SATYA DEVI Vs. SMT. ASHA DEVI

JUDGEMENT

(1.) By way of the present appeal, appellants have challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 19 of 2007, dtd. 1/8/2008, vide which, the learned First Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Court No.II, Hamirpur, in Civil Suit No.128 of 2002, dtd. 16/12/2006.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as 'plaintiffs) maintained a suit for permanent prohibitory and mandatory injunction against the appellants-defendant (hereinafter referred to as 'defendant) alleging therein that the defendant alongwith other co-owners are owner-in-possession of the suit land, comprised in Khata No.106, Khatauni Nos.117 and 118, Khasra No.465/84 and 466/84, Kita-2, measuring 6 kanals 15 marlas, (hereinafter referred to as suit land) situated at Tika Sadhrian, Mouza Bamson, Tehsil Bhoranj, District Hamirpur, H.P. It is alleged that there is a passage two and half feet wide passing through Khasra No.465/84 and 466/84, which starts from State Highway PWD Road Patta-Awah Devi and passage leads to the house and cattle sheds of the plaintiffs and other villagers. This passage is being used by the plaintiffs and other villagers from the time of their ancestors without any interruption and hindrance. Even otherwise also, the defendant also using the passage from the time of their ancestors. Thus, plaintiffs and other villagers are entitled to use the said passage without any interruption and hindrance on account of easement of necessity and the said passage also shown in site plan, which is, Ex.PW4/A. It was "Kucha " passage and made it "Pucca " by Gram Panchayat, in the month of January, 1998. Thereafter, defendant tried to close the said passage in November, 1999, when an application was moved before the Gram Panchayat. A compromise was arrived at between the parties neither the defendant will stop any person from using the said passage nor will close the passage.

(3.) The suit of the plaintiffs were resisted and contested by the defendant by filing written statement and taking preliminary objections that the suit is not maintainable, plaintiffs have no cause of action and have no locus standi to file the suit. On merits, it is averred that there is no path over the suit land and so, there is no question of closing the passage.