The main legal point established in the judgment is the requirement for the plaintiff to establish a valid claim for easementary rights and the unwarranted adverse inference against the defendant for not testifying.

Surjit Singh, Judge(Oral)This Regular Second Appeal by the defendant is directed against the judgments and decrees of the two Courts below, whereby suit filed by respondent Devender Kumar, hereinafter referred to as plaintiff, has been decreed and appeal filed against the decree of the trial Court by appellant Swaroop Chand, hereinafter called defendant, has been dismissed, by the first Appellate Court.

2. Relevant facts may be noticed. Plaintiff Devender Kumar filed a suit for issuance of permanent prohibitory injunction restraining the defendant from obstructing, in any manner, the path leading to his house, standing on Khasra No.246, through Khasra Nos.233 and 244, situate in Mohal Khaliyar, Mandi Town. He also sought issuance of mandatory injunction directing the defendant to remove the obstruction already caused by him by raising a wall on a portion of the boundary of Khasra Nos.244 and 233.

3. Cause of action, as pleaded by the plaintiff, was that his grandmother was owner in possession of Khasra Nos.233, 244 and 246, aggregate area of which was 727.90 square metres. In the year 1972, vide deed Ext. PW1/B, she gifted Khasra No.246, measuring 412.12 square metres to the plaintiff, together with all rights, including right of passage. Thereafter she transferred Khasra Nos. 233 and 244 in favour of defendant, who is the son of the grandmother of the plaintiff. Plaintiff claimed that from the very beginning he had been passing through land comprised in Khasra Nos.233 and 244, along its southern boundary, for approaching the land comprised in Khasra No.246. In the month of August, 1990, defendant raised a wall obstructing the said passage.

4. Defendant-appellant denied that the plaintiff had any right to use any portion of Khasra No.244, as a passage, for approaching Khasra No.246. It was stated that there was a road adjoining Khasra No.246, belonging to the plaintiff and he had access to his property though that road. Some preliminary objections were also raised.

5. Trial Court concluded that though there was a motorable road adjoining Khasra No.246, plaintiff had the right to pass through Khasra No.244, in view of the evidence adduced by him, including the copies of entries in the record-of-rights. Appeal filed by the defendant-appellant before the District Judge stands dismissed. Present appeal was admitted on the following substantial questions of law: 1) Whether the learned Courts below have erred in decreeing the suit of the plaintiff and dismissing the appeal of the appellant-defendant in view of the fact that admittedly there is motorable way/path to the land of the plaintiff and the plaintiff having failed to make specific and clear averments/pleadings with regard to easementry rights being claimed by him. 2) Whether the learned Appellate Court has erred in drawing adverse inference of the fact that the defendant did not enter the witness box. 3) Whether the learned Courts below have misread and misconstrued the documentary evidence on record.

6. Learned trial Court has observed that the passage claimed by the plaintiff is entered in the record-of-rights. View taken by the learned trial Court is not correct. Copy of the jamabandi, pertaining to Khasra Nos.233 and 244 is Ext. PW1/C. In this jamabandi, it is only Khasra No.233, which is recorded as passage. Khasra No.244, in its entirety, is shown to be a vacant piece of land and no portion of it is recorded as passage. Area of Khasra No.233 is 18.40 square metres while that of Khasra No.244 is 297.38 square metres. Also there is a copy of Aks Shajra Bandobast, Ext.PW3/A. This document shows that Khasra No.233 is elongated in shape and lies parallel to Khasra No. 249, which admittedly belongs to the government and is in the shape of a road. In between Khasra Nos.233 and 246 there is Khasra No.244. This Khasra No.244 is with the defendant-appellant while Khasra No.246 is owned and possessed by the plaintiff. Below both Khasra Nos. 244 and 246 there is a ro