IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.183 of 2009 Reserved on: 12.03.2026 Date of Decision: 21.04.2026 Shiva Nand ...Appellant Versus f Sukh Lal Sharma & others ...Respondents _____________________________________

Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes For the appellant : Mr Ashok Sood, Senior Advocate, with Mr Abhishek Sood, Advocate.

For the respondents : Mr B.S. Chauhan, Senior Advocate, g with Mr Munish Dhatwalia, Advocate, for respondents Nos 1 i and 2.

None for the remaining respondents.

Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 09.01.2009, passed by learned District Judge

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

(Forest) Shimla, H.P. (learned Appellate Court) vide which the judgment and decree dated 07.09.2006, passed by learned Civil Judge (Junior Division), Court No. 4, Shimla, H.P. (.learned Trial Court) were set aside. (For the sake of convenience, the parties shall be referred to in the same manner as they were arrayed before the learned Trial court.

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for seeking permanent prohibitory injunction for restraining the defendants from interfering with the use of 3 feet wide common passage leading from the main bus stand municipal road Annadale Shimla to the plaintiff’s property comprised in Kharsa No. 360 and 361 (old Kharsa No. 595 Min) measuring 201 Sq. Meters situated at Up Muhal Kaithu-1, Tehsil & District Shimla, H.P., as identified in red colour in the site plan, from raising any construction on the passage or from obstructing the passage in any manner whatsoever. A mandatory injunction for removing the obstruction caused to the passage was also sought. It was asserted that the plaintiff is the owner in possession of the building built on Khasra Nos. 360 and 361, which he had purchased from Hira Singh vide sale deed dated 03/06/1991, registered in the office of the Sub Registrar, Shimla, at Sl. No. 150, Book No. 1, Volume 8, Page 57. The plaintiff’s property is accessible only through a 10-feet-wide comm.on passage commencing from the main bus stand municipal road to Annadale, Shimla, to the plaintiff’s property. The adjoining owners have encroached upon the passage, and only 3 feet wide passage has been left. The plaintiff was using the passage continuously, uninterruprtedly, openly to the knowledge of all concerned for more than 20 years before filing the suit, and within 2 years next to the filing of the present suit, within the meaning of Section 15 of the Indian Easement Act, and he has acquir ed a right of use by way of prescription. No other convenient passage is available to the plaintiff. The plaintiff would be confined to his house in case of obstruction to the Hpassage. The defendants are bent on obstructing the passage despite requests. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement by defendants No. 1 taking preliminary objections regarding lack of maintainability, locus standi, jurisdiction and cause of action, the plaintiff having suppressed the material facts from the Court, the suit being bad for nonjoinder of necessary parties, the plaintiff being estopped to file the present suit by his acts, conduct, omission, admission and acquiescence, th.e suit having not been properly valued for Court fees and jurisdiction and the suit property having not been properly identified. The contents of the plaint were denied on the merits. It was asserted that the identification made by the plaintiff in the site plan is wrong and incorrect. The plaintiff rhas other passages, and he has been using those passages. He has no right to claim the passage through the property of the defendants; hence, it was prayed that the present suit be dismissed.

4. A replication denying the contents of the written statement