The plaintiff must prove the existence of a path through the defendant's land to claim permanent prohibitory injunction. The suit must be framed as per the requirement of Order 7 Rule 3 CPC.

JUDGMENT

Sandeep Sharma, J. - Instant regular second appeal lays challenge to the judgment and decree dated 9.7.2019, passed by the learned Additional District Judge-I, Shimla, in CA No. 45-S/13 of 2018, affirming the judgment and decree dated 15.9.2018, passed by the learned Civil Judge-II ( Sr. Div.), Shimla, District Shimla, H.P., , whereby civil suit bearing CS No. 119-1 of 2015 having been filed by the appellant/plaintiff (herein after referred to as "the plaintiff") came to be dismissed.

2. Plaintiff filed a suit for permanent prohibitory injunction, restraining the respondents/defendants (in short "the defendants") from blocking public path, averring therein that he is one of the co-owner in possession of land comprised in khasra No.79 Khewat, Khatauni No.1min/1 situate at Mohal Shahal, Tehsil Shimla Rural, District Shimla, H.P., and in the year, 2009, he started construction work of his house at Shahal. The land of the defendant is adjoining to the aforesaid land of the plaintiff. Plaintiff alleged that defendant is putting obstruction on the common path, which is only passage connecting his land to the main road. Plaintiff alleged that defendants are trying to block path of the plaintiff, which exists at the boundary of khasra No. 78 since year 2009. Plaintiff alleged that defendant not only blocked the passage leading to his house from the main road, but has also blocked the common path leading to his newly constructed house and as such, he is incurring huge losses. In the aforesaid background, plaintiff prayed that his suit may be decreed and defendants may be restrained from blocking the common path and creating any nuisance near the house of the plaintiff situate on khasra No.79.

3. Aforesaid claim put forth by the plaintiff came to be resisted by the defendants, who specifically denied that plaintiff has started construction in the year, 2009. Defendants alleged that the plaintiff filed a false complaint before SDM (Rural) with respect to the path and present suit has been filed solely with a view to grab the path through the cultivated land of the defendants. Defendants spe their land. Defendants in their written statement claimed that alternative path exists for the land of the plaintiff, which is being used by him prior to filing of the suit. Defendants categorically stated in their reply that after completion of new construction, plaintiff is intending to use shortcuts to his house using land of the defendants. Defendants have specifically stated in their reply that there exists no common path through the land in any manner, rather plaintiff is trying to obtain path from the land of the defendants by dint of force and by adopting legal means. Defendants stated in their written statement that since there exists no path, there is no question of creating any hindrance. Defendants have further stated in their written statement that nothing was found against them during the inquiries conducted by the departmental authorities and as such, now the petitioner with view to harass them have filed the present suit.

4. By way of replication to the aforesaid written statement, plaintiff while denying the claim put forth by the defendants reiterated the averments contained in the suit. In the replication, plaintiff claimed that there exists common path through the land of the defendants as per Wajib-Ul-Uraz. On the basis of aforesaid pleadings adduced on record by the respective parties, court below framed following issues:

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

2. Whether suit is not maintainable? OPD.

3. Whether the plaintiff has suppressed the material facts from this court?....OPD

4. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD

5. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD.

6. Whether plaintiff has no cause of action to file the present suit?

OPD

7. Whether suit has not been fram