SHANTI DEVI Vs. CHATTER SINGH

JUDGEMENT

(1.) By way of the present appeal, the appellants has challenged the judgment passed by the Court of learned Additional District Judge (Presiding Officer) Fast Track Court, Solan, District Solan, in Case No.6FTC/13 of 2007, dated 26.9.2007, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Kasauli, District Solan, in Civil Suit No.188/1 of 06/2001, dated 26.12.2006.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for permanent prohibitory injunction restraining the respondents/defendants (hereinafter referred to as 'defendants') from causing obstruction with his right of user of path comprised in Khata/Khatauni No.214/319, Khasra No.2208/1530 measuring 1-13 bigha, situated in mauza Kasauli, Pargana Basal, Tehsil Kasauli, District Solan, (hereinafter referred to as 'suit land') entered in the copy of jamabandi for the year 1997-98. It is alleged that the plaintiff constructed a residential house in Khasra No.2207/1530 and also installed a gate, which was connecting the path in dispute passing through Khasra No.2208/1530 and was 5 ft. in width and approximately 150 ft. in length and connecting his house with the State Highway Garkhal-Kasauli road. The path in dispute was in existence for the last more than 100 years, being used not only by the plaintiff, but by the villagers. The plaintiff also alleged that he was using the path in dispute since 1971 and the said path was semi mettled by the Gram Panchayat. The plaintiff also alleged that he was using the path in dispute without any obstruction and there was no path except the path in dispute for his residential house and thus, he had acquired easementary right to use the path in dispute.

(3.) Defendants have contested the suit of the plaintiff by taking preliminary objection that the suit was not maintainable and the plaintiff has no cause of action to file the present suit. It was also alleged that the suit was bad for non-joinder and mis-joinder of necessary parties and the plaintiff was estopped by his act and conduct to file the present suit. On merits, the defendants denied the existence of path in dispute. It was also denied that the plaintiff and other villagers had been using the path in dispute.