SURESH CHAND Vs. HINDU MAL

JUDGEMENT

(1.) Admittedly, the appellant/plaintiff and pro forma respondents/defendants are owners in possession of the land comprised in Khasra No. 1232 situated in Mauza Arhal, Tehsil Rohru, District Shimla, which was purchased on their name by their father 23 years before the filing of the suit, out of which the present appeal has arisen. The suit was filed by the appellant/plaintiff against late Shri Chiba and respondent/defendant No. 2 for permanent prohibitory injunction restraining them from obstructing or hindering the path described in the plaint claiming that he along with pro forma respondents/defendants has been using it as of right since they had purchased their land but on 30/04/1981 the path was obstructed by respondents/defendants by pelting stones on them. During the pendency of the appeal in this Court Shri Chiba has died and his legal representatives have been brought on record as respondents/defendants 1(a), 1(c) to 1(f). The path in dispute, as stated in the plaint, runs through the land comprised in Khasra Nos. 618/127, 126 and 510/293/127 situated in Chak Gangtoli belonging to the respondents/defendants.

(2.) The respondents/defendants had resisted the suit and denied that there existed any path which the appellant/plaintiff and pro forma respondents/defendants had been using, as alleged by them. According to them, on 30/04/1981, the appellant/plaintiff and pro forma respondents/defendants wanted to lead a new path through their land, to which they objected. The matter was also reported to the police and on spot inspection it was found that there was no path from their land.

(3.) The trial Court rejected the defence of the respondents/defendants and decreed the suit holding that there exists the path in dispute which the appellant/plaintiff and pro forma defendants/respondents had been using for the last many years. It was also found by the trial Court that the respondents/defendants had been interfering with the right of the appellant/plaintiff and pro forma respondents/defendants by obstructing the path in dispute. The Additional District Judge set aside the findings of the trial Court on the grounds, inter alia, that neither there are pleadings nor proof that the appellant/plaintiff had acquired easementary rights by prescription over the path in dispute. According to him, simple use of the path in. dispute for the last 23 years without any objection by the respondents/defendants does not establish that the path in dispute has been used as of right. On the scrutiny of oral and documentary evidence produced on record, the Additional District Judge has come to the conclusion that it is not proved by the appellant/plaintiff that he or his predecessor had been using the path in dispute without interruption for more than 20 years ending within two years next before the institution of the suit. He has rejected oral evidence produced by the appellant/plaintiff on the ground that the witnesses produced by the appellant/plaintiff are either chance witnesses or interested witnesses.