RSA/244/2024 on 6 October 2026

2026:HHC:45452 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 244/2024

Decided on: 06.10.2026

The Mandi Urban Cooperative Bank Ltd. ..…Appellant

Versus

Daya Devi

…..Respondent

Coram

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

For the appellant: Mr. R. S. Gautam & Ms. Dhanvanti

Devi, Advocates.

For the respondent: Dr. Sahil Malhotra, Advocate.

Romesh Verma, Judge (oral)

The present appeal arises out of the judgment and decree, dated 01.05.2024, as passed by the learned District Judge, Mandi, H.P. whereby the appeal preferred by the plaintiff/appellant has been dismissed and the judgment and decree, dated 31.10.2023, dismissing the suit of the plaintiff/appellant, as passed by the learned Civil Judge Court No.1, Mandi, H.P. have been affirmed.

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

The facts, as emerge in the instant case, are that plaintiff/appellant filed a suit for possession before the learned trial court on the premise that the plaintiff is owner in possession of land comprised in Khata Khatauni No. 343/391, Khasra No. 1114/1088/678, Kita-1, measuring 108.01 sq. mts., situated at Mauja Samkhetar, Muhal Khalyar, H.B. No. 366/2, Tehsil Sadar, District Mandi, H.P. As per the case, as set up by the plaintiff, adjacent to the land of the plaintiff, the defendant is having her land and house in Khata Khatauni No. 210/231, Khasra No. 1114/ 1088/678, Kita-1, measuring 360 square meters. The plaintiff in order to fence its land, in June 2011, applied for demarcation to the revenue officer, i.e. Tehsildar Sadar, who demarcated the suit land in January 2012, and it was found in the said demarcation that the defendant after encroaching upon a part of the suit land has not only occupied, but also raised construction on 22.50 square meters of the land of the plaintiff, which has been depicted as Khasra No. 1114/1088/ 678/1 in the spot map issued by the revenue agency.

In the plaint, as per the plaintiff, even earlier when the plaintiff went to the spot in order to fence the land, there was no encroachment, though the defendant had objected for the fencing and thereafter, after having the demarcation, it was found that the defendant has encroached over the suit land. Therefore, under such circumstances, the plaintiff filed suit for vacant possession of the suit land after removing the structure and encroachment/occupation made thereon, and to hand over the same to the plaintiff.

The aforesaid suit was resisted by the defendant by filing written statement, wherein she raised preliminary objections with respect to maintainability, cause of action, valuation, limitation, etc. On merits, all the averments as made in the plaint were specifically denied. It was contended that the suit land was purchased by the defendant in the year 1974, and thereafter she constructed her house thereon. As per defendant, the plaintiff had purchased the land in suit in the year 1996, qua which mutation No. 658 was attested on 28.07.1997. The allegation of encroachment was vehemently denied by the defendant. It was contended that the defendant has not encroached upon any portion of the suit land, and the allegations as levelled in the plaint are false and incorrect, and, thus, the suit is liable to be dismissed.

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

On the pleadings of the parties, the learned trial court on 26.05.2014 framed the following issues:- “1. Whether the plaintiff is entitled for the vacant possession after removing the construction being raised by the defendant qua the suit land, as alleged? OPP

2. Whether the suit of the plaintiff is not maintainable, as alleged? OPD

3. Whether the suit is not maintainable for want of Court fees and jurisdiction, as alleged? OPD

4. Whether the suit of the plaintiff is barred by limitation, as alleged? OPD

5. Whether no cause of action has accrued to the plaintiff, as alleged? OPD

6. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of the necessary parties, as alleged? OPD

7. 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 31.10.2023 dismissed the suit of the plaintiff.

Feeling aggrieved by the judgment and decree, dated 31.10.2023, the plaintiff/appellant preferred an appeal before the learned first appellate Court which too came to be dismissed vide judgment and decree dated 01.05.2024.

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 instant appeal is taken up for disposal on the following substantial question of law:- Whether the impugned judgments and decrees passed by the learned Courts below are the result of misreading, misinterpretation as well as misconstruing the oral and documentary evidence placed on record by the parties?

It is contended by R. S. Gautam, learned counsel 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, as a result of which, great prejudice has been caused to the appellant, though there is material evidence placed on record in order to substantiate that the defendant has encroached over the suit land. Therefore the plaintiff is entitled for grant of decree of vacant possession against the defendant. 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, Dr. Sahil Malhotra, learned counsel for the defendant/respondent, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that the courts below have concurrently come to the conclusion that there is no encroachment of any kind on the part of the defendant over the suit land, and the allegations as levelled are false, incorrect, and imaginary, and no reliance can be placed upon the same. 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/appellant filed a suit for vacant possession against the defendant/respondent on the ground that the plaintiff-bank is owner in possession of the suit land comprised in Khata Khatauni No. 343/391, Khasra Nos.1114/1088/678, Kita 1, measuring 108.01 square meters, situated in Mauja, Samkhetar, Muhal Khalyar, Tehsil Sadar, District Mandi, HP. It is case of the plaintiff that the land of the defendant is adjacent to the suit land comprised in Khata Khatauni No.210/231, Khasra No. 1110/1088/678, Kitta 1, measuring 360 square meters. The plaintiff in order to fence its land in June 2011, applied for demarcation to the revenue officer, who demarcated the suit land in January 2012 and it was found in the said demarcation that the defendant, after encroaching upon a part of the suit land, has not only occupied, but also raised construction on 22.50 square meters of the land of the plaintiff, which has been depicted as Khasra No. 1114/1088/ 678/1 in the spot map issued by the revenue agency. Though the defendant had objected for the fencing, after having the demarcation, it was found that the defendant has encroached over the suit land. Therefore, it is the case of the plaintiff that since the defendant has illegally encroached upon the suit land, therefore the decree for vacant possession be passed in its favour by removing the structure encroachment/occupation made thereon, and to hand over the same to the plaintiff.

On the other hand, the defendant has refuted the said allegations in its entirety. It is the case of defendant that she has purchased the suit land in the year 1974, and thereafter she has raised the construction without any protest from any quarter. The plaintiff has purchased the land subsequently, i.e. in the year 1996. The allegation of encroachment has been denied, and it has been stated that the said allegation is false, incorrect, and imaginary.

In order to substantiate its case, the plaintiff-bank examined PW1 Suresh Chander Pal, who has filed his affidavit, Ext. PW1/A. In his deposition, he stated that he is presently working as a Manager-cum-Secretary of the Mandi Urban Cooperative Bank. He reiterated the averments as made in the plaint. He stated that the plaintiff- bank is the owner in possession of the land bearing Khasra Nos.1114/1088/ 678, Kitta 1, measuring 108.01 square meters, situated in Mauja Samkhetar, Mohal Khadyar, Tehsil Sadar District Mandi HP. He further stated that in the demarcation, which was got obtained by the plaintiff, it was found that the defendant had encroached upon part of the

suit land, which is illegal and liable to be removed. Though the plaintiff-Bank requested the defendant to remove the illegal and unauthorized construction and occupation over the suit land, however the defendant refused to do so. PW-1 proved on record copies of jamabandi, Ext. PW1/E, Ext. PW1/F, application for demarcation Mark Z and complaint Ext.PW1/G.

In his cross examination, he stated that demarcation, vide Ext.PW1/M and Ext. PW1/N though was carried out by the revenue officials, but he could not tell the exact date and time of the same. He denied that the demarcation report was obtained by the plaintiff-Bank in connivance with officials of the Revenue Department. He denied that he is deposing falsely since he is the employee of the Bank.

PW-2, Mahesh Kumar, stated that he has been working in the Municipal Council Mandi for the last 25 years. He brought the requisitioned record and proved notices, Ext. PW2/A and Ext. PW2/B.

PW3 Bhikham Ram, Record Keeper, D.C. office Mandi, also brought the requisitioned record.

PW4 Krishan Chand, deposed that he was working as a Kanungo, Sadar Mandi, at the relevant time. He proved on record application for demarcation, Ext. PW4/A, statement, Ext. PW4/B, spot tatima, Ext. PW4/C and demarcation report, Ext. PW4/D.

PW5 Mordhwaj, who was working as Patwari, Patwar Circle Padal, Mandi at the relevant time, stated that spot tatima, Ext. PW-4 / C was prepared by him.

PW6 Hemant Kapoor, who was serving as Clerk in the plaintiff-Bank at the relevant time, filed his affidavit Ext.PW6/A, wherein he reiterated all the averments as made in the plaint, and deposed on the same lines as has been deposed by PW1 Suresh Chander Pal.

In order to rebut the case of the plaintiff, the defendant examined DW1 Hem Prakash Vaidya, who filed his affidavit Ext. DW1/A. In his deposition, he , stated that he is the special power of attorney of the defendant, being his wife, and is fully conversant with the facts of the case. As per this witness, the defendant is having land comprised in Khasra No. 1110/1088/678, measuring 360.00 square meters, upon which residential house exists since the year 1974, while the remaining land is vacant. He stated that the defendant had not made any sort of encroachment upon any part of the suit land in any manner. In his cross examination, plaintiff-Bank could not extract anything favourable from him in its favour.

DW2, Bhikham Ram, who was Record Keeper of the plaintiff-Bank at the relevant time, brought the requisitioned record.

DW3, Daya Vaidya, deposed that she had purchased the suit land from one Parvati Devi in the year 1974, and after the purchase of the same, the boundary wall was erected over the same, and thereafter she raised the construction of her house in the year 1976-77. She stated that she has not encroached over the land of the plaintiff- Bank in any manner. As per DW3, the plaintiff had purchased the suit land in the year 1996.

DW4 Mahender Lal was working as Registration Clerk in Tehsil Sadar, Mandi, at the relevant time and he brought the requisitioned record.

DW5 Mahesh Kapoor stated that he is the adjacent neighbour of the defendant, and the land of the plaintiff and defendant is adjoining to his land. He stated that in his presence plaintiff never got demarcated the suit land, and the land of the plaintiff is vacant on the spot. He further stated that the defendant has not encroached upon any portion of the suit land, as the defendant has raised the construction of first story in the year 1976, and thereafter second story in the year 1986-87.

Ext. PW-1/ E is the copy of jamabandi with respect to the suit land comprised in Khasra No. 1114/1088/678, wherein the plaintiff-Bank has been shown as owner in the column of ownership. Exhibit PW-1/F is the copy of jamabandi for the year 2007-08 pertaining to land comprised in Khasra No.1110/1088/678, which is owned by the present defendant.

As far as the demarcation, on which the plaintiff- Bank has placed reliance, has got no relevance in the present case, as during the pendency of the suit, the Local Commissioner, as appointed by the learned trial Court, has placed on record his report as Ext. CX-1, which clearly clinches the entire controversy inter se the parties. As per the case, as set up by the plaintiff-Bank, it is owner of land measuring 108.01 square meters situated in Mauja Samkhetar, and as per the allegation, the defendant has encroached over the suit land. Perusal of the report Ext. CX-1 clearly reveals that the area of the present plaintiff has increased from 108.01 square meters to 154.86 square meters, whereas the land of the defendant has been reduced from 360 square meters to 344.30 square meters. The fact of encroachment has been falsified on the strength of the report of the Local Commissioner. The learned courts below have concurrently come to the conclusion that Ext. CX-1 clearly demonstrates that it is not the defendant, rather the area of land of the plaintiff has increased, and the plaintiff has failed to establish and show as to under what circumstances its land has been increased.

The report of the Local Commissioner was objected by the plaintiff-Bank by filing objections, which came to be rejected by the learned trial court on 05.07.2023 and resultantly, accepted the demarcation report dated 29.09.2021. It is a matter of record that against the acceptance of the demarcation and the rejection of the objections, none of the parties has assailed the said order.

The court has gone through the report of the Local Commissioner Ext. CX-1, whereby all the procedures, as envisaged in the Rules, as framed by the Financial Commissioner, State of Himachal Pradesh and this Court have been duly complied with. All the procedural formalities, as required, have been taken into consideration by the Local Commissioner, and this Court does not find any infirmity in the same.

Once the Local Commissioner has categorically held that the land of the plaintiff has been increased from 108 to 154.86 square meters, therefore the case of the plaintiff is belied in totality. Though the plaintiff has tried to prove its case on the strength of the demarcation report which was taken by it in the year 2011, however it has got no sanctity or relevance in view of demarcation report, dated, 29.09.2021, Ext. CX-1, of the Local Commissioner, who was appointed by the learned trial court for the demarcation of the suit land. The learned Courts below have rightly and concurrently come to the conclusion that the plaintiff has failed to establish and prove the plea of encroachment.

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.

06th October, 2026

(Romesh Verma) (pankaj)

Judge