The central legal point established in the judgment is that if there exists any other way, there can be no easement of necessity.

Rajiv Sharma, J.

This Regular Second Appeal is directed against the judgment and decree, dated 16.10.2004, passed by the learned District Judge, Kullu, District Kullu, H.P. in Civil Appeal No. 08/04.

2. Key facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as “the plaintiffs” for the sake of convenience) had instituted a suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as 'the defendants' for the sake of convenience) from interfering or changing the nature of the land comprised in Khata Khatauni No. 113/143 min, Khasra Nos. 1737 and 1738, Kita 2, measuring 6140 bighas, situated in Phati and Kothi Bhallan, Tehsil and District Kullu. Plaintiffs have raised an apple orchard over the suit property and the defendants were strangers. The defendants have direct approach to their land from Khasra No. 1740 for carrying out agricultural operation and path passes through Government land and one path goes from village Ruar to village Narol. The defendants were requested to desist from the unlawful activities, but they refused.

3. The suit was contested by the defendants. It is claimed that there was no orchard over the suit property and they have not interfered over the same. Khasra No. 1740 was owned and possessed by various persons and there were six houses over it and two out of them were owned and possessed by the defendants. The defendants used to take their cattle to Taratan Nallah and also bring fodder, fire wood etc. from jungle and for going to Taratan Nallah, they use the maindh of Khasra No. 1737 & 1738 and for going to Village Ruar, Garsa road, they use path through Khasra No. 1737 and 1738.

4. Replication was filed. Learned Civil Judge (Senior Division), Lahaul & Spitti at Kullu, Himachal Pradesh framed the issues on 08.05.2003. The suit was dismissed by the learned Civil Judge (Senior Division), Lahaul & Spitti at Kullu on 19.12.2003.

5. The plaintiff is preferred an appeal before the learned District Judge, Kullu, District Kullu, H.P. The same was dismissed on 16.10.2004. Hence, this Regular Second Appeal.

6. This Regular Second Appeal was admitted on the following substantial questions of law on 07.09.2005:

“1. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence, particularly the report of the Local Commissioner CW1/A, map CW1/B and the musavi P2?

2. Whether the findings of the Court below holding the disentitlement of the plaintiffs to the relief of injunction and holding that the right of a passage by prescription on the land of the plaintiff was established, is based on surmises and conjectures and legally inadmissible evidence?

3. Whether in the absence of a particular path of a particular width being pleaded and proved by the defendant and the plaintiff could be denied the relief of injunction?”

7. Mr. Rajneesh K. Lal, learned counsel for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the Court below has misread the report of the Local Commissioner Ex. CW1/A. The findings of the learned Courts below are based on surmises and conjectures and an alternative path was available to the defendants.

8. Mr. Manoj Pathak, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below.

9. I have heard the learned counsel for the parties and gone through the pleadings, judgments and the records, carefully.

10. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

11. It is admitted fact that the plaintiffs are the owners in possession of the land comprised in Khasra No. 1737. PW1 deposed that the defendants are carving a path from the land of the plaintiffs. The defendants have an existing path through Government land which lead