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The Himachal Pradesh High Court has dismissed a claim seeking recognition of a prescriptive right of way, holding that an easementary right by prescription cannot be established unless the alleged passage is specifically pleaded and clearly identified.

The Court noted that the plaintiff had failed to sufficiently establish the pathway through the defendants' land, with the pleadings and evidence lacking clarity regarding the passage.

Justice Rakesh Kainthla observed:“In the absence of requisite pleadings as to the acquisition of easementary right of passage by way of prescription and in the absence of specific identification of the passage, the learned First Appellate Court has rightly held that the plaintiffs have not acquired a right of easement of passage through the land in dispute.” 

Background:

The plaintiff, Tara Chand, filed a suit seeking a declaration of his right to use a pathway passing through the defendants' land, claiming that he and his ancestors had been using it uninterruptedly for more than 20 years and had acquired a prescriptive easementary right. He also sought an injunction restraining the defendants from blocking the pathway by raising construction. 

The Trial Court decreed the suit, holding that the plaintiff had established use of the path for 20–25 years. However, the First Appellate Court reversed the decree, finding that the alleged pathway was not reflected in the revenue record and that the plaintiff had failed to properly establish the passage. 

Aggrieved, the plaintiff approached the Himachal Pradesh High Court in a regular second appeal challenging the reversal of the Trial Court's decree. 

The High Court held that the plaintiff failed to specifically plead and prove the alleged pathway. The pleadings did not clearly identify the points of ingress and egress, while the plaintiff's own witnesses admitted the existence of a common path adjoining the land. 

The Court also found that the tatima could not be relied upon as its maker had died and the witness produced by the plaintiff was unaware of the spot position. Further, the alleged pathway was absent from the revenue record despite a recent settlement. 

The Court therefore upheld the First Appellate Court's decision reversing the Trial Court's decree. It also held that under Order XLI Rules 4 and 33 CPC, the Appellate Court could reverse the decree even though one of the defendants had not filed an appeal. The second appeal was consequently dismissed.

Case Name: Tara Chand v/s Devinder

Case No.: RSA No.590 of 2008

Date of Decision: 01.09.2026

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