Dismissed¶141

Vivek Kumar v. Labh Singh

Himachal Pradesh HC4 Jun 2026RSA/241/2020

Case brief

AI extract

What is this about?

HP High Court Shimla second appeal dismissed; scope of Section 100 CPC; non-interference with concurrent findings of fact; mandatory injunction refused for want of demarcation report and proof of encroachment over Khasra Nos. 2112 and 2141; counter claim partly decreed with permanent prohibitory injunction; gali/passage dispute, Paonta Sahib, District Sirmaur; DW-3 architect witness admissions; substantial question of law on perversity; Romesh Verma, Judge; decided 4.06.2026.

What did the court decide?

The defendant/counter claimant failed to establish any encroachment over Khasra Nos. 2141 and 2112; his material witness DW-3 admitted he did not summon the plaintiff to the spot and did not specify the extent of encroachment, and no demarcation report was placed on record. ¶81

Vivek Kumar Vs Labh Singh — Himachal Pradesh HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶141

Issue for consideration

Whether the impugned judgments and decrees of the learned courts below, declining the decree for mandatory injunction against the respondent/plaintiff in the counter claim of the cross-objector, are based upon misreading, misinterpreting and misconstruing the pleadings and the oral as well as documentary evidence on record, resulting in perversity.

¶60

Court's answer

¶81

Ratio / Principle

The learned trial Court and the learned first appellate Court rightly adjudicated the point in controversy by declining the relief of mandatory injunction in the absence of concrete evidence of encroachment over Khasra Nos. 2141 and 2112; the evidence led by the counter claimant is weak and shaky and mere bald assertion cannot ground relief.

¶82

Key takeaways

The findings of fact recorded by the learned courts below do not call for any interference, especially in view of the Supreme Court's enumeration of the scope of Section 100 CPC in Navaneethammal vs. Arjuna Chetty (AIR 1996 SC 3521).ratio¶86
Both the learned courts below rightly and concurrently determined the point in controversy; there is no infirmity or illegality in the impugned judgments and decrees.ratio¶139
The substantial question of law is answered accordingly and the present appeal, being devoid of any merit, is dismissed; pending applications, if any, also stand disposed of.

Detailed headnote1 paragraphs

RSA No. 241 of 2020, High Court of Himachal Pradesh, Shimla (Romesh Verma, J.; decision 4.06.2026). Regular second appeal by counter claimant Vivek Kumar against the concurrent judgments of the Civil Judge (Junior Division), Court No.2, Paonta Sahib dated 28.04.2015 and the Additional District Judge, Sirmaur at Nahan dated 30.07.2019, which decreed his counter claim for permanent prohibitory injunction but declined the mandatory injunction to demolish allegedly encroaching construction over Khasra Nos. 2112 and 2141, mauja Paonta Sahib. Substantial question of law: whether the decline of mandatory injunction rested on misreading of pleadings and evidence amounting to perversity. Held: the counter claimant failed to establish any encroachment — architect witness DW-3 admitted he neither summoned the plaintiff to the spot nor stated the extent of encroachment, and no demarcation report was produced; the oral testimony was insufficient and the evidence weak and shaky. Relying on Navaneethammal vs. Arjuna Chetty (AIR 1996 SC 3521), Kshitish Chandra Purkait ((1997) 5 SCC 438), Kondiba Dagadu Kadam (AIR 1999 SC 2213), Naresh vs. Hemant ((2022) 18 SCC 802), Brij Narayan Shukla ((2024) 2 SCC 590) and R. Nagaraj (Civil Apepal No.5131 of 2025), the Court held that concurrent findings of fact are not to be interfered with in a second appeal under Section 100 CPC. The substantial question of law was answered accordingly and the appeal was dismissed.

¶1

2024:HHC:7593 )

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

RSA No. 241 of 2020 Reserved on: 25.05.2026 Date of decision: 4.06.2026 Vivek Kumar ...Appellant Versus Labh Singh ...Respondent Coram: The Hon’ble Mr. Justice Romesh Verma, Judge . Whether approved for reporting?¹ For the appellant : Mr. Bimal Gupta, Senior Advocate with Ms. Simran, Advocate. For the respondent : Mr. B.S. Chauhan, Senior Advocate with Ms. Aditi Rana and Mr. Sahil Verma, Advocates.

¶4

Romesh Verma, Judge :

¶5

The present regular second appeal arises out of judgment and decree as passed by learned Additional District Judge, Sirmaur District at Nahan, dated 30.07.2019, whereby the cross-objections bearing No.2/2019, titled Vivek Kumar vs. Labh Singh have been dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib, District Sirmaur, in Counter Claim No.149/1 of 2009, was affirmed, whereby the relief of mandatory injunction was declined to him.

¶6

Brief facts of the case are that respondent Labh Singh filed a suit for permanent prohibitory injunction against the present 1 Whether reporters of Local Papers may be allowed to see the judgment?

¶7

-2-

¶8

2024:HHC:7593 )

¶9

appellant Vivek Kumar and Virender Singh alias Khalsa alias Guru Rakha, restraining them from digging or obstructing the passage/ gali leading to the house, four gathas in breadth of the plaintiff on land comprised In Khata Khatauni No.224/460 Khasra No.96/654/494/65 (old) and Khasra Nos. 2132 to 2138 and 2140 (new) Kitta 8, total measuring 429-56 Sq. mtrs situated at mauja Up-Sampada Paonta Sahib, Tehsil Paonta Sahib, Distt. Sirmour (HP). It was averred in the plaint that defendant No.1 is owner of a vacant plot on the northern side and length of which is 19 gathas and the length of the house of the plaintiff is 21 gathas. The plaintiff has been using the gali for his egress and ingress for the last more than 20 years, as shown in the site plan in red ink, which is the only entrance to the houses of the plaintiff and defendants. The defendants have no right, title or interest to obstruct the said entrance/ gali by digging, raising construction and causing obstruction because the entire plot of the defendant No. 1 measuring 193-20 Sq.mtrs situated on the land in Khewat Khatauni No.169/385, Khasra Nos.995/654/2 (old) and 2141 (new) is connected with the main gali leading from Bhatia place to the house of Sh. S. S. Saini. Therefore, the defendants have no concern with or any right to cause obstruction over the said approach/ gali . 3. The plaintiff sought a decree for permanent prohibitory injunction, restraining the defendants from digging and causing any obstruction on the approach/ gali leading to the house of the plaintiff, as

¶10

-3-

¶11

2024:HHC:7593 )

¶12

shown in the Aksh Sajra of four gathas in breadth leading to the house of the plaintiff constructed on the land comprised in Khata Khatauni No.224/460, Khasra No.96/654/494/65 (old) and Khasra Nos. 2132 to 2138 and 2140 (new) Kittas 8, total measuring 429-56 Sq. mtrs, situated at Mauja Up-Sampada Paonta Sahib-1 Tehsil Paonta Sahib, Distt. Sirmour (HP) by themselves or through their agents, servants, family members or assignees in any manner.

¶13

The suit was contested by defendants No.1 and 2 by filing a written statement. They raised preliminary objections with regard to maintainability, concealment, cause of action, misjoinder etc. On merits, it was averred that the plaintiff is the owner of Khasra Nos.2132 to 2138 and 2140. It was stated that one of the Khasra numbers of the suit land, bearing No.2140, adjoins the land of defendant No. 1 comprised of Khasra No. 2141. Further, there is a path comprised of Khasra Nos.2110 and 2112, which adjoins Khasra Nos. 2141 and 2140. Father of defendant No.1 was owner of Khasra No.2141 and after his death, the same devolved upon defendant No.1, his brother and his mother vide mutation No. 191. Defendant No.1 is a resident of Punjab and taking advantage of his absence, the plaintiff covered Khasra No.2112 and portion of Khasra No.2141 by raising construction over it. When defendant No.1 was informed by his friends regarding the construction work, he immediately reached Paonta Sahib and requested the plaintiff to stop the construction over Khasra Nos. 2141

¶14

-4-

¶15

2024:HHC:7593 )

¶16

and 2112. Instead of stopping the construction, the plaintiff filed the suit, which is false, frivolous and incorrect.

¶17

It was stated that the common length of Khasra Nos. 2140 and 2141 is 16.0 meters and the breadth of Khasra No. 2140 is 12.5 meter and that of Khasra No. 2141 is 13.5 meters. The plaintiff has opened the gate in Khasra No. 2141 contrary to the map sanctioned by the M.C. Paonta and has covered the entire Khasra No. 2112 in which defendant No.1 and his brother are also co-sharers. It was averred that the entrance to the plot of Khasra Nos. 2141 and 2140 is through path/ gali comprised of Khasra Nos. 2110 and 2112, in which defendant No.1 is also a co-sharer along with his brothers. The entry to the house and his plot is through Khasra No. 2112 which he has covered by raising construction and now has erected a gate towards Khasra No. 2141 by encroaching upon the same. It was further averred that it is the plaintiff who has raised construction in the gali /path and not the defendants. It was also submitted that defendants No.2 and 3 have unnecessarily been arrayed in uncalled for litigation as they happened to be the friends of defendant No.1 and have got no role to play in the present proceedings. Therefore, all the averments as made in the plaint were refuted and the defendants prayed for dismissal of the suit.

¶18

Defendant No.1, Vivek Kumar, filed a counter claim against the plaintiff, Labh Singh, seeking decree of permanent

¶19

-5-

¶20

2024:HHC:7593 )

¶21

prohibitory injunction by stopping non-counter claimant through himself or his agents, servants, assignees not to raise any construction over the land comprised in Khasra Nos.2112 and 2141, situated in Mauja Paonta Sahib, Distt. Sirmour and with the prayer that mandatory injunction be passed by demolishing and removing the already raised construction. It was averred in the counter claim that defendant No.1 along with his mother and brother is exclusive owner in possession of the land comprised in Khasra No.2141 and is co-sharer in the land comprised in 2112 situated in Mauza Paonta Sahib, Distt. Sirmour, HP. Adjoining to Khasra No.2141, there is land of plaintiff which is comprised in Khasra No. 2140, situated in Mauza Paonta Sahib, Distt. Sirmour, HP. There is also a path comprised of Khasra No. 2110 and 2112, which adjoins to Khasra No. 2141 and 2140. As per the counter claimant, the father of defendant No.1 was owner of Khasra No.2141 and after his death, the same devolved upon defendant No. 1, his brother and his mother vide mutation No. 191. Defendant No.1 is resident of State of Punjab and taking undue advantage of his absence, the plaintiff covered Khasra No.2112 and a portion of Khasra No.2141 by raising construction over it.

¶22

As per counter claimant he was informed by his friends regarding the construction work and he rushed to the spot to stop construction over Khasra Nos. 2141 and 2112, however, instead of stopping the construction, the plaintiff filed the suit in order to harass

¶23

-6-

¶24

2024:HHC:7593 )

¶25

him. As per the counter claimant, the entrance to the plot of Khasra Nos. 2141 and 2140 is through path/ gali comprised of Khasra Nos. 2110 and 2112, in which defendant No. 1 is also a co-sharer along with his brothers. The entry to the house and his plot is through Khasra No.2112 which he has covered by raising construction and now has erected the gate towards khasra No.2141 by encroaching upon the same.

¶26

It was prayed that a decree of permanent prohibitory injunction be passed by restraining the defendant/counter claimant himself or through his agents, servants and assignees from digging and raising any construction in the land comprised in Khasra Nos.2112 and 2141 situated in Mauza Paonta Sahib, Distt. Sirmour, HP. It was further prayed that mandatory injunction to demolish and remove the already raised construction, be passed in favour of defendant No. 1/counter claimant and against the plaintiff.

¶27

The plaintiff filed written statement to the counter claim as filed by defendant No.1, Vivek Kumar. All the averments as made in the counter claim were denied and refuted. The non-counter claimant stated that the counter claimant has got no cause of action, therefore, the same deserves to be dismissed.

¶28

Learned trial Court framed issues in the matter on 29.07.2010 in the following manner:

¶29

-7-

¶30

2024:HHC:7593 )

¶31

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

¶32

2. Whether the suit is not maintainable in the present form?---OPD

¶33

3 Whether the plaintiff is guilty of suppressio veri? ---OPD

¶34

4. Whether the plaintiff has no cause of action to file the present suit? OPD

¶35

5. Whether the suit is bad for mis-joinder of parties? ---OPD

¶36

6. Whether the counter plaintiff is entitled for relief of permanent prohibitory injunction and mandatory injunction, as prayed for? -OPCP

¶37

7. Whether the counter plaintiff has no cause of action to file the counter-claim?--OPCD

¶38

8. Relief.

¶39

Learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide judgment and decree dated 28.04.2015 dismissed the suit as preferred by the plaintiff, Labh Singh, whereas the counter claim, as filed by defendant No.1, Vivek Kumar, for permanent injunction was decreed, however, the same was dismissed with respect to the relief for mandatory injunction.

¶40

Against the dismissal of the suit, as filed by the plaintiff, and partial decreeing of the counter claim, the plaintiff Labh Singh filed two appeals bearing Civil Appeal No.36-N/13 of 2015, titled Labh Singh vs. Vivek Kumar and others, Civil Appeal No.9-N/13 of 2019, titled Labh Singh vs. Vivek Kumar, in the Court of learned Additional

¶41

-8-

¶42

2024:HHC:7593 )

¶43

District Judge, Sirmaur District at Nahan, H.P. on 29.05.2015 and 17.04.2018, respectively.

¶44

Similarly, the counter claimant, Vivek Kumar, against the refusal of claim with respect to mandatory injunction, also preferred cross-objections bearing Civil Appeal No.2-N/13 of 2019 against the judgment and decree, as passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib on 10.04.2019 before the learned first appellate Court.

¶45

Learned first appellate Court, vide its judgment and decree, dated 30.07.2019 dismissed both the appeals as preferred by the plaintiff and the cross objections, as preferred by defendant No.1/counter claimant.

¶46

Feeling dissatisfied, the plaintiff, Labh Singh, filed two regular second appeals bearing RSA No.542 of 2019, titled Labh Singh vs. Vivek Kumar and another and RSA No.550 of 2019, titled Labh Singh vs. Vivek Kumar. The counter claimant/defendant No.1, Vivek Kumar filed the third regular second appeal bearing RSA No.241 of 2020, titled Vivek Kumar v. Labh Singh i.e. the instant appeal.

¶47

During the pendency of above mentioned three regular second appeals, the plaintiff/respondent preferred two applications under Order 23 Rule 3(a) of CPC, seeking liberty to withdraw Civil Suit No.142/1 of 2009, instituted by him, which had been dismissed by the learned trial Court. The said applications were opposed by the

¶48

-9-

¶49

2024:HHC:7593 )

¶50

present appellant, who submitted that, under the garb of these applications, the present respondent intended to wriggle out of the judgments and decrees passed against him by the learned Courts below.

¶51

The Coordinate Bench of this Court vide its judgment dated 20.08.2024, disposed of the aforesaid two applications, which were filed for the withdrawal of Civil Suit No.142/1 of 2009, by permitting the plaintiff to withdraw the said civil suit, which was filed before learned Civil Judge (Junior Division), Court No.2, Paonta Sahib. However, no liberty was granted to the plaintiff to institute a fresh suit in terms of the prayer which was made in the applications. Consequently, both the regular second appeals bearing RSA Nos.542 and 550 of 2019 were also disposed of.

¶52

As noticed above, the present appeal has been filed by the counter claimant against the judgment and decree passed by learned trial Court dated 28.04.2015, as affirmed by learned first appellate Court vide its judgment and decree dated 30.07.2019, whereby his counter claim filed before the learned trial Court was partly decreed by passing a decree for permanent prohibitory injunction, whereas the decree of mandatory injunction was declined. 19. It is contended by Mr.Bimal Gupta, learned Senior Counsel, duly assisted by Ms. Simran, Advocate, that the judgments and decrees as passed by learned Courts below, which are against

¶53

-10-

¶54

2024:HHC:7593 )

¶55

him, are erroneous and liable to be quashed and set aside. He has submitted that with respect to the passing of decree of permanent prohibitory injunction, he is fully satisfied. However, the learned Courts below have erred by not granting the decree of mandatory injunction in favour of the counter-claimant, the findings rendered by the Courts below are liable to be quashed and set aside. He has further submitted that after accepting the present regular second appeal, the counterclaim as preferred by the defendant/counter claimant be decreed and decree for mandatory injunction be passed in his favour.

¶56

On the other hand, Mr. B.S. Chauhan, learned Senior Counsel, duly assisted by Ms. Aditi Rana, Advocate, appearing for the respondent/plaintiff, has defended the judgment and decree as passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib dated 28.04.2015, whereby the counter-claim, as preferred by the present appellant, was partially decreed, the relief of mandatory injunction was declined and the said finding was affirmed by the learned first appellate Court. He has submitted that in view of the concurrent findings of fact passed by learned Courts below, no interference is required in the present proceedings. Therefore, the present regular second appeal deserves to be rejected. 21. I have heard learned counsel for the parties at length and also scanned the case file and with the consent of the parties, the

¶57

-11-

¶58

2024:HHC:7593 )

¶59

appeal is finally heard at the admission stage on the following substantial question of law:

¶60

Whether the Impugned judgments and decrees, as passed by the Ld Courts below, declining the decree for mandatory injunction against the respondent/plaintiff in counter claim of Cross-objector are based upon misreading and mis-interpreting and misconstruing the pleadings, oral as well as documentary evidence on record, which has resulted into perversity?

¶61

The plaintiff/respondent filed a suit for permanent prohibitory injunction, restraining the defendants from digging or obstructing the gali leading to the house, four gathas in breadth of the plaintiff over the suit land. It is the case of the plaintiff that he has been using the gali for his egress and ingress for the last more than 20 years as shown in red ink on the site plan, which is the only entrance to the house of the plaintiff and defendants No.1 to 4 have got no right, title or interest to obstruct the said entrance/ gali by digging and raising construction and causing obstruction. The entire plot of defendant No.1, measuring 193-20 Sq.mtrs, situated on the land Khewat Khatauni No.169/385 Khasra No.995/654/2 (old) and 2141 (new), is connected with main gali leading from Bhatia place to the house of Sh. S. S. Saini. It is the case of the plaintiff that defendant Nos.1 to 4 along with their henchmen entered in the said gali on 24.11.2009 and threatened that they would take said gali for raising construction. On

¶62

-12-

¶63

2024:HHC:7593 )

¶64

account of timely action on the part of the plaintiff, the defendants were stopped from doing so. However, they have been openly threatening to built the construction over the same.

¶65

The suit as field by the plaintiff was duly contested by the defendants by filing written statement. In the written statement, all the averments made in the plaint were refuted and denied. Besides filing written statement, defendant No.1 Vivek Kumar also filed a counter claim seeking decree of permanent prohibitory injunction, restraining the non-counter claimant himself, or through his agents, servants and assignees from digging and raising any construction in the land comprised in Khasra Nos.2112 and 2141 situated in Mauza Paonta Sahib, Distt. Sirmour, HP with further prayer for passing a decree of mandatory injunction to demolish and remove the already raised construction. The learned trial Court dismissed the suit as filed by the plaintiff. On the contrary the counter claim as preferred by defendant No.1 was partially decreed whereby the decree of permanent prohibitory injunction was passed in favour of the counter-claimant. However, the relief of mandatory injunction was declined. 24. In order to substantiate his case, the defendant/counter claimant examined DW-1 Shri Sanjay Singal. He has filed his affidavit Ext. DW-1/B in order to corroborate the case of the defendants. He stated that he is duly constituted GPA of defendant No.1 and is well conversant with the facts of the case. He stated that defendant No.1,

¶66

-13-

¶67

2024:HHC:7593 )

¶68

his brother and his mother are exclusive owners in possession of the land comprised in Khasra No.2141 and are co-sharers in the land comprised in Khasra No.2112, situated at Mauza Paonta Sahib. Adjoining to Khasra No.2141, there is land of the plaintiff, which is comprised in Khasra No.2140. There is also a path comprised in Khasra Nos.2110 and 2112, which adjoins Khasra Nos.2141 and 2140. The father of defendant No.1 was owner of Khasra No.2141 and after his death, the same devolved upon defendant No.1, his mother and his brother. Defendant No.1 is the resident of Amirtsar, State of Punjab, and taking undue advantage of his absence, the plaintiff covered Khasra No.2112 and a portion of Khasra No.2141 by raising construction over the same. Defendant No.1 was informed immediately by the said witness regarding raising of the construction. On receipt of the information, the defendant immediately reached Paonta Sahib and requested the plaintiff to stop the construction, however, he failed to do so.

¶69

As per DW-1, defendant never interfered nor tried to dig or raise construction in the gali or the land of the plaintiff, but the plaintiff has filed the present suit on false facts just to hide his wrongdoings. In the cross-examination, he stated he could not say that the father of the defendant purchased the passage. He self sated that the passage is joint. He admitted that the disputed path connects the house of the plaintiff. He stated that he could not say that what is the total length of

¶70

-14-

¶71

2024:HHC:7593 )

¶72

the gali over the suit land. He admitted that the plot of the defendant bearing Khasra No.2141 and the joint land a house was constructed over Khasra No.2140. He stated that the plaintiff encroached the suit passage over the land of the defendant.

¶73

DW-2 is the statement of Virender Singh, who filed his affidavit DW-2/A. In the affidavit, he has deposed that defendant No.1 along with his mother and his brother are exclusive owners-inpossession of the land comprised in Khasra No.2141 and are cosharers in the land comprised in Khasra No.2112, situated in Mauza Paonta Sahib. Adjoining to Khasra No.2141, there is land of the plaintiff, which is comprised in Khasra No.2149, There is also a path comprised of Khasra Nos.2110 and 2112 which adjoins to Khasra Nos.2141 and 2140. The father of defendant No.1 was the owner of Khasra No.2141 and after his death, the same has devolved upon defendant No.1, his mother and his brother. Taking advantage of absence of defendant No.1, the plaintiff covered Khasra No.2112 and a portion of Khasra No.2141 by raising construction over the same. In the cross-examination, he admitted that he could not tell that what is the total extent of the suit land. He denied that defendant No.1 in collusion with the settlement authorities incorporated the gali in the revenue records in his favour. 27. The defendant also examined Shri Rohit Bansal as DW-3. He stated that he is a diploma holder Architect. He deposed that he

¶74

-15-

¶75

2024:HHC:7593 )

¶76

prepared the site plan of buildings etc. He stated that he has prepared the map Mark A, which is Ext. DW-3/A. He stated that the encroachment, which was found on the spot, has been shown in the red line and the same fact has also been stated in the endorsement. In the cross-examination, there is admission on the part of this witness that he could not tell that how many persons are the owners of Khasra No.2141. He admitted that at the time of preparation of the said map, he did not summon the plaintiff to the spot. He stated that he could not tell that what is the total dimension of Khasra No.2141 over the spot. Further, he admitted that he did not specify the exact extent of encroachment found on the spot in his report Ext. DW-3/A.

¶77

Shri Brij Lal has been examined as DW-4 in order to substantiate the case as set up by the counter claimant/defendant. He brought the record of the map Ext. DW-4/A.

¶78

In order to strengthen his case, the counter claimant has placed on record a copy of site plan Ext. DW-3/A. The said site plan was prepared and proved by DW-3 Rohit Bansal. 30. A perusal of the record in conjunction with the oral evidence reveals that the defendant/counter claimant has failed to establish any kind of encroachment over Khasra Nos.2141 and 2112. The material witness of defendant/counter claimant is DW-3 Rohit Bansal, who in his deposition, has admitted that he could not tell that how many persons are owners of Khasra No.2141. He stated that he

¶79

-16-

¶80

2024:HHC:7593 )

¶81

could not tell what is the total dimension of Khasra No.2141. He admitted that the plaintiff was not summoned to the spot when the map was prepared. There is an admission on the part of the said witness that in Ext. DW-3/A, it has not been mentioned how much encroachment was found over the suit land. Neither this witness associated any revenue official while preparing his report nor he calculated and gave description of encroachment ,if any, made by the plaintiff over Khasra No.2141. The defendant No.1 has failed to establish any encroachment over Khasra Nos.2141 and 2112. The best possible evidence to establish his case would have been copy of demarcation. However, in the present case, no demarcation report has been placed on record to substantiate his contention.

¶82

Learned trial Court as well as learned first appellate Court have rightly adjudicated the point in controversy by declining the relief of mandatory injunction in the absence of concrete evidence to show that there is any encroachment over the suit land i.e. Khasra Nos.2141 and 2112. The evidence as led by defendant No.1/counter claimant is weak and shaky and does not prove his case beyond reasonable doubt. Merely on the bald assertion of the counter claimant, no relief can be granted to him. In the absence of any plea or substantial proof, learned Courts below have rightly declined the relief as sought by the counter claimant for grant of decree of mandatory injunction. The best evidence could have been the demarcation, however, in the absence

¶83

-17-

¶84

2024:HHC:7593 )

¶85

of the same, the counter claimant has failed to prove his case. The oral testimony of counter claimant is not sufficient to grant the decree of mandatory injunction.

¶86

The findings of facts, as recorded by learned Courts below, do not call for any interference, especially in view of the judgment as passed by Hon’ble Supreme Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521 , wherein the scope of Section 100 of CPC has been enumerated, which reads as under:

¶87

“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.

¶88

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 re-appreciation 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.”

¶89

33. Similarly, the Hon’ble Apex Court in Kshitish Chandra

¶90

Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under:

¶91

“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

¶92

-18-

¶93

2024:HHC:7593 )

¶94

in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to subsection (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 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.

¶95

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.”

¶96

34. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar

¶97

and others, AIR 1999 SC 2213 , the Hon’ble Supreme Court has held

¶98

as under:

¶99

“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

¶100

-19-

¶101

2024:HHC:7593 )

¶102

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 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.”

¶103

35. In Naresh and others vs. Hemant and others, (2022) 18

¶104

SCC 802 , the Hon’ble Supreme Court held as under:

¶105

“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

¶106

-20-

¶107

2024:HHC:7593 )

¶108

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.

¶109

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.

¶110

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:

¶111

“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

¶112

-21-

¶113

2024:HHC:7593 )

¶114

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 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.”

¶115

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

¶116

-22-

¶117

2024:HHC:7593 )

¶118

Gurdev Kaur v. Kaki, (2007) 1 SCC 546, holding as follows:

¶119

“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 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.

¶120

xxxx

¶121

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.

¶122

xxxx

¶123

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

¶124

-23-

¶125

2024:HHC:7593 )

¶126

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 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.

¶127

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.”

¶128

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.”

¶129

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 Supeme Court held as under:

¶130

-24-

¶131

2024:HHC:7593 )

¶132

“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.”

¶133

In Civil Apepal No.5131 of 2025, titled as R. Nagaraj (dead) through LRs and another vs. Rajmani and others , the Hon’ble Supreme Court held as under:

¶134

“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.

¶135

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

¶136

-25-

¶137

2024:HHC:7593 )

¶138

dealing with the Second Appeal under Section 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.”

¶139

Both the learned Courts below have rightly determined the point in controversy concurrently and there is no infirmity or illegality in the impugned judgments and decrees passed by the learned Courts below.

¶140

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

¶141

The substantial question of law is answered accordingly. 41. In view of above discussions, the present appeal being devoid of any merit is dismissed. Pending applications, if any, also stand disposed of.

¶142

(Romesh Verma) Judge

¶143

4^th June, 2026 (vt)

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and decree of the learned Additional District Judge, Sirmaur District at Nahan, dismissing cross-objections No.2/2019 (Vivek Kumar vs. Labh Singh) and affirming the trial court decree which declined the relief of mandatory injunction to the counter claimant.¶5
Additional District Judge, Sirmaur District at Nahan · 30.07.2019
Prior proceeding
Respondent Labh Singh filed a suit for permanent prohibitory injunction against appellant Vivek Kumar and Virender Singh alias Khalsa alias Guru Rakha, restraining them from digging or obstructing the gali leading to the plaintiff's house.¶9
Prior proceeding
Defendants No.1 and 2 contested the suit by filing a written statement, raising preliminary objections and refuting the plaint averments.¶13
Prior proceeding
Defendant No.1 Vivek Kumar filed a counter claim against plaintiff Labh Singh seeking permanent prohibitory injunction over Khasra Nos. 2112 and 2141 and mandatory injunction to demolish already raised construction.¶18
Prior proceeding
Trial court framed eight issues on 29.07.2010 covering entitlement to injunctions, maintainability, suppressio veri, cause of action, misjoinder and the counter-claim reliefs.¶28
Prior proceeding
Trial court (Civil Judge Junior Division, Court No.2, Paonta Sahib) vide judgment and decree dated 28.04.2015 dismissed the plaintiff's suit, decreed the counter claim for permanent injunction, and dismissed the mandatory injunction relief.¶39
Prior proceeding
Plaintiff Labh Singh filed two appeals, Civil Appeal No.36-N/13 of 2015 and Civil Appeal No.9-N/13 of 2019, before the learned Additional District Judge, Sirmaur District at Nahan.¶40
Prior proceeding
Counter claimant Vivek Kumar preferred cross-objections bearing Civil Appeal No.2-N/13 of 2019 on 10.04.2019 before the first appellate court against the refusal of mandatory injunction.¶44
Prior proceeding
First appellate court vide judgment and decree dated 30.07.2019 dismissed both appeals of the plaintiff and the cross-objections of the counter claimant.¶45
Prior proceeding
Three regular second appeals arose: RSA No.542 of 2019 and RSA No.550 of 2019 by plaintiff Labh Singh, and RSA No.241 of 2020 by counter claimant Vivek Kumar (the instant appeal).¶46
Prior proceeding
During pendency of the three second appeals, the plaintiff/respondent preferred two applications under Order 23 Rule 3(a) of CPC seeking liberty to withdraw Civil Suit No.142/1 of 2009; the appellant opposed them.¶47
Prior proceeding
Coordinate Bench of this Court vide judgment dated 20.08.2024 permitted withdrawal of Civil Suit No.142/1 of 2009 without liberty to institute a fresh suit, and disposed of RSA Nos. 542 and 550 of 2019.¶51

Vivek Kumar v. Labh Singh

Case brief

What is this about?

What did the court decide?

Vivek Kumar v. Labh Singh

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Narender Kumar Vs Lata Kumari

Union of India and Others Vs Dev Raj and Others

Amar Chand Vs State of Hp and Others

Rami Chand Vs Nipun Jindal and Others

Bhup Singh and Others Vs Janku(deceased) through LRs Judhya and Ors.

Ramesh Kumar and Others Vs the Lac and Others