BABU RAM Vs. BHAGWAN DASS & ANOTHER

JUDGEMENT

(1.) This appeal has been filed by the appellantdefendant against the judgment and decree dated 30.06.2006, passed by the learned Additional District Judge, Fast Track Court, Hamirpur, District Hamirpur, H.P., decreeing the suit of the respondent-plaintiff and reversing the judgment and decree dated 05.04.2000, passed by the learned Sub Judge Ist Class, Barsar, District Hamirpur, whereby the suit filed by the respondent-plaintiff has been dismissed.

(2.) The brief facts of the case are that the respondentplaintiff (herein after referred to as the 'plaintiff'), filed a suit for permanent prohibitory injunction against the appellantsdefendants (hereinafter referred to as the 'defendants') restraining them from interfering with or digging or constructing any path/road or raising any construction or changing the nature of the land comprised in Khta No.22, Khatauni No.22 min, Khasra No.122, measuring 2K-1M, as per Jamabandi for the year 1992-93, situated in Tikka Suffan, Tappa Lohdar, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as the 'suit land'), with a further prayer that in case the defendants succeeded in raising construction or changing the nature of the suit land, for mandatory injunction directing the defendants to put the land in original state. It was averred that the plaintiff was owner in possession of the suit land and the defendants were strangers and had no right, title or interest therein. It was alleged that the defendants threatened to construct a passage/road over the suit land where the Abadi of the plaintiff was situate. The plaintiff requested the defendants not to interfere or construct any passage over the suit land, but they did not pay any heed to his requests and threatened to construct the passage over the suit land. However, when in the last week of May, 1994 the defendants started interfering and threatening to raise construction of the path, he filed the present suit.

(3.) Defendants, by way of filing written statement, took preliminary objections regarding cause of action, locusstandi, estoppel, limitation, non-joinder of the necessary parties and maintainability of the suit in the present form. On merits, it is submitted that there was a passage/path over the suit land, 125 feet in length and 8 feet in width, which was being used by the defendants and other villagers since time immemorial and they alongwith other villagers have a right of easement by way of prescription to use the path which they are using continuously, openly, peacefully and uninterruptedly without any objection. It is averred that this path was used by the defendants and others for agriculture purposes which also connected other villages. It is further averred that in case the right of easement by way of prescription was not proved, then the defendants had got customary right of passage and also by way of custom over the suit land. It was alleged that the plaintiff had put a gate over the path and locked the same in the month of June, 1993 through Shri Megh Singh and Sunder Singh. It was also averred that this passage was used by the defendants for hand-pump. The defendants denied the claim of the plaintiff and prayed for dismissal of the suit.