RAJINDER KUMAR Vs. JAGDISH CHAND

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P. dated 14.10.2003, passed in Civil Appeal No. 34 of 1997.

(2.) Key facts, necessary for the adjudication of this regular second appeal are that the respondent Jagdish Chand instituted a suit in the Court of learned Sub Judge (II), Hamirpur, for declaration and permanent injunction against the appellants-defendants (hereinafter referred to as the defendants and proforma defendant, namely Dev Raj, for the convenience sake). According to the facts enumerated in the plaint, the land bearing Kh. No. 158 was divided into three parts i.e. Kh. No. 158/1, 158/2/1 and 158/2/2. It was in the ownership and possession of predecessor of defendants No. 4(i) to 4(v), namely Sh. Puran Chand. The portion of the same was sold to defendants No. 1 to 3, namely Rajinder Kumar, Pushpam Devi and Dinu Ram. Kh. No. 158/2/1 comprising the disputed path, came to the share of defendant No. 1, Sh. Rajinder Kumar. The house of the plaintiff as well as the proforma defendant was situated over land comprised in Kh. No. 150 and 152. They had access to their house by use of the said path over the land of Rajinder Kumar for the last 20 years, continuously, openly, peacefully and without any interruption from any quarter including the defendants as an easement of way and as of right. They have acquired easementary right over the path by way of prescription. The path was shown in Aks Tatima Mashmula with letters 'A', 'B', 'C'. From point 'A' to point 'X', there existed a public path between Kh. No. 117 and 149 and also a public path from point 'A' to 'Y' which passes through Kh. No. 114 and on the western meend of Kh. No. 158/2/1. The path, according to the plaintiff, was also beyond point 'Y' and goes to Tika Didwin. The defendants have no legal right to cause any obstruction in the path in question. The defendants in collusion with each other have started interfering with the path. The matter was also reported to the local Panchayat. The Panchayat visited the spot on 29.1.1991. It is, in these circumstances, suit for declaration and permanent injunction to the effect that plaintiff and proforma defendant have acquired easementary right of path by way of prescription was filed.

(3.) The suit was contested by defendants No. 1, 2 & 4. They have filed the written statement(s). According to them, there was no path in existence over Kh. Nos. 158, 117 and 150 being used by the plaintiff and proforma defendant. It was denied that path existed over Kh. No. 158/2/1. The land in Kh. No. 158/2/1 was stated to be in the ownership and possession of defendant No. 1. According to them, there was alternative path available on the spot from the eastern side of the house of the plaintiff, which he was using since long to have access to his house.