Suresh Chand Uppal vs Bhama & Ors
2025 Latest Caselaw 7601 HP

Himachal Pradesh High Court

Suresh Chand Uppal vs Bhama & Ors on 25 August, 2025

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                           RSA No.243 of 2015
                                                  Date of decision: 25.08.2025

    Suresh Chand Uppal.                                                   ...Appellant.




                                                                        .

                                          Versus

    Bhama & Ors.                                                    ...Respondents.





    Coram:
    The Hon'ble Mr. Justice Satyen Vaidya, Judge.
    Whether approved for reporting?1





    For the appellant                :      Mr. Subhash Sharma, Senior
                                            Advocate with Mr. Prantap
                                            Sharma, Advocate.

    For the respondents               :     Mr. Bunesh Pal, Advocate.

    Satyen Vaidya, Judge (Oral):

This regular second appeal has been filed under

Section 100 of the Code of Civil Procedure, 1908, against the

judgment and decree dated 13.01.2015 passed by the

learned Additional District Judge, Hamirpur, in Civil Appeal

No. 42 of 2012, whereby the judgment and decree dated

05.05.2012 passed by the learned Civil Judge (Junior

Division), Court No. IV, Tehsil & District Hamirpur, in Civil

Suit No. 87 of 2007, has been affirmed.

2. The suit of the appellant-plaintiff has been

dismissed by both the Courts.

Whether reporters of Local Papers may be allowed to see the judgment?

3. The appellant-plaintiff had filed a suit for

declaration to the effect that he was having right of passage

to approach his house constructed on land comprised in

.

Khasra No.2524/1939, through the land depicted in Site

Plan marked as JKEFCD filed along with plaint (for short the

"suit-passage"). The identification of the suit passage was

depicted through Khasra Nos.1932, 1940, 1942 and 1933.

The decree of prohibitory injunction was also sought to

restrain the defendant from obstructing the suit passage and

for mandatory injunction directing the defendant to restore

the suit passage, in case the same was found to have been

obstructed during the pendency of the suit.

4. Appellant-plaintiff had prayed for the aforesaid

reliefs on the premise that he had a right to use the suit

passage by way of easement of necessity. It was pleaded that

the mother of parties-Smt. Kaushalya Devi was owner of

entire land, which subsequently came to be owned by parties

to the suit. A portion thereof was transferred in favour of

plaintiff by way of sale deed by Smt. Kaushalaya Devi during

her lifetime. Similarly, another portion was gifted to

defendant by Smt. Kaushalaya Devi. After the death of Smt.

Kaushalaya Devi, the remaining part of the land came to be

inherited by plaintiff and defendant in terms of the Will

executed by her. In this manner, both the brothers, i.e.

plaintiff and defendant, became owners of their respective

shares in the entire land once owned by Smt. Kaushalaya

.

Devi.

5. Plaintiff claims that he had constructed a house

on the land purchased by him from Smt. Kaushalaya Devi

and till the lifetime of Smt. Kaushalaya Devi, he had been

using the suit passage as a matter of right without any

obstructions from defendant or any other person. After the

death of Smt. Kaushalaya Devi, defendant obstructed the

suit passage which prompted the plaintiff to file the suit.

6. As noticed above, plaintiff has based his claim on

right of easement by way of necessity. He has categorically

averred in the plaint that except for suit passage no other

passage was available for approaching his house.

7. The defendant contested the suit. The main plank

on which the claim of the plaintiff was resisted was

availability of alternative passage to the house of plaintiff.

Rest of the averments were also denied.

8. Learned Trial Court had framed the following

issues:-

"1. Whether there exists a passage as shown in the site plan, which is being used by the plaintiff ?OPP.

2. Whether the plaintiff is having a right to use the passage by way of easement of necessity? OPP.

3. Whether the defendants have obstructed the passage on point ABGF without any right to do so? OPP.

4. Whether there exists a custom of using the courtyard

.

of the other persons as a passage, if so its effect?

OPP.

5. Whether the plaintiff is having right to use the passage by way of land custom? OPP.

6. Whether the defendants are threatening to obstruct the passage on point JKEFCD? OPP.

7. Whether the suit is not maintainable in the present form?OPD

8. Whether the plaintiff has no locus standi to file the

present suit? OPD.

9. Whether the suit is bad for non-joinder and mis-

joinder of the parties? OPD.

10. Whether the plaintiff is estopped from filing the r present suit by his act and conduct? OPD.

11. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD.

12. Relief."

9. All the issues except Issue Nos.7 & 8 were

answered in negative, and the suit of the plaintiff was

dismissed.

10. Learned Trial Court while returning findings of

Issues Nos.1, 2 & 3 had specifically held that the defendant

had been able to prove his defense regarding availability of

alternative passage/path to the house of plaintiff. Learned

Trial Court placed reliance upon document Exhibit D-9, i.e.

Aks Shazra Latha, as also Exhibit P-1, i.e. Jamabandi.

Learned Trial Court on the basis of aforesaid documents

found that Khasra No.2525/1939 was owned and possessed

by plaintiff and this piece of land was adjoining to Khasra

No.2524/1939 on which the house of the plaintiff was

.

constructed. It was found that the land comprising in Khasra

No.2525/1939 was abutted by Municipal path and was thus,

accessible from the said path.

11. Appellant-plaintiff unsuccessfully assailed the

judgment and decree passed by learned Trial Court in first

appeal before learned Additional District Judge, Hamirpur.

In first appeal also, the findings of facts recorded by learned

Trial Court were affirmed.

12. The instant appeal was admitted for hearing on

24.07.2015 on the following substantial question of law:-

Whether on account of misreading, misappreciation and

misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment

and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?

13. I have heard learned counsel for the parties and

have also gone through the record carefully.

14. Both the Courts have concurrently returned

findings of facts regarding existence and availability of

alternative path to the house of plaintiff constructed over

land comprised in Khasra No.2524/1939. It has been found

that the adjoining piece of land comprised in Khasra

No.2525/1939 also belonged to plaintiff and was abutted by

Municipal path. As noticed above, learned Trial Court as well

as learned First Appellate Court placed reliance upon the

.

documents placed and proved on record. The path abutting

Khasra No.2525/1939 has been reflected in Exhibit D-9, Aks

Shazra Latha by Khasra Nos.1781 and 1944. The aforesaid

document also reveals the clear contiguity of Khasra

Nos.2524/1939 and 2525/1939. It being so, no fault can be

found in the aforesaid finding of fact.

15. Even otherwise, the plaintiff had failed to plead

right over the suit passage by any other means except right

by way of easement of necessity. Another faint reference can

be found in the plaint claiming right over suit passage on the

basis of custom. Noticeable, neither the details of the custom

has been pleaded nor any evidence has been led to prove the

same.

16. The legal position is well-settled with respect to

principles underlying the claim based on easement of

necessity. Once existence of alternative path is proved, the

easement of necessity would not co-exist.

17. It is the case of appellant-plaintiff himself that the

land once held by Smt. Kaushalaya Devi got subdivided

between him and his brother, i.e. defendant. The jointness of

entire land at one point of time by itself would not give any

right to plaintiff to claim passage from precincts of common

.

land, once held by Smt. Kaushalaya Devi. Admittedly, the

suit passage crosses through that portion of the land which

has fallen to the share of the defendant. To succeed in

claiming right over other's land, one has to prove right either

by way of easement or grant. Easement by way of necessity

has rightly been denied in the facts and circumstances of the

case. The right over suit passage by way of grant is not the

claim of plaintiff.

18. Learned counsel for the appellant-plaintiff has

not been able to point out any evidence which may be taken

into consideration to adjudge the findings of facts recorded

by learned Courts below to be either illegal or perverse. The

only reference has been made to the statement of DW-Madan

Kumar, who in his cross-examination has admitted a

suggestion that the alternative passage is only one feet wide.

The statement so made by one of defendant's witness cannot

be held sufficient to override the overwhelming documentary

evidence on record.

18. In result, the substantial question of law, as

noticed above, is answered in negative. Accordingly, the

appeal is held to be without any merit and is dismissed with

.

no order as to costs. Decree shall be prepared accordingly.

Pending miscellaneous application(s), if any, also

to stand disposed of.

                                                 (Satyen Vaidya)





    25th August, 2024                                 Judge
          (Pardeep)