JINDU RAM Vs. BIR CHAND AND ANOTHER

JUDGEMENT

(1.) In this Regular Second Appeal under Sec. 100 of the Code of Civil Procedure , the plaintiff in Civil Suit No. 80 of 1980 before the trial Court, is the appellant. For the purpose of disposal of this appeal, the substantial questions of law involved in the instant appeal are:

(2.) Shortly stated, the facts are that parties to the instant lis own and possess their houses in village Mashara Phati and Kothi Nagar, Teh. & District Kullu. The plaintiff constructed a house allegedly on the land where the old house of his fore- fathers was in existence. He claimed right of passage by way of easement of prescription and in the alternative by necessity for the ingress and outgress of his house in question shown as "ACMN" in site plan Ex.PW-4/A. This path allegedly passes through the vacant land in between the houses of the parties to the instant lis and temple of deity Tripura Sundri and thereafter joins the thoroughfare of the Phati. As per assertion of the plaintiff, the original defendant now being represented through his legal representatives, constructed a "TAPRA" and thereby caused obstruction to the path of the plaintiff by extending his wall from point 'B' to 'A' in front of the door of the plaintiff's house. The requests of the plaintiff to remove the obstruction failed and the said circumstances culminated into the filing of the suit for declaration and consequential relief of mandatory injunction directing the defendants to remove the obstruction by demolishing the wall "A" to "B" constructed by them.

(3.) The defendant admitted the existence of the house of the plaintiff. Rather, according to him, plaintiff had no right to claim his alleged right of user of the passage in question by way of easement either by prescription or as of necessity. Instead, it was contended that the site in question was owned and possessed by deity Tripura Sundri and she being a necessary party to the suit having not been impleaded as such, the suit is liable to be dismissed. Simultaneously, he resisted the suit on the ground of its maintainability. The trial Court framed the following issues: