RSA/177/2026 on 14 October 2026

2026:HHC:46267 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 177/2026

Decided on: 14.10.2026

Sher Singh

..…Appellant

Versus

Lal Singh & anr.

…..Respondents

Coram

The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting ?1

For the appellant: Mr. Y. P. Sood, Advocate.

For the respondents: Mr. Jia Lal, Advocate, vice Mr. G. R. Palsra, Advocate for respondent No.1. Respondent No.2 ex parte.

Romesh Verma, Judge (oral)

The present appeal arises out of the judgment and decree, dated 23.04.2026, as passed by the learned District Judge, Mandi H.P. whereby the appeal preferred by the present appellant/plaintiff has been dismissed and the judgment and decree, dated 09.08.2024, dismissing the suit of the plaintiff/appellant, as passed by the learned Civil Judge, Court No.III, Mandi, have been affirmed.

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

The facts, as emerge in the present case, are that the plaintiff/appellant filed the suit for injunction against the defendants/respondents before the learned trial court. As per the averments as made in the plaint, the land comprised in Khata Khatauni No. 63/102, bearing Khasra No. 467 measuring 10-10-19 bighas, situated in Mohal Nasloh, Tehsil Sadar, District Mandi, is recorded in the name of the plaintiff, defendant No.2 and other co-sharers as per jamabandi for the year 2012-2013. The defendants on 21.01.2019 prepared some documents before the Document Writer at Tehsil Office Mandi with respect to the sale and purchase of the suit land ignoring the fact that the partition proceedings with respect to the suit land are still pending before the revenue officials and defendant No. 1 is a stranger having no right, title, or interest over the suit land.

As per the case, as set up by the plaintiff, earlier in the Civil Suit No. 21/2005, decided on 20.09.2007, by the learned Civil Judge, Court No.IV, Mandi, the matter was compromised inter se defendant No.2 and father of the plaintiff regarding the suit land to the effect that the parties will collectively move an application for partition and the same shall be done in accordance with the terms and conditions as incorporated in the compromise deed.

It is the case of plaintiff that in an illegal manner, the defendant No.2 initiated the partition proceedings before the learned Assistant Collector, 1st Grade, Tehsil Sadar District Mandi, in which she suppressed the material facts from the said revenue court that the partition has to be held in accordance with the decree as passed by the learned Civil Court. It is further case of the plaintiff that the aforesaid Collector did not apply judicial mind and failed to obey the decision of the learned Civil Court. The cause of action arose to the plaintiff on 21.01.2019, when the defendants started preparing the documents with respect to the sale and purchase of the suit land, therefore, under such circumstances, the plaintiff filed the suit seeking decree of injunction by restraining the defendants from creating any interference and raising construction over the suit land and also not to dispossess the plaintiff from the suit land in the interest of justice.

The suit, as filed by the plaintiff/appellant, came to be resisted by the defendants/respondents by filing written statement, wherein preliminary objections with respect to the maintainability, cause of action, locus standi, etc. were taken. On merits, all the averments as made in the plaint were specifically refuted and denied. It has been contended in written statement that the suit land has been partitioned by the revenue authorities in accordance with law and mutation No. 609, dated 3.11.2018 stood attested and Khasra No. 467/1 measuring 5-5-9 bighas had been allotted to defendant No. 2, while Khasra No. 567/2 measuring 5-5- 10 bighas had been allotted to the plaintiff and his father. The parties are coming in their respective possession according to the partition proceedings and after attestation of the mutation.

It is the case of the defendants that after partition, defendant No. 2 had sold some land out of her share to defendant No. 1 through registered sale deed No. 103, dated 24.01.2019, as such being the owner in possession of the said land, the purchaser has every right to enjoy and possess the land of his share. It has further been stated that the father of the plaintiff did not act as per the undertaking given by him before the Civil Court, therefore, the defendants were compelled to get the land partitioned and separated by means of the revenue agency. The partition proceedings were duly contested by the plaintiff and his father, who have admitted and accepted the partition effected by the revenue agency, therefore, the plaintiff is estopped to file the instant suit. The defendants prayed for the dismissal of the suit as filed by the plaintiff/appellant.

The plaintiff filed replication to the written statement as filed by the defendants and reiterated all the averments as made in the plaint.

The learned trial court framed the issues in the matter on 10.06.2022 in the following manner:- “1. Whether the plaintiff is entitled to a decree of permanent prohibitory injunction to restrain defendants from causing interference, raising construction and dispossessing plaintiff from the suit land, as prayed for? OPP.

2. Whether the plaintiff has no enforceable cause of action, as alleged? OPD.

3. Whether the plaintiff is estopped to file the present suit by his own act and conduct as alleged? OPD.

4. Whether the suit is not legally instituted and liable to be dismissed as alleged? OPD.

5. Relief.”

The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 09.08.2024 dismissed the suit of the plaintiff.

Feeling aggrieved by the judgment and decree, dated 09.08.2024, the plaintiff/appellant preferred an appeal, before the learned first appellate Court by invoking the provision of section 96 of the CPC, which too came to be dismissed vide judgment and decree dated 23.04.2026.

Still feeling dissatisfied by the aforesaid judgments and decrees, plaintiff/appellant has preferred the present regular second appeal under Section 100 of the CPC.

With the consent of the parties, the case is finally heard at admission stage on the following substantial question of law:- Whether the judgments and decrees passed by the learned Courts below are based on mis- appreciation and misinterpretation of the oral as well as documentary evidence placed on record?

It is contended by Mr. Y. P. Sood, Advocate, appearing for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and thus, liable to be quashed and set aside. He has submitted that the learned Courts below have not appreciated the real point of controversy and have mis- interpreted and mis-construed the oral as well as documentary evidence. He has further submitted that after accepting the instant appeal, the suit, as filed by the plaintiff, deserves to be decreed.

On the other hand, Mr. Jia Lal, learned vice counsel for defendant/respondent No.1, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that the learned Courts below after taking into consideration the entire material placed on record have righty dismissed the suit of the plaintiff/appellant. He has further submitted that this Court, while invoking provisions of Section 100 of CPC, will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, prayed for dismissal of the instant appeal.

I have heard the learned counsel for the parties and have also gone through the material available on record.

In the present case, the plaintiff had approached the learned trial court for the grant of decree of injunction on the ground that the suit land is recorded in the name of plaintiff, defendant No. 2 and other co-sharer as per the copy of jamabandi for the year 2012-2013. As per the plaintiff, the defendants were adamant to prepare some documents for the sale and purchase of the suit land ignoring the fact that the partition proceedings with respect to the suit land are still pending before the revenue officials and defendant No. 1 is a stranger having no right title or interest over the same. As per the case as set up by the plaintiff, the defendants are headstrong persons and they have no regard for the law and under the garb of the partition proceedings, they have started to alienate the suit land in a clandestine manner.

As regards the defendants, they have vehemently opposed the plea of the plaintiff by submitting that the suit land has been finally partitioned by the revenue authorities and the relevant mutation No. 609 dated 03.11.2018 has been attested by the revenue agencies, whereby Khasra No. 467/1 measuring 5-5-9 bighas has been allotted to defendant No.2, whereas Khasra No. 567/2 measuring 5-5-10 bighas has been allotted to the plaintiff and his father.

In order to substantiate his case, the plaintiff entered the witness box as PW1. He has placed on record the copy of the affidavit, Ext.PW1/A, wherein the averments as made in the plaint have been reiterated. In the first line of his cross-examination, PW1 has categorically admitted that Khasra No. 467 has been partitioned on 06.06.2016 and against the same, he had preferred the appeal and revision, which came to be dismissed by the competent authorities. He admitted that as per the partition proceedings, Khasra No. 467/1 was allotted to defendant No.2, Sarla Devi and Khasra number 467/2 was allotted to the plaintiff and his father. He

further admitted that in pursuance to the partition proceedings, the necessary mutation has been attested. He further admitted that by means of family settlement, he has transferred the land in favour of his sons by executing a registered deed.

The admission, as made on the part of the plaintiff as PW1, clinches the entire controversy and demolishes the case of the plaintiff in its totality. In the cross-examination, there is a categorical admission on the part of the plaintiff that the suit land stood partitioned amongst the parties and that the necessary mutation has been attested in the name of the plaintiff and the defendants respectively. Once there is an admission on the part of the plaintiff that the suit land has been partitioned, then the plea which has been raised by the plaintiff that the defendants are trying to prepare some documents in order to alienate the suit land does not hold good as after the partition, the defendants are well within their right to alienate or sell the suit property as per their own choice.

The defendants have placed on record the copy of jamabandi Ext. DW1/B and as per the note reflected therein the suit land has been partitioned amongst the parties.

The oral evidence especially the cross-examination of the plaintiff in conjunction with the documentary evidence placed on record by the defendants clearly establishes that the suit land stood partitioned amongst the parties, therefore, the suit as instituted by the plaintiff by withholding the material facts has rightly been rejected by the learned courts below.

The pleadings as made by the plaintiff/appellant in the plaint are cryptic and deceptive. Though it has been stated in the plaint that the partition proceedings are pending, however, it has not been stated that the necessary mutation on the basis of the partition has been attested in favour of the parties. The appellant could not demonstrate from the record, which may force this court to interfere in the concurrent findings of the courts below.

The Hon’ble Supreme Court in catena of judgments has held that the first appellate court is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 of CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

The Hon’ble Supreme Court while dealing with scope of interference under Section 100 of CPC in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

" 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

20. to 22 xx xx xx xx

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2

were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-

2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

This Court is of the considered opinion that the learned Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record. Thus, there is no illegality or perversity in the impugned judgments and decrees, as concurrently passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly.

No other point was urged by the learned counsel for the parties.

In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of.

14th October, 2026

(Romesh Verma) (pankaj)

Judge