A suit for mere injunction based on alleged prescriptive right without a prayer for declaration of such right is not maintainable. An easementary right becomes enforceable only when it is declared by a court of law. The plaintiff seeking permanent injunction based on easementary right must also seek a declaration of such right.

JUDGMENT :

TARLOK SINGH CHAUHAN, J.

1. Whether in absence of any relief for declaration can a suit for injunction be maintained? is a moot question that falls for consideration. However, before answering this question, brief facts need to be noticed.

The parties shall be referred to as the 'plaintiff' and the 'defendants'.

2. The plaintiff filed a civil suit for permanent prohibitory and mandatory injunction against the defendants on the ground that he is owner in possession of the land comprised in Khata Khatauni No.6/6, Khasra No. 385, measuring 13-00-00 bighas, situated in Mohal Pukhri, Pargna Chuhan, Tehsil Dalhousie, District Chamba, H.P. It was pleaded that defendant No.1 is also owner of Khasra Nos. 381 and 395, Khata Khatauni No. 79/94, measuring 01-01-00 bighas, situated in the same Mohal. It was further pleaded that the plaintiff has constructed a house over Khasra No. 385 for last more than 25 years and it was also alleged that there is a passage which starts from CBA Pathankot PWD road and goes through Khasra No. 380, 381 and upto Khasra No. 385. It was also pleaded that the said path is in existence for more than 25 years and the plaintiff is using the same and as such, the plaintiff claimed that he has acquired the right of easement by way of necessity and prescription as there is no other alternative path. It was further averred that on 21.6.2010 the defendants forcibly started digging the suit land for raising the construction and they also threatened to demolish the path. The plaintiff requested them not to do so, but they were adamant for the said illegal act and as such, the plaintiff prayed that the suit may be decreed for permanent prohibitory and mandatory injunction.

3. The defendants contested the suit by filing written statement, wherein preliminary objections qua maintainability, locus standi and cause of action were raised. On merits, it was denied that the plaintiff constructed the house about 25 years back and it was alleged that the plaintiff purchased the land on 21.6.1991 and they are raising the construction on their own land. They further alleged that there is already another alternative path exist on the spot and denied the passage/path over the suit land.

4. On the pleadings of the parties, the learned trial Court framed the following issues:

1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP

1A. Whether plaintiff has right of easement by way of prescription over the Khasra No. 380 and 381 belonging to the defendants as he is using the same as path for access to his house for last more than 25 years, as alleged? OPP

2. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP

3. Whether the suit is not maintainable, as alleged? OPD

4. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD

5. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD

6. Relief.

5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit on 18.4.2018 and the appeal filed against the same also came to be dismissed by the learned Additional District Judge, Chamba on 25.8.2018.

6. Aggrieved by the judgments and decrees passed by both the learned Courts below, the appellant/plaintiff has filed the instant appeal.

I have heard learned counsel for the parties and have gone through the material placed on record.

7. As observed above, the solitary issue that is required to be considered in this case is "whether in absence of any relief for declaration can a suit for injunction be maintained?".

8. In D.Ramanatha Gupta vs. S. Razaack, (1982) AIR Karnataka 314, it was held by the Karnataka High Court that a suit for mere injunction is not maintainable when the suit is based on alleged prescriptive right without a prayer for declaration that the plaintiff has acquired such prescriptive right.

9. Similar issue came up before the High Court of Andhra Pradesh in Vanga