IMPORTANT POINT
Easement of necessity cannot be based upon a non-existing alternative path.

JUDGMENTS

Chander Bhusan Barowalia, J.—By way of the present appeal, appellants have challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No.19 of 2007, dated 01.08.2008, vide which, the learned First Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Court No.II, Hamirpur, in Civil Suit No.128 of 2002, dated 16.12.2006.

2. Material facts necessary for adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for permanent prohibitory and mandatory injunction against the appellants-defendant (hereinafter referred to as ‘defendant’) alleging therein that the defendant alongwith other co-owners are owner-in-possession of the suit land, comprised in Khata No.106, Khatauni Nos.117 and 118, Khasra No.465/84 and 466/84, Kita-2, measuring 6 kanals 15 marlas, (hereinafter referred to as ‘suit land’) situated at Tika Sadhrian, Mouza Bamson, Tehsil Bhoranj, District Hamirpur, H.P. It is alleged that there is a passage two and half feet wide passing through Khasra No.465/84 and 466/84, which starts from State Highway PWD Road Patta-Awah Devi and passage leads to the house and cattle sheds of the plaintiffs and other villagers. This passage is being used by the plaintiffs and other villagers from the time of their ancestors without any interruption and hindrance. Even otherwise also, the defendant also using the passage from the time of their ancestors. Thus, plaintiffs and other villagers are entitled to use the said passage without any interruption and hindrance on account of easement of necessity and the said passage also shown in site plan, which is, Ex.PW4/A. It was ‘Kucha’ passage and made it ‘Pucca’ by Gram Panchayat, in the month of January, 1998. Thereafter, defendant tried to close the said passage in November, 1999, when an application was moved before the Gram Panchayat. A compromise was arrived at between the parties neither the defendant will stop any person from using the said passage nor will close the passage.

3. The suit of the plaintiffs were resisted and contested by the defendant by filing written statement and taking preliminary objections that the suit is not maintainable, plaintiffs have no cause of action and have no locus standi to file the suit. On merits, it is averred that there is no path over the suit land and so, there is no question of closing the passage.

4. From the pleadings of parties, the learned Trial Court framed following issues:

“1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction and mandatory injunction, as prayed for? OPP.

2. Whether the suit is not maintainable in the present form? OPD.

3. Whether the plaintiffs have no cause of action in the present suit? OPD.

4. Whether the plaintiffs have no locus standi in the present suit? OPD.

5. Relief.”

5. The learned Trial Court after deciding issue No.1 in favour of the plaintiffs, issue Nos.2 to 4 in negative, decreed the suit.

6. Feeling aggrieved thereby defendant maintained first appeal before the learned First Appellate Court, assailing the findings of learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned First Appellate Court affirmed the findings of the learned Trial Court. Now, appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 27.10.2009, on the following substantial question of law:

“Whether the plaintiffs are entitled to relief of permanent prohibitory injunction and mandatory injunction on the basis of easement of necessity ?”

7. Mr. S.D. Gill, learned counsel for the appellants has argued that there is no easement of necessity, as there is no alternative path from the land of the defendant. He has argued that the path from the land of the defendant was not existing and it is on