 X 1 Karam. it is also stated that defendant No. 3 sold his land to the plaintiffs and at the time of sale, granted the right of passage in their favour and proforma defendant No. 2. The suit seeks to restrain defendant Aditya Kumar Bhanot from raising any obstruction to the passage claimed as easement of necessity on account of the non-availability of alternative path. Demolition of obstructions caused on the passage and the drainage has also been sought.

3. The defendant has opposed the reliefs sought by the plaintiffs though it has been admitted that the plaintiffs purchased the land from Nidhia (defendant No 3) but it has been denied that any kind of passage has been provided to the plaintiffs through the land in question. It is also the case of this defendant that he purchased five biswas of land from the third defendant alongwith passage which crosses Chamba Bharmour Road but he is in possession of the land less than what had been purchased by him Allegations relating to the obstruction of path and drainage have been denied like the easement of necessity pleaded by the plaintiffs.

4. The trial Court has framed the following issues, on the pleadings of the parties :

1. Whether plaintiffs and proforma defendants 2 to 4 have a right of passage and drainage over the land in dispute, as alleged ia para No. 2 of the plaint ? OPP.

2. If issue No I is proved, whether plaintiffs are entitled to the relief of injunction, as prayed for ? OPP.

3. Relief.

5. The trial Court decided these issues in favour of the plaintiffs and against the defendant and decreed the suit. Before the first appellate Court, it was the case of the defendant that no right of passage existed since it was never given to the plaintiffs by defendant No 3 and there was no legal obligation on the part of the defendant to provide the same. Claim of easement of necessity by the plaintiffs was also assailed. However, the appellate Court declined to interfere with the matter and upheld the findings recorded by the trial Court.

6. Shri Bhupinder Gupta contended that the plaintiffs have not raised the plea of easement of necessity in the plaint and, therefore, this kind of relief could not have been extended by the Courts below. This contention has been seriously disputed by Miss Bandana Lakhaopal, learned Counsel for the plaintiffs, and it was stated by her that specific plea has been raised in para 10 of the plaint. Perusal of this para negatives the plea raised by Shri Bhupinder Gupta, so the plea raised is not teneable. It was then contended by him that no issue has been framed by the trial Court on this aspect of the claim and there is no proper adjudication of the matter. This submission has no substance for the reason that the defendant has not been prejudiced on account of non-framing of the issue on this aspect. As noticed, this plea taken in para 10 of the plaint has been duly taken note of by the defendant m his reply in para 9 on page 117 of the concerned file where it has been stated that the passage did not come within the claim of easement of necessity.