RSA/286/2019 on 3 August 2026

(1) Whether the plaintiff is entitled for decree of permanent prohibitory injunction against the defendants, as prayed for ? OPP

(2) Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP

(3) Whether the suit is not maintainable in the present form? OPD

(4) Whether the plaintiff has no locus-standi to file the present suit? OPD

(5) Whether the defendants are entitled for special costs under Section 35-A C.P.C.? OPD

(6) Whether the plaintiff is estopped by his act, conduct and acquiescence to file the present suit? OPD

(7) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD

(8) Whether the suit is bad for mis-joinder of the necessary parties? OPD

(9) Relief.

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10. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 24th April, 2014 dismissed the suit as filed by the plaintiff Karam Chand.

11. Feeling dissatisfied, plaintiff preferred an appeal in the Court of learned District Judge, Kangra on 16th June, 2014. Learned First Appellate Court vide its impugned judgment and decree dated 4th January, 2018 dismissed the appeal as instituted by the plaintiff.

Still feeling dissatisfied, the plaintiff has approached this Court by filing the instant Regular Second Appeal invoking the provisions of Section 100 of the CPC.

13. It is contended by Mr. Bhupinder Singh Ahuja, learned counsel for the appellant that the impugned judgments and decrees as passed by learned Courts below are erroneous and liable to be quashed and set aside. He submits that the plaintiff has been able to establish that there is a passage over the suit land comprised in Khasra No 159 and the defendants are trying to obstruct and raise the construction over the path in order to prejudice the rights of the plaintiff. He further submitted that after

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accepting the present appeal, the suit as filed by the plaintiff deserves to be decreed.

14. On the other hand, Mr. S.D.Vasudeva, learned counsel for the respondents has defended the impugned judgments and decrees as passed by the learned Courts below. He submits that while exercising the power under Section 100 of the CPC, this court will not interfere in the well-reasoned judgments and decrees, that too, while dealing with the case where there are concurrent findings of the fact. He submits that both the Courts below have rightly appreciated the oral as well as documentary evidence placed on record, and since the plaintiff has failed to plead and prove any kind of interference over the suit land, therefore, in natural consequence, the suit of the plaintiff ought to have been dismissed. Therefore, the findings as returned by the learned Courts below are legal, valid, and sustainable in the eyes of law.

15. I have heard the learned counsel for the parties and gone through the case file.

16. This Court had admitted the present appeal on 24th July 2019, on the following substantial questions of law:

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(i) Whether the Ld courts below have misread and mis- appreciated Exhibit D1 the order passed by the SDM which has vitiated the findings?

(ii) Whether in view of admission of the defendants qua the existence of passage on the suit land & the findings of the courts below on this effect, the suit of the appellant qua permanent prohibitory injunction should have been decreed?

17. As per the case set up by the plaintiff, the land comprised in Khata No. 232 min, Khatauni No. 364 min, Khasra No. 159, land measuring 0.01.20 hectares is situated at Mohal Kuther, Mauza Ladwara, Tehsil Shahpur, District Kangra, H.P. and it has been recorded in the column of ownership and possession as Abadi Deh. Adjoining land to the suit land is that of plaintiff, alongwith other co-sharers, comprised in Khata No. 200, Khatauni No. 321, Khasra No. 159/1, land measuring 0.00.42 hectares.

18. As per the plaintiff, his land is in Khasra No. 159/1 adjacent to the land situated in Khasra No. 159, and the same has a passage over the suit land and he has been exercising the said right of passage for the last more than 100 years from the time of his ancestors. The said passage has been shown 4 metres in the Musabi. As per plaintiff, the defendants have no right to block the passage and they cannot restrain the plaintiff

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from exercising his right over the said passage. According to plaintiff, the defendants have started raising construction over Khasra No. 159 by erecting barbed wire and are proclaiming that they will not permit the plaintiff and his family members from passing through the said passage.

19. The defendants have put forward a defense, whereby though it has been admitted that there is a passage over the suit land, however, all the other averments with respect to the interference have been specifically refuted and denied. It has been stated by the defendants that no obstruction, interference, or construction was made by the defendants and all the allegations of interference are false, incorrect, and imaginary.

20. In order to substantiate his case, plaintiff examined himself as PW-1. In his deposition by way of his affidavit Exhibit PW-1/A, he has reiterated all the averments as made in the plaint, and he has stated that over the land bearing Khasra No. 159, there is a passage which is being used by the plaintiff along with other co-sharers. As per the plaintiff, he, along with other co-sharers, has been exercising his right of passage over Khasra No. 159 for the last more than 100 years. The defendants have absolutely no right, title, or interest over the suit

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land and they cannot block the passage and cannot restrain the plaintiff from exercising his right over the passage. As per plaintiff, the defendants have started raising the construction over Khasra No. 159 by erecting barbed wire, and is proclaiming that they will not permit the plaintiff and his family members from passing through the passage.

21. In the cross-examination, PW-1 has admitted that prior to the institution of the present suit, he had filed a case qua the same passage. He stated that the said case was instituted in the year 2007. He admitted that in the suit, he has shown the cause of action one week prior to the filing of the instant suit. He admitted that in 2005, he had filed a similar suit in the office of SDM. He admitted that the said case was dismissed by the SDM on 25th of August, 2006. He admitted that there also he had filed the same case and had alleged that the defendants have constructed a 'Tapri' over the same. He admitted that the 'Tapri' was constructed after the demarcation of the suit land. He stated that he does not remember that the defendants had raised the construction of 'Tapri' in 2002. He denied that he has filed a false suit against the defendants.

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22. Plaintiff examined, Sh. Rai Singh as PW2 in order to corroborate his case, who filed his affidavit Exhibit PW-2/A. In his deposition /affidavit, he has stated that adjoining to the suit land bearing Khasra No. 159, there is a land of plaintiff along with other co-sharers bearing Khasra No. 159/1, land measuring 0.00.42 hectares, situated at Mohal Kuther. He stated that over Khasra No. 159, the plaintiff is exercising the right of passage for the last many years, i.e., from the time of his ancestors. He submitted that defendant started raising construction over Khasra No. 159 by erecting barbed wire, and they are proclaiming that they will not permit the plaintiff and his family members from passing through the said passage.

23. PW-2 was not cross-examined by the defendants.

24. PW-3 Prem Chand filed his affidavit Exhibit PW-3/A and he stated on the same line as was done by PW-1 and PW-

2. He stated that adjoining to the suit land bearing Khasra No. 159, there is land of plaintiff alongwith with other co-sharers comprised in Khata No. 200, Khatauni No. 321, Khasra No. 159/1, land measuring 0.00.42 hectares, situated at Mohal Kuther, Mauza Ladwara, Tehsil Shahpur, District Kangra, HP. He stated that the defendants have started raising the

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construction over the suit land bearing Khasra No. 159, over which the plaintiff is exercising his right over this passage and this act of the defendants is illegal and wrong. Though, the plaintiff requested the defendants not to obstruct the passage by raising any construction, however, the defendants refused to accede to the request of the plaintiff.

25. In the cross-examination, he stated that he had only appended his signatures over Exhibit PW-3/A. He admitted that he does not know what has been written in the said affidavit. He stated that he is illiterate and he does not know English. He stated that when his signature were obtained on the affidavit, the counsel did not inquire about his address. He stated that Karam Chand is his real brother-in-law. PW-3 admitted that for the last 24-25 years, he is residing at Village Sihun and he further admitted that the distance between Village Dodhamb and Sihun is more than 20 kilometers. He admitted that he does not know that in Exhibit PW-3/A which land has been mentioned. He stated that he does not know what has been written/incorporated in Exhibit PW-3/A.

26. DW-1 is the statement of Bhim Sen, defendant. He filed his affidavit Exhibit DW-1/A and reiterated all the averments

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as made in the written statement. In the affidavit, he has stated that the suit which has been filed by the plaintiff is totally false and incorrect. He stated that the defendants did not obstruct any passage of the plaintiff, nor they made any encroachment over the passage. He stated that the passage for which the plaintiff had filed the suit goes further to the houses of other residents, and the name of those persons are Shanti Devi and Balbir. He stated that he himself uses the said passage in order to go to their houses. He stated that it is wrong that he, along with the other residents of the area, does not have any right to use the said passage. He stated that the plaintiff has not placed on record any site plan, nor he has got demarcated the suit land. The defendant had filed a complaint before the Sub-Divisional Magistrate, Dharamshala, which was filed on 21st January, 2004, and which was dismissed on 25th April, 2006. He stated that after the dismissal of this complaint, immediately plaintiff filed the instant suit. He further stated that no interference of any kind is being made by the defendants over the suit land.

27. In the cross-examination, DW-1, Bhim Sen, admitted that the suit land is consisting of Khasra No. 159. He also admitted that there is a passage over Khasra No.159. He further

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admitted that the width of the said passage is 4 meters. He denied that he, along with other defendants, had erected barbed wires over the suit land. He denied that the said passage was never used by the defendants. He denied that the defendants are forcibly trying to interfere in the peaceful ownership and possession of the plaintiff.

28. DW-2 is the statement of Vijay Kumar. He brought the record from the DC Office, Dharamshala, in case titled as Sant Ram versus Bhim Sen.

29. DW-3 is the statement of Prakash Chand, and he filed an affidavit Exhibit DW-3/A. In his deposition, he has stated that he knew both the parties. He stated that the passage is existing over the suit land and the same goes to the house of Balbir and Shanti Devi. He stated that this passage is being used by all the stakeholders/villagers. He stated that over the passage, Bhim Sen, defendant, has not constructed any ‘Tapri’, whereas plaintiff Karam Chand had erected the house over the suit land.

30. In his cross-examination, he stated that he does not know that suit land comprised of Khasra No. 159. He admitted that over Khasra No. 159, the defendants have got no right, title, or interest. He stated that one passage is existing over Khasra

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No. 159. He denied the suggestion that Bhim Sen had erected barbed wires over Khasra No. 159, and that he had carried encroachment over the same. He stated that this house goes not only to the house of Bhim Sen, but also to the houses of Balbir and Shanti Devi. The copy of the Jamabandi Exhibit PX has been placed on record, which reveals that Khasra No. 159 is an entry of Abadi Deh.

31. The plaintiff had filed the suit primarily on two grounds: firstly, alleging that there is a passage over Khasra No. 159; and secondly, that the defendants are trying to raise construction and are interfering over the same in order to prejudice the rights of the plaintiff. As far as the plea of existence of passage is concerned, the said fact has been duly admitted by the defendants in written statement as well as in his statement, whereby it has been categorically admitted that though passage exists over the suit land bearing Khasra No. 159, however, the same is being used by the plaintiff, defendant, and all other co- sharers of the vicinity.

32. There is no denial for the existence of passage, and the same stands admitted by the defendants. As far as the allegation as levelled by the plaintiff that the defendants are

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interfering and trying to raise construction over the suit land, is concerned, except the bald statement of the plaintiff, there is no other evidence placed on record to substantiate or corroborate the said version.

33. In order to justify the allegations as levelled in the plaint, neither any demarcation report has been placed on record, nor any document has been placed which may demonstrate or show that there is any kind of encroachment on on behalf of the defendants over the suit land bearing Khasra No. 159. The plaintiff has approached the Court alleging the interference on the part of the defendants.

34. It is well-settled principle of law that a person who alleges has to prove his case. In the present case, though a plea of interference by the defendants has been taken but as rightly held by the learned Courts below, the plaintiff has failed to establish any kind of interference.

35. It has come on record, especially in the oral evidence of the parties, that a passage is existing over Khasra No. 159, which is being used by the plaintiff along with the defendants and other co-sharers, including one Smt. Shanti Devi and Balbir. However, interestingly, neither Smt. Shanti Devi nor Balbir has

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been examined in order to show that there is any kind of interference on the part of the defendants. No other co-sharer has been examined by the plaintiff to establish the plea of interference or raising of any kind of construction. PW-3, who was examined by the plaintiff, has admitted in his cross- examination that his house is situated about 25-30 kilometers away from the suit land.

36. As rightly pointed out by the learned courts below, the best persons, who could have strengthened the allegation of the plaintiff, were Balbir and Smt. Shanti Devi, who are the other co- sharers and are using the passage over the suit land. But in the absence of their depositions or statements, the plaintiff has failed to prove his case.

37. Even otherwise, the findings which have been returned by the learned Courts below are purely findings of fact, which cannot be interfered while exercising the power under Section 100 of the CPC. It has come on record that prior to the institution of the suit, the plaintiff had instituted a complaint before the SDM Dharamshala, and the same came to be dismissed by the said authority. Immediately, after the dismissal of the same, the suit was instituted by the plaintiff.

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38. In the plaint, it has been averred by the plaintiff that cause of action arose to the plaintiff one week prior to the institution of the present suit. In case that was the position, then in the considered opinion of this Court, the actual cause of action arose to the plaintiff when the complaint as filed by the plaintiff before the SDM Dharamshala came to be dismissed.

39. Therefore, as rightly pointed out by the learned Courts below, the plaintiff has not been able to establish and prove either interference or raising any kind of construction over the suit land by the defendants.

40. The learned Courts below have rightly thrashed the entire oral as well as documentary evidence placed on record, which, in the considered opinion of the Court, is legal, valid, and sustainable in the eyes of law.

41. The Hon’ble Supreme Court while dealing with the scope of interference under Section 100 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

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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

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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.”

42. 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

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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.A2) 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 fulfill his obligation and accept performance when the time for performance arrives.”

43. Consequently, in view of the concurrent findings, this Court does not find any illegality, perversity in the same. No other point urged by the learned counsel for the parties. The substantial questions of law are answered accordingly.

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44. In view of the above, the present appeal, being devoid of any merit, deserves to be dismissed and is accordingly dismissed.

Pending application(s), if any, also stands disposed of. (Romesh Verma) Judge

August 3, 2026 (Nisha)