JUDGMENT :

SURESHWAR THAKUR, J.

1. The plaintiffs instituted a Civil Suit bearing No. 121-1 of 99/97 before the learned Sub Judge, (v), Shimla, H.P. In the afore Civil suit, the plaintiffs claimed right of easement of necessity over the servient heritage owned by the defendant. The plaintiffs espoused, for theirs being permitted to exercise, on the servient heritage owned by the defendants, the easementary right of theirs trudging thereons, and, the exercisings (supra) by them over the servient heritage, became rested on the pleaded ground of easement of necessity. In the relief clause of the civil suit supra, the plaintiffs prayed for the making of the hereinafter extracted relief:-

"It is, therefore, respectfully prayed that a decree for permanent prohibitory injunction restraining the defendant from interfering, creating any obstruction or blocking the approach path to their properties comprised in khasra Nos. 792/326/1 and 792/326/2 through the land comprised in khasra No. 793/326/6 and shown by line 'AB' in the attached tatima in any manner and a decree for mandatory injunction directing the defendant to remove the obstruction, if any, found to be created at the time of passing the decree, by the defendant, may kindly be passed in favour of the plaintiffs against the defendant with costs of the suit."

2. The defendant instituted a written statement, and, along therewith a counterclaim was also instituted, wherein, he pleaded complete denial, vis-à-vis, the afore espoused exercisings of right of easement, by way of necessity, over the servient heritage owned by him. Moreover, the defendant/counter-claimant also claimed, the making of a decree of mandatory injunction, for hence injuncting the plaintiffs, to hence restore the demolished wall, as becomes reflected in the photographs, as became attached with the written statement/counter claim. Moreover, the relief for appointment of a local commissioner, for ascertaining the encroachments made by the plaintiffs, over the land, owned by the defendant was also sought. In addition, a decree for possession was asked to be made by the defendant/counter-claimant, vis-à-vis, the portion owned by the defendant, and, encroached upon by the plaintiffs.

3. The learned trial Court, on the contentious pleadings of the parties at contest proceeded, to formulate the hereinafter extracted issues:-

1. Whether the plaintiffs have easementary right of the necessity to use the suit path as alleged in para 4 and the plaint? OPP.

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

3. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP

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

5. Whether the defendant/counter claimant is entitled for relief of mandatory injunction for restoring the debris to wall in its original possession as prayed for? OPD.

6. Whether the defendant/counter claimant is entitled for the relief of possession as prayed for? OPD

7. Whether the counter claim is not maintainable, as alleged? OPP.

8. Whether the defendant/counter claimant has no cause of action? OPP

9. Whether the land has partitioned between the plaintiffs and defendant and they are occupied the land separately as alleged, if so its effect? OPD

10. Whether the counter claim is part of the 171 of H.P. Land Revenue Act, as alleged? OPD.

11. Whether the suit has not been properly valued, as alleged? OPD.

12. Relief.

4. After perusal of the evidence adduced, upon, the above extracted issues, whereons the apposite onus stood cast, upon the contesting litigants concerned, the learned trial Court through its verdict made on 9.1.2002, both upon Civil Suit No. 121-1 of 99/97, and, upon Counter Claim No. 141-1 of 2000, dismissed both the plaintiffs' suit, and, also the defendant's counter claim (supra).

5. The counter-claimant/defendant, did not institute, any appeal before the learned first appellate Court, against the verdict, as made by the learn