Karam Singh vs Bhag Singh and Others

Kuldip Singh, J.—This appeal has been directed against judgment, decree dated 26.2.2011 passed by learned District Judge, Bilaspur in Civil Appeal No. 34 of 2009 affirming judgment, decree dated 20.6.2009 passed by learned Civil Judge ( Jr. Division), Court No. 2, Ghumarwin, District, Bilaspur, H.P.

The Appellant had filed a suit for declaration, permanent prohibitory injunction that he has acquired the right over passage by way of easement of prescription or necessity or custom on the land measuring 5.2. bighas, comprised in khasra No. 137, abadi deh situated in village Nalti, Pargna Sariun, Tehsil Ghumarwin, District Bilspur.

The Respondents had contested the suit and denied the claim of the Appellant. The learned Civil Judge (Jr. Division) dismissed the suit on 20.6.2009 and learned lower appellate Court has dismissed the appeal of the Appellant on 26.2.2011, hence second appeal.

In the plaint, the Appellant has prayed for declaration to the effect that he has got the right by way of easement to use the path through land measuring 5.2 bighas by way of prescription or necessity or custom. The Appellant has not identified the passage by way of tatima over land measuring 5.2. bighas. This apart, the Appellant has appeared as his own witness and in his statement he has stated that he and his family were using the passage which leads to his house by the side of the house of the Respondents. In his statement he has again not identified the passage of which he sought declaration and injunction. In his statement he has not stated acquiring of easement by way of prescription or necessity or custom over the suit land. PW-2 Bhup Singh has stated that the passage for which the Appellant had filed the suit is open on the spot. The Appellant has not led any evidence for acquiring right over the passage by way of easement of prescription or necessity or custom.

The two Courts below have rightly appreciated the material on record. The Appellant has not pointed out that material evidence has been ignored by the two Courts below. No. substantial question of law is involved in the appeal. Accordingly, appeal is dismissed with No. order as to costs. CMP No. 288 of 2011 is also disposed of in view of disposal of main appeal.