RSA/134/2026 on 30 July 2026

1. Whether the plaintiff is entitled to specific relief of permanent prohibitory injunction, as prayed for? OPP.

2. Whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP.

3. Whether the suit is not maintainable, as alleged? OPD.

4. Whether the plaintiff is estopped by his own act and conduct, as alleged? OPD.

5. Whether the plaintiff has not come to the Court with clean hands, as alleged? OPD.

6. Relief.

The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 6.12.2024 dismissed the suit of the plaintiff.

Feeling dissatisfied by the judgment and decree, dated 6.12.2024, plaintiff/appellant preferred an appeal before the learned first appellate Court on 20.12.2024, which came to be dismissed vide judgment and decree dated 7.4.2026.

Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiff/appellant has preferred the present regular second appeal.

With the consent of the parties, the instant appeal is finally heard at admission stage on the following substantial question of law:- Whether the impugned judgments and decrees passed by both the Courts below are totally perverse to the evidence on record?

It is contended by Mr. Pushpinder K. Verma, learned vice counsel for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned courts below, are not sustainable in the eyes of law and thus, liable to be quashed and set aside. He has submitted that the suit land is joint inter se the parties, therefore, in all eventualities, the suit is liable to be decreed after acceptance of the present regular second appeal.

On the other hand, P. S. Goverdhan, learned senior counsel, assisted by Mr. Rakesh Thakur, Advocate, for the defendant/respondent has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that the record reveals that on the basis of the family arrangement, the parties are occupying respective possession of the suit land and on the strength of their respective possession, they can raise construction as has been done by the defendant over the suit land. 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 the case file.

The plaintiff/appellant had approached the learned trial Court seeking decree for permanent prohibitory injunction on the ground that he along with defendant and other co-sharers is in joint possession of the land comprised in Khewat No. 85/347, Khatoni No.105/404, Khasra No. 508, measuring 02-03-00 Bighas, situated at Mohal Haripur, Patwar Circle Haripur, Kanungo Circle Rajnagar, Tehsil and District Chamba, H.P. It is case of the plaintiff that the suit land is joint, undivided and un- partitioned between the parties and other co-sharers and no final partition has taken place amongst the parties, however, the defendant taking advantage of the absence of the plaintiff started raising construction over the best and valuable portion of the suit land exceeding his share.

On the other hand, defence has been projected by the defendant that the parties are in their separate possession as per family arrangement on the basis of the application for "Taqseem Khangi", which was filed before A.C. 1st Grade, Chamba, on 09.11.2021, wherein it was specifically pleaded that the parties have mutually partitioned their land and are in separate possession as per family arrangement. As per the case of the defendant, on the basis of the "Taqseem Khangi” necessary mutation was attested and accepted. Therefore, the defendant has prayed that all the averments as made in the plaint are false, incorrect and imaginary and on the strength of the family arrangement, the parties are in separate possession over the suit land.

The plaintiff in order to substantiate his case entered the witness box as PW1 and in his examination-in- chief reiterated all the averments as made in the plaint and prayed for decreeing of the suit for permanent prohibitory and mandatory injunction against the defendant. In his cross-examination, the plaintiff admitted that defendant had purchased part of the suit land in the year 1994. He admitted that from the said Khata, he had also purchased 8 Biswas of land in the year 2006. He admitted that application Ext, D1 was filed before the Tehsildar for effecting partition inter se the parties. He admitted that he had appended his signature on the application, Ext. D1. He further admitted that it was incorporated in the application that the parties have effected family arrangement amongst them and they are in their separate possession. He admitted that on the basis of application for Taqseem Khangi, concerned Kanungo and Patwari had reached at the spot and thereafter, possession was delivered to the respective parties. He admitted that possession was handed over to the parties by putting sign marks over the suit land. He admitted that when the defendant started construction on the relevant date, he was present on the spot. He admitted that the RCC pillars were erected after identifying the suit land.

PW2 Dheeraj Kumar tendered in evidence his affidavit, Ext. PW2/A, wherein he stated on the same lines as has been stated by PW1.

In order to rebut the case of the plaintiff, the defendant, Chattar Singh, tendered in evidence his affidavit, Ext. DW1/A, wherein he stated on the same lines as has been stated in the written statement. He stated that on the strength of the family partition, which took place inter se the parties before the Assistant Collector, 1st Grade, Chamba, the parties are in their separate possession of the suit land. He stated that the plaintiff himself had made statement on 11.11.2021 about effecting of the Taqseem Khangi. He stated that after digging the suit land, he erected pillars over the suit land. While carrying out construction, he had spent lacs of rupees over the same. In his cross-examination, the plaintiff could not extract anything favourable from the said witness. Though suggestion was put by the plaintiff that the defendant was raising construction over the best and valuable portion of the suit land, however, such suggestion was emphatically denied by DW1.

DW2 Chandu Lal, also tendered in evidence his affidavit, Ext. DW2/A, wherein he has also stated that the parties had effected family arrangement and thereafter all the co-sharers are occupying suit land separately.

DW3 Rinku Patwari, has stated that he has seen, application, Ext. D1 which was filed by the parties for effecting Taqseem Khangi amongst them.

DW4 Dev Raj, Field Kanungo, in his testimony stated that on the basis of the application, Ext.D1, family arrangement, which was effected between the parties, was brought before the revenue authorities and the parties effected partition and for that purpose, separate statements were also made by the parties. He stated that on the basis of the application, order was passed and necessary mutation was attested qua the same.

It is contended by the learned vice counsel for the appellant that since the suit land is joint amongst the parties, therefore, the respondent/defendant cannot be permitted to raise construction over the best and valuable portion of the suit land until and unless the suit land is partitioned by metes and bounds. He has further submitted that in absence of partition, the defendant/respondent cannot be permitted to raise construction in view of law laid down by the Hon’ble Apex Court as well as this Court.

On the other other hand, it is contended by learned senior counsel for the defendant/respondent that the parties have already effected family arrangement (Khangee Taqseem) amongst them and on the strength of the same, necessary mutation has been attested. It is thereafter that the parties are occupying the suit land independently and separately. Admission, which has been made by the plaintiff in his cross-examination, clinches entire controversy, wherein he has admitted that for effecting Khangee Taqseem between the parties, an application, Ext. D1 was presented before the revenue authorities and the same was duly signed by him. He has further admitted that after effecting family partition, co-sharers are in separate possession of the suit land.

Said admission as made by the plaintiff demolishes his entire case and it corroborates the case of the defendant, whereby specific stand has been taken that after family arrangement, all the parties are enjoying fruits of the suit property.

As far as contention as raised by the learned vice counsel for the plaintiff/appellant that a co-sharer cannot be permitted to raise construction to the detriment of other co- sharers, in Ashok Kapoor vs. Murtu Devi 2016 (1) Shimla Law Cases 207, it has been held by the Hon’ble Supreme

Court that mere making of construction or improvement in the common property does not amount to ouster. If by the act of the co-owner in possession, the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. It has been further held that if the acts of the co-owner in possession are detrimental to the interest of other co- owners, a co-owner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest.

Pleadings as well as evidence, as led by the plaintiff/appellant does not show that by merely raising construction on behalf of the defendant/respondent, it will cause any prejudice to the plaintiff/appellant or it will amount to ouster of the plaintiff over the suit land. In the plaint, the plaintiff has failed to plead that he had purchased the part of the suit land which was not having electric wires. He had purchased the same with his eyes open and in the cross-examination, he has admitted that when he purchased the suit land it was consisting of high tension wires.

It seems that after purchase of the suit land in order to deprive the respondent/defendant to utilize the suit land, the present suit has been filed by the plaintiff. On the strength of application, Ext. D1 and mutation, which has been effected by the revenue authority certainly it is respondent/defendant who has got case in his favour.

Once the suit land has been partitioned on the basis of Khangee Taqseem, the plaintiff/appellant cannot be permitted to approbate and reprobate by taking the plea that the suit land is joint between the parties and the defendant should be restrained from raising construction till the time suit land is partitioned.

The learned courts below after appreciating oral as well as documentary evidence have rightly come to the conclusion that the plaintiff has failed to make out a case for grant of permanent prohibitory or mandatory injunction in any manner. This Court is in agreement with the concurrent findings as rendered by the learned Courts below.

The Hon’ble Supreme Court in catena of judgments has held that the first appellate 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.

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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.”

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

Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any 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.

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.

30th July, 2026

(Romesh Verma) (pankaj)

Judge