Easement of necessity cannot be claimed if an alternative passage is proven available for accessing property.

Satyen Vaidya, Judge (Oral):

This regular second appeal has been filed under Section 100 of the Code of Civil Procedure , 1908, against the judgment and decree dated 13.01.2015 passed by the learned Additional District Judge, Hamirpur, in Civil Appeal No. 42 of 2012, whereby the judgment and decree dated 05.05.2012 passed by the learned Civil Judge (Junior Division), Court No. IV, Tehsil & District Hamirpur, in Civil Suit No. 87 of 2007, has been affirmed.

2. The suit of the appellant-plaintiff has been dismissed by both the Courts.

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

3. The appellant-plaintiff had filed a suit for declaration to the effect that he was having right of pas.sage to approach his house constructed on land comprised in Khasra No.2524/1939, through the landH depicted in Site Plan marked as JKEFCD filed along with plaint (for short the “suit-passage”). The identification of the suit passage was depicted through Khasra Nos.1932, 1940, 1942 and 1933. The decree of prohibitoryt injunction was also sought to restrain the defendant from obstructing the suit passage and for mandatory injunction directing the defendant to restore the suit passage, in case the same was found to have been obstructed during the pendency of the suit.

4. Appellant-plaintiff had prayed for the aforesaid reliefs on the premise that he had a right to use the suit ipassage by way of easement of necessity. It was pleaded that the mother of parties-Smt. Kaushalya Devi was owner of entire land, which subsequently came to be owned by parties to the suit. A portion thereof was transferred in favour of plaintiff by way of sale deed by Smt. Kaushalaya Devi during her lifetime. Similarly, another portion was gifted to defendant by Smt. Kaushalaya Devi. After the death of Smt. Kaushalaya Devi, the remaining part of the land came to be inherited by plaintiff and defendant in terms of the Will executed by her. In this manner, both the brothers, i.e.

plaintiff and defendant, became owners of their respe.ctive shares in the entire land once owned by Smt. Kaushalaya Devi. H

5. Plaintiff claims that he had constructed a house on the land purchased by him from Smt. Kaushalaya Devi and till the lifetime of Smt. Kaushalaya Devi, he had been using the suit passage as a matter of right without any obstructions from udefendant or any other person. After the death of Smto. Kaushalaya Devi, defendant obstructed the suit pasCsage which prompted the plaintiff to file the suit.

6. As noticed above, plaintiff has based his claim on right of easement by way of necessity. He has categorically averred in the plaint that except for suit passage no other passage was available for approaching his house.

7. The defendant contested the suit. The main plank on which the claim of the plaintiff was resisted was availability of alternative passage to the house of plaintiff.

Rest of the averments were also denied.

8. Learned Trial Court had framed the following issues:-

“1. Whether there exists a passage as shown in the site plan, which is being used by the plaintiff ?OPP.

2. Whether the plaintiff is having a right to use the passage by way of easement of necessity? OPP.

3. Whether the defendants have obstructed the passage on point ABGF without any right to do soP? OPP.

4. Whether there exists a custom of using the courtyard of the other persons as a passage, .if so its effect?

OPP.

5. Whether the plaintiff is having right to use the passage by way of land custom? OPP.

6. Whether the defendants are threatening to obstruct the passage on point JKEFCD? OPP.

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

8. Whether the plaintiff has no locus standi to file the present suit? OPD.

9. Whether the suit is bad for non-joinder and mis-

joiunder of the parties? OPD.

10. Whether the plaintiff is estopped