The need for clinching evidence of the contested path being the only accessible route and the availability of alternative routes in determining easementary rights and entitlement to injunction.

Sureshwar Thakur, J.

The plaintiff's suit for permanent prohibitory injunction for restraining the contesting defendant from interfering with his possession qua the suit land stood decreed by the learned trial Court. However, in an appeal preferred therefrom by the contesting defendant before the learned first Appellate Court, the latter Court reversed the judgment and decree rendered vis-a-vis the plaintiff by the learned trial Court. In sequel, the plaintiff stands aggrieved by the judgment and decree rendered by the learned first Appellate Court whereupon he is constrained to assail it by instituting the instant appeal therefrom before this Court.

2. Briefly stated the facts of the case are that the suit land comprised in Khasra No. 410min sabik and Khasra No.61 hall, measuring 0-25-85 hectares, situated in Chak Hanstari, Sub Tehsil, Tikkar, District Shimla, H.P. is recorded in joint ownership of the plaintiff and proforma defendants. The suit land is in exclusive possession of the plaintiff for the last more than 30 years on the basis of private partition. The plaintiff has been cultivating the land exclusively, sowing crop regularly and also raised an apple orchard over the land, which is more than 12 years of age. Defendant No.1 is trying to interfere in the peaceful possession of the plaintiff by damaging the crop and tying to dispossess the plaintiff from the suit land. The defendant made an attempt to tres-pass over the suit land without any legal right, title or interest. Hence the suit.

3. Defendant No.1 contested the suit and filed the written statement, wherein preliminary objections have been raised qua resjudicata and estoppel. On merits, defendant No.1 admitting the fact of the plaintiff cultivating and growing the crop over the suit land averred that the defendant has a path to his field situated over khasra No.67 through his land comprised in khasra Nos. 42 and 41, over which residential house of the defendant was situated and the said passes through the suit land. The apple orchard of the defendant over khasra No.67 was more than 30 years old. The defendant has been using the path for the last more than 35 years though the suit land was growing crops, maintaining his apple orchard thereon and after harvesting the crop to bring the same and has acquired the right of easement of necessity and custom. There was no alternative path for the defendant to reach his land khasra No.67. The paths which are used by the villagers to enter their fields are not the recorded paths. The plaintiff has take the similar plea in earlier suit No.156/1 of 96, 140/1 of 98 and the Sub Judge had vacated ex-parte injunction. The appeal filed by the plaintiff was also dismissed on 16.02.2000. The plaintiff has filed the suit after withdrawing the earlier suit without pleading liberty to file a fresh and to cause irreparable loss and injuries to the defendant.

4. The plaintiff/appellant herein filed replication to the written statement of the defendant/respondent, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.

5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-

1. Whether the defendant is causing interference over the suit land, as alleged? OPP

2. In case issue No.1 is proved, whether the plaintiff is entitled for injunction as prayed for? OPP

3. Whether there exists a path, which is being enjoyed by the defendant over the suit land as alleged? OPD

4. If issue NO.3 is proved, whether the defendant has got right to enjoy the path as claimed? OPD

5. Relief.

6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court rendered a decree for permanent prohibitory mandatory injunction in favour of the plaintiff/appellant. In an appeal, preferred therefrom by the defendant/respondent No.1 herein, the learned first Appellate Court allowed the appeal.

7. Now the plaintiff