An easement by grant is absolute and not extinguished by the existence of alternative access.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.208/2021 Date of Decision: 24th June, 2025.

Sandeep Kumar (deceased) through LRs .....Appellants Versus .

Satinder Kumar …..Respondent.

Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

W hether approved for reporting?1 For the Appellants: Mr. Bhupender Gupta, Sr. Advocate with Ms. Rinki Kashmiri, Advocate.

For the Respondent: Mr. N.K. tSood, Sr. Advocate with Mr.

Aman Sood, Advocate, for the respondent.

Bipin Chander Negi, Judge (oral).

The appellant, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 22.10.2021, passed by the Learned Additional District Judge Sunder Nagar, District Mandi, H.P., in Civil Appeal (Registration No.) No.60/2020, affirming the judgment and decree dated 30.10.2020, passed by the Learned iSenior Civil Judge, Court No.1, Sunder Nagar, District Mandi, HP, in Civil Suit No.30-1/2018.

2. For the sake of brevity, the parties in this appeal shall be referred to in the same manner, as they were before the learned trial court.

3. The facts leading up to the present second Appeal are that the plaintiff and defendant are real brothers and sons of Sh. Chaman Lal. The land in question originally belonged to their father, Sh. Chaman Lal, to the extent of 216/720 shares.

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

The plaintiff pleaded that their father had constructed a house and a shop consisting of ground and first floors on this land. The P house was situated on the right side of the Sundernagar-Mandi road, and on its left side, there was another shop and two rooms behind it, which belonged to the plaintiff. The defendant was in possession of two rooms and a hall. The plaintiff further claimed that another parcel of land, comprised in Khewat No. 420, Khatauni No. 669, Khasra No. 3067/549, measuring 81-91 sq. meters, also contained his house, adjacent to which the defendant had constructed his own house. There existed a gallery/passage, 1.20 meters in width and 8.80 meters in length, running between the hall of the defendant and the rooms of both parties, as depicted in the site plan (Mark-X). The plaintiff asserted that during his lifetime, their father had grganted an absolute right of passage through this gallery to the plaintiff and his family to avoid future disputes between the brothers.

4. After the death of Sh. Chaman Lal, the land was mutated in the name of his wife, Smt. Indiravati, who executed a settlement deed dated 14-03-2017, settling 45.48 sq. meters in favour of the plaintiff and 136.46 sq. meters in favour of the defendant. On 12-03-2018, the defendant and his family members allegedly closed the gallery by installing gates on both sides, obstructing the plaintiff’s access. The plaintiff contended that an easement by grant had been created by their father, which had been used as a passage for over 50 years. Aggrieved by the defendant’s actions, the plaintiff filed a suit seeking a P declaration of his right to use the gallery as an easement by grant, a mandatory injunction directing the defendant to remove the gates and platform obstructing the passage, and a permanent prohibitory injunction restraining the defendant from interfering with his use of the passage.

5. The defendant contested the suit, raising objections regarding maintainability, cause of action, estoppel, non-joinder of necessary parties, valuation, limitation, and suppression of material facts. On merits, the defendant admitted the existence of the construction and the gallery but claimed that the plaintiff had encroached upon more land than his share while constructing. He admitted installing gates in the gallery but asgserted that the plaintiff had an alternative passage through anothe