Easement of necessity requires proof of transfer or common ownership, which was lacking in this case.

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 No For the petitioner : Mr. Ramakant Sharma, Advocate.

For the respondents : Mr. Amar Deep Singh, Advocate.

Satyen Vaidya, Judge Aggrieved against order dated 06.01.2024 passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. in Civil Miscellaneous Appeal No.77-14 of 2023, the instant petition has been filed by the petitioner.

2. The petitioner is plaintiff in Civil Suit No.17/01 of 2023 pending on the files of learned Senior Civil Judge, Ghumarwin, District Bilaspur, H.P. The respondent is the defendant in the said suit. The parties hereinafter shall be referred to by the same status as they hold before learned Trial Court.

1 Whether reporters of Local Papers may be allowed to see the judgment?

3. The plaintiff has prayed for a decree of declaration to the effect that he has a right of path by way of easement of necessity through the land comprised in Khata/Khatauni No.75/84, Khasra No.445 measuring 16-2 bighas situated in Village Ghandalwin Pargana, Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. (for short the suit land). A decree for permanent prohibitory injunction has also been sought to restraint the defendant from causing any interference in the suit land by digging, raising construction, changing the nature and by blocking the existing path. In alternative, a prayer has also been made for restoration of the existing path in the suit land, in case the same was disturbed during the pendency of the suit.

4. Plaintiff is owner of land comprising in Khata/Khatauni No.147 Min, 163 Min, Khasra No.441 measuring 4-12 bighas situated in Village Ghandalwin Pargana, Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. Defendant is one of the co-owners of the suit land. Plaintiff claims that there is an old path in the suit land which is being used by plaintiff and other inhabitants since the time of their ancestors and for more than hundred years. The path is alleged to be starting from Dadhol to Ladraur road up to the land comprised in Khasra No.441. According to plaintiff, the alleged path through the suit land is used by him and others for day-to-day work. It is also the case of plaintiff that the alleged path in the suit land is the only available path to the plaintiff and there is no alternative for ploughing the fields by the plaintiff. According to plaintiff, he is using the said path for egress and ingress and the defendant has got no right to obstruct the same in any manner. Plaintiff has also claimed that earlier the path was used for the passage of cattle and now for use of tractor since about last 25 years. Plaintiff has alleged that on 27.01.2023, the defendant started blocking the path through suit land, which forced the plaintiff to file the suit.

5. The defendant has filed the written statement and has raised various legal objections. It has been submitted that prior to filing of the suit against defendant, the plaintiff had filed a suit against the State of Himachal Pradesh & Ors. In the said suit, plaintiff had claimed that the defendants in that suit were upgrading the road and blocking the existing road used for plying the tractor. In that suit, the plaintiff had got the spot inspected from a Local Commissioner. The claim of the plaintiff that a passage was being used through suit land either by him or his predecessors has been denied in totality.

6. Alongwith the suit, plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for interim injunction. Learned Trial Court dismissed the application vide order dated 24.07.2023. P