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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
SURESHWAR THAKUR, J.
Surinder Singh Son Of SH. Bali Ram - Appellant
Versus
SH. Hem Chand Verma, Son of SH. Dharam Dutt, - Respondent
Regular Second Appeal No. 25 of 2006
Decided on : 23-09-2021
Constitution of India, 1950 - Civil Suit - Plaintiffs instituted a Civil Suit before Sub Judge - In the afore Civil suit, the plaintiffs claimed right of easement of necessity over the servient heritage owned by the defendant - Plaintiffs espoused, for theirs being permitted to exercise, on servient heritage owned by defendants, easementary right of theirs trudging thereons, and, exercisings (supra) by them over servient heritage, became rested on pleaded ground of easement of necessity - In relief clause of civil suit supra, plaintiffs prayed for making of hereinafter extracted relief - Whether right of passage by way of easement of necessity can be claimed even when alternative passage is available – Held, drawn inference, became strived to be negated, by plaintiff, and, also he strived to stake a claim only, vis-a-vis, above pleaded easementary right of necessity, over suit path rather through his, in his cross-examination, claiming pleaded easementary right over servient heritage, as echoed in relief clause supra, strikingly on ground, that it became echoed in the sale deed - Consequently, this Court was led to peruse contents of sale deed - A reading of sale deed, for determining afore strivings of plaintiffs, however, did not reveal, that it contained any echoing hence supportive of strivings supra, as made by plaintiffs - Therefore, plaintiffs' endeavour to, on afore score, claim exercisings by way of necessity, pleaded right of easement, over suit land, becomes fully negated - As a corollary, pleaded right of easement by way of necessity, over the suit path, as is echoed in relief clause supra, and, as borne in civil suit supra, cannot be permissibly exercised thereons rather by plaintiffs - Courts below are based, upon a proper and mature appreciation of evidence on record - While rendering findings, both Courts below have not excluded germane and apposite material from consideration - Substantial question of law is answered in favour of respondent, and, against appellants – Appeal dismissed.
JUDGMENT :
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:-
2. The defendant instituted a written statement, and, along therewith a counterclaim was also instituted, wherein, he pleaded complete denial, vis-a-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/counterclaimant, vis-a-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:-
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 learned trial Court on 9.1.20
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