Romesh Verma, Judge (oral)

The instant petition arises out of the order as passed by Learned Senior Civil Judge, Sarkaghat, District Mandi,HP dated 7-8-2004, whereby an application filed by the present petitioner under Order 21 Rule 32 read with section 151 of CPC has been dismissed.

2. The facts which emerges in the present case are that petitioners/plaintiffs filed a suit for declaration and injunction against the present respondent/defendant in the Court of Learned Senior Civil Judge, Sarkaghat, District Mandi, HP on 02.09.2009.

3. As per the claim as set up by the plaintiffs, it was averred that the land having Khata Khatoni No. 99 min/217 min, Khasra No. 1615, measuring 0-01-28 hectares, situated in Village Tatohli Pardana/105, Illaqua Kamlah, Sub Tehsil Dharampur, District Mandi, HP, stands recorded in the ownership of predecessor-in interest of plaintiffs, namely, Hari Singh and other co-sharers. There exists a path on the side of the suit land touching another Khasra No. 1614 on the lower side. The said path has not been recorded in the revenue record but same leads from Village Pardana to Village Drahal, which is being used by the general public and the plaintiffs. There is no other alternative path to approach the cow-shed. Defendant No. 1 being stranger objected and tried to close the path. Therefore, suit was filed for declaration and injunction by seeking the prayer that there is a path on the land comprised in Khasra No. 1614 leading from Pardana to Drahal, which is on the edges of the suit land and Khasra No. 1614 with consequential relief of injunction against the defendants.

4. The suit was contested by the present respondent by filing written statement, wherein various preliminary objections qua maintainability, cause of action, limitation etc. were raised and all the averments as made in the plaint were denied and refuted.

5. Learned trial Court framed issues on 29.12.2021 in the following manner:-

1. Whether the path existed over Khasra No. 1614, as alleged? OPP

2. Whether the path goes from the edges of Khasra Nos 1614 & 1615 and leads to the cow-shed of the plaintiffs situated on Khasra No. 1615, as alleged? OPP

3. Whether defendant No. 1 has created obstruction in the path comprising sides of Khasra Nos. 1614 & 1615, as alleged? OPP

4. Whether plaintiffs are entitled for the permanent prohibitory/mandatory injunction, as prayed for? OPP

5. Whether suit is not maintainable, as alleged? OPD

6. Whether plaintiffs have no cause of action, as alleged? OPD

7. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD

8. Relief.

6. Learned trial Court directed the respective parties to adduce their evidence in support of their respective contentions. Vide its judgment and decree dated 11.5.2016, the learned trial Court partly decreed the suit filed by the petitioner/plaintiff by restraining defendants from user of the beerh/path between the suit land and land having Khasra No. 1614, situated in Village Tatohli Pardana/105, Illaqua Kamlah, Sub-Tehsil Dharampur, District Mandi, H.P. Judgment and decree was passed by the learned trial court on 11.5.2016.

7. An application under Order 21, Rule 32 read with section 151 CPC was filed by the plaintiff/present petitioner on 18.11.2019 alleging disobedience on the part of the respondent. It was alleged in the application that the present respondent, despite passing of the judgment and decree as passed by the learned trial Court, started interfering and obstructing the petitioners from the use of the beerh/path to approach the decreed land since from 10.11.2019 in violation to the judgment of trial Court. Further, it was averred that in order to uphold the majesty of law, the respondent is required to be punished by attachment of his property and by sending him to civil imprisonment.

8. The application was duly contested by the respondent whereby various preliminary objections with regard to the maintainability, cause of action, etc. were raised him.