RSA-990 of 2014(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA-990 of 2014(O&M)

Reserved on:-18.4.2023

Date of Pronouncement:-24.4.2023

Man Singh (since deceased) through his LRs

...Appellants

Versus

Amar Singh

...Respondent

CORAM:

HON'BLE MR.JUSTICE H.S.MADAAN

Present:

Mr.Amit Jain, Advocate

for the appellants.

Mr.Ajay Vijarania, Advocate

for the respondent.

****

H.S. MADAAN, J.

1.

Briefly stated, facts of the case are that plaintiff Amar Singh

had brought a suit against defendant Man Singh, seeking a declaration that

he is using a path of 2 karams width and 4 karams length towards northern

western crossing of Khasra No854//13 comprised in Khewat No.3045

Khatoni No.3558 situated at village Barwala, Tehsil and District Hisar as

per the jamabandi for the year 2008-09 (shown in red colour in the site

plan attached) for the last 22 years without any interruption and

intervention and that there is no other access to his fields except the

BRIJ MOHAN

2023.04.25 13:52

I attest to the accuracy and

authenticity of this order/judgment,

HIgh Court, Chandigarh

RSA-990 of 2014(O&M)

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passage in question, therefore he has got a right to use the passage by way

of easement of prescription and easement of necessity and defendant be

restrained from closing the said passage or interfering with peaceful use of

the same by the plaintiff.

2.

As per the version of the plaintiff, he along with defendant

and some others were joint owners of the agricultural land, which they

had privately partitioned in which plaintiff got 32 kanals comprised in

khasra No.853//10(8-10) and 854//6(8-0), 7(8-0) and 8(8-0); at that time

the parties had orally agreed to leave a path of 4 karams on the northern-

western crossing of killa No.854//13 for having access to the land of the

plaintiff; the said path is in existence since then being used by the plaintiff

for going to his fields by tractor-trolley, bullock cart etc.; of the late the

defendant threatened to grab the passage by merging it with his remaining

land to which he has no right. Feeling aggrieved, the plaintiff brought the

suit in question.

3.

On notice, the defendant appeared and filed a written

statement contesting the suit raising various legal objections, on merits

denying that previously there was joint holding of the agricultural land by

the parties or that any private partition had taken place in the year 1990.

The defendant denied existence of any such path as claimed by the

plaintiff contending that the defendant is cultivating khasra No.854//13(6-

6) since long. According to the defendant the plaintiff used to go to his

fields through khasra No.854//9/1, which falls towards western side of his

land bearing khasra No.854//8. Refuting the remaining assertions, the

defendant prayed for dismissal of the suit.

BRIJ MOHAN

2023.04.25 13:52

I attest to the accuracy and

authenticity of this order/judgment,

HIgh Court, Chandigarh

RSA-990 of 2014(O&M)

-3-

4.

On the pleadings of the parties, following issues were

framed:

1. Whether there exists two karam wide path as alleged in the plaint?

OPP.

2. If issue No.1 is proved, whether the plaintiff is entitled to get

injunction as prayed for?OPD.

3. Whether the suit of the plaintiff is not maintainable? OPD.

4. Whether the plaintiff has no cause of action and locus standi to file

instant suit? OPD.

5. Whether the plaintiff has suppressed true and material facts from

the Court, if so to what effect? OPD.

6. Whether the plaintiff is estopped by his own act and conduct from

filing the suit? OPD.

7. Whether the suit of the plaintiff is bad for non-joinder and mis-

joinder of necessary parties? OPD.

8. Relief.

5.

The parties were afforded opportunities to lead evidence in

support of their respective claims.

6.

During the course of his evidence, the plaintiff got his own

statement recorded as PW1 besides examining Ajeet Singh, Patwari as

PW2. The plaintiff also tendered in evidence certain documents.

In rebuttal the d