Himachal Pradesh High Court
Krishan Chand And Others vs Roop Lal (Deceased) Through Lrs on 14 May, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Date of Decision: 14 th May, 2025.
Krishan Chand and others
.....Appellants.
Versus
Roop Lal (deceased) through LRs .....Respondents.
Coram
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Appellants: Mr. Vivek Sharma Advocate.
For the Respondents: Mr. Neel Kamal Sharma, Advocate.
Bipin Chander Negi, Judge (oral).
The appellant, by filing this appeal under section 100 of the
Code of Civil Procedure (for short, CPC), has assailed the judgment
and decree dated 23.07.2011 passed by the learned Additional
District Judge, Mandi in Civil Appeal No. 28 of 2007 arising out of
the judgment and decree dated 22.2.2007 passed by the learned
Civil Judge, Sr. Division, Sarkaghat District Mandi in Civil Suit No.
243 of
2. The plaintiff had filed a civil suit before the Ld. Trial Court
seeking a permanent prohibitory injunction to restrain the
defendants from digging the suit land, using it as a path, projecting
the eaves of their proposed house, or discharging water from their
proposed house onto the suit land. The plaintiff also sought a
Whether reporters of Local Papers may be allowed to see the judgment? YES
mandatory injunction directing the defendants to demolish any
construction and restore the suit land to its original position if they
succeeded in raising any construction during the pendency of the
suit. It was pleaded that the suit land was recorded in the names of
Om Prakash, Vidya Devi, and Ranjeet, and the plaintiff was
recorded as being in possession as owner. The defendants, who
were strangers to the suit land, were raising construction in Khasra
No. 893/306 and had allegedly dug a portion of the suit land,
damaging its boundaries. They were also threatening to extend their
construction towards the suit land and discharge water onto it.
Despite requests, they persisted, leading to the filing of the suit.
3. The defendants contested the suit by filing a written
statement, raising preliminary objections regarding maintainability,
lack of cause of action, non-joinder of necessary parties, and
incorrect mention of their village. On merits, they denied the
plaintiff's ownership and possession of the suit land, asserting that
the plaintiff had no right to file the suit. They referred to an
application moved by the plaintiff's sons before the Ld. Assistant
Collector Grade-15, Sarkaghat, for correction of revenue entries,
wherein the plaintiff had allegedly admitted that he was not in
possession of the suit land. The defendants claimed that they were
constructing on their own land and that a public path existed over
the suit land, which had been used by them and the public since
time immemorial. They further alleged that the plaintiff and his son
had executed an agreement to sell a portion of the suit land (one
biswas) to the defendants for Rs. 10,000/- as advance, with
possession already delivered, thereby divesting the plaintiff of any
rights over the land.
4. The plaintiff filed a replication denying the contents of the
written statement and reiterating the plaint's averments. The Ld.
Trial Court framed the following issues on 04.12.2004:
1. Whether the plaintiff, being the owner in
possession of the suit land, is entitled to the
relief of permanent prohibitory injunction, as
prayed for? OPP.
2. Whether there exists a public path through
Khasra No. 187 (suit land) since time
immemorial, as alleged? OPD.
3. Whether the suit of the plaintiff is not
maintainable? OPD.
4. Whether the suit of the plaintiff is bad for non-
joinder and mis-joinder of necessary parties?
OPD.
5. Whether the village of the defendants has
wrongly been mentioned as Kher, but the
defendants are residing at village Lower Barot?
6. Relief..
5. The parties led their respective evidence, with the plaintiff
examining himself as PW-1, Krishn Devi as PW-2, and Dinesh
Kamal as PW-3. The defendants examined Krishan Chand
(Defendant No. 1) as DW-1, Khayali Ram as DW-2, Kanwar Singh
as DW-3, and Tulsi Ram as DW-4.
6. The Ld. Trial Court held that the plaintiff had successfully
proved his ownership and possession of the suit land, while the
defendants failed to establish the existence of a public path over the
suit land used since time immemorial. Consequently, the suit was
decreed in favor of the plaintiff. Aggrieved by this judgment, the
defendants preferred the present appeal, contending that the Ld.
Trial Court had misappreciated the evidence, particularly the
admission of witnesses regarding the existence of the path and the
spot map. They argued that their construction over the suit land was
duly proved and that the injunction was unjustified. An application
under Order XLI Rule 27 CPC was also filed by the appellants to
produce the agreement dated 17.11.2003.
7. After hearing, Ld. Counsel for the appellants, and Ld.
Counsel for the respondent, this Court considered the submissions.
The appellants argued that the Ld. Trial Court erred in its
appreciation of evidence, particularly regarding the existence of the
path, and sought the setting aside of the judgment. The respondent,
however, supported the judgment, contending that no interference
was warranted.
8. Upon consideration of the material on record and the
arguments advanced, the first appellate court dismissed the appeal,
leading to the filing of the present second appeal.
9. The plaintiff never pleaded that he was the owner of the
suit land but instead claimed to be in possession as a non-
occupancy tenant. The copy of the Jamabandi for the year 2000-
2001 corroborates this claim, showing the plaintiff recorded as a
non-occupancy tenant, and this document carries a presumption of
correctness. DW-1 Krishan Chand, in his examination-in-chief,
admitted that the land bearing Khasra No. 187 belonged to the
plaintiff. This indicates that the defendants did not dispute the
plaintiff's connection to the suit land. Furthermore, the defendants
themselves admitted the plaintiff's title by asserting that they had
purchased the land from the plaintiff and his sons. This plea itself
demonstrates an acknowledgment of the plaintiff's rights over the
land, as there would have been no necessity to claim such a
transaction if the plaintiff had no title.
10. The plaintiff's assertion of possession was duly supported
by the jamabandi and his witnesses. The defendants led no
evidence to disprove the plaintiff's possession. It is undisputed that
the defendants were constructing on adjacent land, and in such
circumstances, the plaintiff's apprehension of interference with the
suit land cannot be dismissed as baseless. Such apprehension is
sufficient grounds to seek an injunction from the court. Moreover,
DW-1 Krishan Chand admitted in cross-examination that he
transported construction material over the suit land, which
establishes that the defendants were indeed interfering with it. Since
a person in lawful possession is entitled to protect his possession,
the plaintiff was justified in seeking injunctive relief.
11. Thus, the courts below correctly and concurrently held that
the plaintiff was entitled to the injunction, and no fault can be found
with their judgments.
12. In the aforesaid facts and attending circumstances, there
arises no question of law, much-less a substantial question of law
for consideration of the Court, therefore, the appeal is dismissed
being devoid of any merit. Pending miscellaneous applications, if
any, also stand disposed of.
(Bipin Chander Negi)
Judge
14th May, 2025
(Tarun/T.B)
