Puneet Kumar Vs Narinder Kumar and Another

The present appeal arises out of judgment and decree as passed by learned Additional District Judge-I, Kangra at Dharamshala, District Kangra, H.P. dated 02.01.2025, whereby the appeal filed by the plaintiff/appellant was dismissed and the judgment and decree as passed by learned Senior Civil Judge, Kangra, District Kangra, H.P. dated 31.08.2023 was affirmed, whereby the suit as instituted by the plaintiff was ordered to be dismissed.

¶12

The facts, as emerge, in the present case are that the present appellant/plaintiff filed a suit for grant of permanent prohibitory injunction, restraining the defendants, their agents, servants, assignees, relations, representatives etc. from

¶13

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interfering with the ownership and possession of the plaintiff, cutting the trees, changing the nature of the land, dispossessing the plaintiff by raising construction and doing other acts in any manner over the land bearing Khata number 115, Khatauni No.177, Khasra Nos.725/525, 726/525, 727/525, 728/525, 526, plots 5 area measuring 00-06-26 hectares, situated at Mohal Kaswa, Mauza Pathiar, Tehsil Nagrota Bagwan, District Kangra. Further, decree for possession of that part of the suit land on which the defendants succeeded in raising the construction during the pendency of the suit was sought by the plaintiff as well as removal of the obstruction thereon, if it is found to be over the suit land.

¶15

As per the averments as made in the plaint, it was stated that the suit land is owned and possessed by the plaintiff and other co-sharers, and the same entries were effected in the remarks column of jamabandi for the year 2007-2008. The land of defendant No.1 adjoins to the suit land and the defendants are strangers to the suit land. The defendants started interfering with the ownership and possession of the plaintiff over the suit land. They are bent upon to cut the trees, to raise boundary wall, to dispossess the plaintiff from the part of the suit land and to raise the construction thereon forcibly. It is the case of the plaintiff that the defendants have no right, title or interest over the suit land,

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therefore, the defendants through their agents, servants, assignees, relations, representatives etc. be restrained by grant of decree for permanent prohibitory injunction from doing the aforesaid acts. In case the defendants succeed in dispossessing the plaintiff and other co-sharers from occupying any part of the suit land by raising construction thereon illegally, unauthorizedly, and without the consent of the plaintiff and other co-shares, then the plaintiff is entitled to vacant possession of the land found to be in unauthorized possession thereon by demolition of the construction and removal of any obstruction whatsoever over the suit land.

¶18

The suit was contested by the defendants by filing written statement raising preliminary objections with respect to maintainability, act, conduct and acquiescence, non-joinder, misjoinder, locus sandi, valuation etc. On merits, it was averred by the defendants that they are having their own land adjoining to the suit land duly fenced for the last 20 to 25 years. The defendants are not causing any kind of interference over the suit land, although the plaintiff is in habit of causing interference in the peaceful ownership and possession of the defendants by cutting bushes to enhance the boundary. It was specifically denied that

¶19

the defendants are bent upon to cut the trees, to raise boundary wall or raising construction. It was stated that the defendants are

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not going to raise any kind of construction over the suit land. As such, the contents of the averments as made in the plaint were totally denied. The defendants prayed for dismissal of the suit.

¶22

The plaintiff filed replication to the written statement

¶23

as filed by the defendants and all the averments as made in the plaint were reiterated.

¶24

Learned trial Court framed the issues on 21.09.2015

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in the following manner:

¶26

Whether plaintiff is entitled the relief of permanent prohibitory injection as prayed for? OPP.

¶27

Whether plaintiff is entitled for the relief of possession as prayed for? OPP.

¶28

Whether suit is not maintainable in the present form as prayed for?OPD.

¶29

Whether plaintiff has not come to the court with clean hand as alleged? OPD.

¶30

Whether the suit is bad for non-joinder and misjoinder of necessary parties as prayed for? OPD.

¶31

Whether suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD.

¶32

Whether plaintiff is estopped by his act, conduct and acquiescences form filing the present suit as prayed for? OPD.

¶33

Whether the plaintiff has got no cause of action and locus-standi to file the present suit alleged? OPD.

¶34

Relief.

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Learned trial Court directed the respective parties to adduce evidence in support of the contentions and vide its judgment and decree dated 31.08.2023, the suit as instituted by the appellant/plaintiff came to be dismissed.

¶37

Feeling dissatisfied, the plaintiff preferred appeal before the learned Additional District Judge-I, Kangra at Dharamshala, District Kangra, H.P. on 03.11.2023 and the learned first appellate Court vide its judgment and decree dated 02.01.2025 dismissed the appeal as preferred by the plaintiff/appellant and affirmed the findings as returned by learned trial Court.

¶38

Feeling dissatisfied again, the plaintiff has approached this Court by filing the instant regular second appeal. 10. It is contended by Mr. Naveen K. Bhardwaj, 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 learned Courts below have not taken into consideration the oral as well as documentary evidence placed on record as a result of which great prejudice has been caused to the present appellant. He would submit that, after accepting the present appeal, the suit, as instituted by the plaintiff, deserves to be decreed.

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On the other hand, Mr. Amit Sharma, learned counsel for the respondents has defended the impugned judgments and decrees as passed by learned Courts below. He submits that while invoking the provisions of Section 100 of CPC, this Court will not interfere in the concurrent findings of fact as returned by learned Courts below. He submits that learned Courts below have rightly appreciated the point in controversy and after appreciating the oral as well as documentary evidence placed on record have rightly dismissed the suit as filed by the plaintiff.

¶41

I have heard learned counsel for the parties and gone through the case file as well as records.

¶42

With the consent of parties, the present appeal is finally heard at the admission stage on the following substantial question of law:

¶43

Whether the judgments and decrees as passed by learned courts below are sustainable in the eyes of law when the same has been passed without considering the documentary evidence and oral evidence, which has caused injustice to the appellant?

¶44

In the present case, the plaintiff filed a suit for grant of permanent prohibitory injunction and possession against the defendants on the ground that he is owner-in-possession of the suit land bearing Khata number 115, Khatauni No.177, Khasra

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Nos.725/525, 726/525, 727/525, 728/525, 526, plots 5 area measuring 00-06-26 hectares, situated at Mohal Kaswa, Mauza Pathiar, Tehsil Nagrota Bagwan, District Kangra, along with other co-sharers. The case as set up by the plaintiff is that the land of defendant No.1 adjoins to the suit land and the defendants are strangers to the suit land. It is the case of the plaintiff that the defendants have no right, title or interest over the suit land, therefore, the defendants through their agents, servants, assignees, relations, representatives etc. be restrained by grant of a decree for permanent prohibitory injunction from doing the aforesaid acts. It is further case of the plaintiff that in case the defendants succeed in dispossessing the plaintiff and other cosharers and in occupying the part of the suit land by raising construction thereon illegally, unauthorizedly and without the consent of the plaintiff and other co-shares, then the plaintiff is entitled to the vacant possession of the land if found in unauthorized possession thereon by demolition of the construction and removal of any obstruction whatsoever over the suit land.

¶47

On the other hand, it is the case of the defendants that they are owners-in-possession of the land adjoining to the suit land duly fenced for the last 20 to 25 years. They have

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admitted that they are not going to raise any kind of construction over the suit land.

¶50

In order to corroborate his case, the plaintiff has placed on record his affidavit, Ext.PW-1/A, wherein all the averments made in the plaint have been reiterated. In his statement, he has stated that the defendants have no right, title or interest over the suit land and in the third week of August 2014, the defendants started interfering over the same. They started cutting the trees and bushes which had been planted by the plaintiff and were uprooted by the defendants. It is further the case of the plaintiff that the defendants started erecting a retaining wall over the suit land, and they have got no right, title to do so. It has been stated that though, the defendants were requested to stop their illegal acts, however, despite passing of the stay order, they did not stop and continued with their illegal designs. It has further been stated that after the passing of stay order, the defendants have erected barbed wire over the suit land and unauthorizedly encroached upon some portion of it. It was stated that the defendants may be directed to remove the barbed wire erected over the suit land and that the land which was encroached upon by them be ordered to be removed by passing a decree of possession.

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¶52

In the cross-examination, PW-1 has admitted that the suit land is adjoining to the land owned by the defendants. He admitted that the defendants are having their houses just adjacent to the suit land. Further, he admitted that he never got carried out the demarcation over the suit land. He also admitted that where the suit land ends, the land of the defendants begins. From the boundary where the area of defendants’ starts, there is barbed wire and no demarcation was got conducted by the plaintiff over the suit land. He admitted that the defendants have been in possession of their own land for last 15 to 20, self stated that it has been for more than 25 years. He stated that the possession of the respective parties has been coming from the time immemorial. He denied that he was trying to encroach over the land of the defendants. He admitted that the defendants had erected iron angles and barbed wire. Self stated that the same had been erected on the suit land. He further stated that the defendants had erected iron angles about three years ago. To that effect, no complaint was made either to the Panchayat or to the police authorities. He stated that for carrying out the demarcation no application was filed by him.

¶53

In order to corroborate his case, the plaintiff has examined Naveen Kumar, PW-2. The copy of affidavit of PW-2 is Ext. PW-2/A. In his affidavit, he has stated that the defendants

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have got no right or title over the suit land. About two years ago, the defendants started interfering illegally and unauthorizedly. The defendants started cutting down the trees and erecting the wall illegally, without any right or title. While doing so, the defendants were stopped, but, they refused to accede to the request of the plaintiff. He further stated that during the pendency of suit, the defendants forcibly erected the barbed wire over some portion of the suit land and the defendants have got no right or title to do so.

¶56

In his cross-examination, he admitted that he had not received any summons in order to make statement before the Court. He stated that he could not state the khasra number of the suit land. He further admitted that he could not state the total area of the suit land. He admitted that the defendants are in possession of the land owned by them for the last 40 to 50 years. He admitted that the plaintiff and the defendants are in their respective possession. About 8 to 10 years ago, the defendants constructed a house over their own land. He admitted that it is correct that both the parties are in possession of the land owned by them. He stated that the plaintiff could have demarcated the suit land, but this was not done in his presence. He stated that no quarrel took place in his presence. He admitted that both the parties are in their respective possession qua the land owned by

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them. He stated that no construction was carried out in his

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presence.

¶60

PW-3 is the statement of Joginder Kumar. He produced Ext. PW-3/A, a copy of demarcation report.

¶61

PW-4 is the statement of Roshan Lal. He stated that he retired as Kanungoo on 30.10.2010. He further stated that in case titled as Narinder Kumar vs. Chaman Lal, he had carried out the demarcation, the copy of which is Ext. PW-3/A and the same contains his signatures. The statement of Puneet Kumar, plaintiff, is Ext. PW-4/D.

¶62

In his cross-examination, he has admitted that while carrying out the demarcation, notice was not issued to plaintiff, Puneet Kumar. He admitted that the demarcation pertains to Khata No.103 min, Khatauni No.159 min, Khasra No.527, with area measuring 0-04-07 hectares. He admitted that the demarcation was carried out with respect to the land in dispute inter se Narinder Kumar and Chaman Lal and that the plaintiff, Puneet Kumar, had no concern with the same.

¶63

In order to rebut the evidence of the plaintiff, defendant Narender Kumar, filed his affidavit Ext. DW-1/A, wherein he reiterated the averments made in the written statement. He stated that, adjoining to the suit land, the defendants are the owners of the suit land which consists a

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house, and the same was constructed by the defendants over their own land about 20 to 25 years ago. He stated that the plaintiff and the defendants have been in possession for so many years and that the plaintiff tried to encroach over the land owned by the defendants by raising barbed wire. He stated that the defendants never raised any construction of wall on the suit land nor they cut any tree or interfere with the suit land in any manner. He stated that they have got no concern with the suit land. He stated that the plaintiff has filed the present suit on account of rivalry and the same has been filed on incorrect facts. Therefore, the suit deserves to be dismissed.

¶66

In the cross-examination, he admitted that the plaintiff had raised a boundary wall over the suit land. Self stated that they had also raised the boundary wall about 25 to 30 years ago. He denied that in August 2014, they interfered with the suit land and started to uproot the boundary wall of the plaintiff. He denied that, despite the passing of stay order, they uprooted the barbed wire and erected a wall over the same. He stated that the defendants have no concern with the suit land. The suggestion put by learned counsel for the plaintiff that the defendants uprooted the barbed wires was specifically denied by DW-1. The plaintiff has placed on record the copy of demarcation report Ext. PW-3/A and the copy of jamabandi as Ext. P-1.

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A perusal of jamabandi Ext. P-1 clearly reveals that Khasra No.725/525 has been shown as ‘Banjar Kadeem’ , Khasra No.726/525 has been shown as ‘ Gair Mumkin Rasta , Khasra No.727/525 has been shown as ‘ Gair Mumkin Gadda ’, Khasra No.728/525 has been shown as ‘Banjar Kadeem ’ and Khasra No.526 is ‘ Gair Mumkin Gaushala ’.

¶69

A perusal of revenue record falsifies the case of the plaintiff, whereby he has stated that the defendants had uprooted the trees over the suit land. The entire case of the plaintiff rests on the fact that the defendants raised the construction and unauthorizedly encroached upon the land owned and possessed by the plaintiff. Therefore, decree for permanent prohibitory injunction and possession be passed in his favour.

¶70

When the entire evidence of the plaintiff and the defendants is read in its entirety, it demolishes the case of the plaintiff. The plaintiff himself has admitted the fact that the parties have been in their respective possessions for more than 15 to 20 years, self stated as 25 years. He has admitted that no application was filed before any authority to get the suit land demarcated. The admission made by the plaintiff is falsified by the statement of PW-2, who also admitted in his statement that

¶71

the parties have been in their respective possession for the last 8 to 10 years. PW-2 admitted that he does not know the Khasra

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number of the suit land nor does he know the extent of the same. He has admitted that the defendants have been in possession of the suit land for the last more than 40 to 50 years. The statements of PW-1 and PW-2 clinch the entire controversy, as the plaintiff has failed to establish the kind of encroachment that was made by the defendants over the suit land. The only document on which the plaintiff relies is Ext. PW-3/A, which cannot be taken into consideration due to the fact that it pertains to case titled as Narender Kumar vs. Chaman Lal. In the said proceedings; the plaintiff was not the party in any manner. Therefore, no benefit of any kind can be granted to the plaintiff of the said document.

¶74

In order to prove the encroachment, it was incumbent upon the plaintiff to substantiate and prove that an encroachment was made by the defendants. This fact could have been proved by placing a demarcation report on record.

¶75

On the contrary, it is the case of the plaintiff himself that no demarcation application was filed by him before any authority. Therefore, in the absence of any proof regarding encroachment, the learned trial Court rightly declined the decree for possession based upon encroachment.

¶76

As far as the allegation of the plaintiff that the defendants are interfering over the suit land is concerned, this fact has not been established by the plaintiff in any manner. As

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observed earlier, the classification of the suit land falsifies the case of the plaintiff because the suit land consists of ‘Banjar Kadeem’, ‘Gair Mumkin Rasta, ‘Gair Mumkin Gadda’ Banjar Kadeem’ and ‘Gair Mumkin Gaushala’. There is no whisper in the evidence led by the plaintiff of any kind of interference over the suit land. The findings as returned by learned Courts below are purely questions of fact, which have been rightly determined by the learned Courts below. The learned trial Court, after discussing the oral as well as documentary evidence placed on record, rightly adjudicated the controversy inter se the parties and dismissed the suit filed by the plaintiff, which findings were affirmed by learned first appellate Court. This Court is in agreement with the judgments and decrees as passed by the learned Courts below, therefore, same do not require any interference.

¶79

The Hon’ble Supreme Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521 , has enumerated the scope of Section 100 of CPC, which reads as under:

¶80

“10. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts.

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20. In our considered view the lower Appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by Limitation. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material.”

¶83

32. Similarly, the Hon’ble Apex Court in Kshitish

¶84

Chandra Purkait vs. Santosh Kumar Purkait and others

¶85

(1997) 5 SCC 438 has held as under:

¶86

“10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on Court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in

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mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline.

¶89

11. The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 CPC, have been laid down by this Court in a Constitution Bench decision in Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd There is also a later decision of this Court in Mahindra and Mahindra Ltd. v. Union of India3. It is unnecessary to deal at length with that aspect any further.”

¶90

¶91

In Kondiba Dagadu Kadam vs. Savitribai Sopan

¶92

Gujar and others, AIR 1999 SC 2213 , the Hon’ble Supreme Court has held as under:

¶93

“5. 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 are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its

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opinion for the opinion of the first appellate Court unless 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 without evidence.”

¶96

In Naresh and others vs. Hemant and others, (2022) 18 SCC 802 , the Hon’ble Supreme Court held as under:

¶97

“10.The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.

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2 . The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.

¶100

12.In Madamanchi Ramappa v. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows:

¶101

“12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates

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what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.”

¶104

13 . Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur v. Kaki, (2007) 1 SCC 546, holding as follows:

¶105

“71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100

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CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.

¶108

xxxx

¶109

73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100.

¶110

xxxx

¶111

81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section

¶112

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100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.

¶114

82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

¶115

14 . The order of the High Court interfering with concurrent findings of facts by two courts is, therefore, held to be unsustainable in exercise of the powers under Section 100 of the Civil Procedure Code. The order of the High Court is consequently set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial Court and the First Appellate Court are restored. The suit of the plaintiffs is dismissed. The present appeal is allowed.”

¶116

In Brij Narayan Shukla (dead) through legal representatives vs. Sudesh Kumar Alias Suresh Kumar (dead) through Legal Representatives and others, (2024) 2 SCC 590 , the Hon’ble Supreme Court held as under:

¶117

“10.2 The High Court was hearing the Second Appeal under section 100 of Code of Civil Procedure, 1908 and it having reappreciated the findings to disturb findings of fact, committed an error.”

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¶119

In Civil Apepal No.5131 of 2025, titled as R.

¶120

Nagaraj (dead) through LRs and another vs. Rajmani and

¶121

others , the Hon’ble Supreme Court held as under:

¶122

“7. By the impugned judgment and order and without answering anything on the substantial questions of law framed/formulated, absolutely in a casual manner, the High Court has allowed the Second Appeal and has set aside the concurrent findings recorded by both the courts below and thereafter has remanded the matter to the learned trial Court permitting the original plaintiff to amend the plaint and pray for fixation of the boundary.

¶123

9. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all. From the impugned judgment and order passed by the High Court, it appears that the High Court has exercised the powers as if the High Court was deciding the Writ Petition under Article 226 of the Constitution of India. The High Court has not appreciated at all that the High Court was deciding the Second Appeal under Section 100 of the CPC and that too against the concurrent findings of fact by both the courts below, which were, as such, on appreciation of evidence on record. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable.11. At the cost of repetition, it is observed that the High Court was dealing with the Second Appeal under Section

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100 CPC and the concurrent findings recorded by both the courts below which were on appreciation of evidence on record. Neither at the stage of deciding the suit nor even before the first Appellate Court even such a prayer was made to amend the plaint, which is now permitted by the High Court, despite the fact that earlier in the suit during the course of trial, the plaint was amended. Under the circumstances also, the impugned judgment and order passed by the High Court is unsustainable.”

¶126

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

¶127

The substantial question of law is answered accordingly.

¶128

In view of above discussions, the present appeal being devoid of any merit is dismissed. Pending applications, if any, also stand disposed of.

¶129

( Romesh Verma ) Judge

¶130

July 01, 2026 (vt)

Puneet Kumar v. Narinder Kumar and Another

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Puneet Kumar v. Narinder Kumar and Another

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