Dismissed¶85

Baldev Singh v. Dayal Singh and Anr.

Himachal Pradesh HC6 Mar 2026RSA/253/2025

Case brief

AI extract

What is this about?

RSA No.253 of 2025 | Baldev Singh v. Dayal Singh & Anr. | High Court of Himachal Pradesh, Shimla | decided 06.03.2026 | second appeal dismissed — no substantial question of law (Section 100 C.P.C.) | co-sharer's construction on joint unpartitioned land does not amount to ouster; best course is to seek partition | injunction discretionary relief; case must be proved beyond reasonable doubt | plaintiff admitted out of possession since 1986-87 | Specific Relief Act ss.34-38 | cited/relied: Navaneethammal AIR 1996 SC 3521; Kshitish Chandra Purkait (1997) 5 SCC 438; Kondiba Dagadu Kadam AIR 1999 SC 2213.

What did the court decide?

None — appeal dismissed with no order as to costs; pending application(s), if any, stand disposed of. ¶85

Baldev Singh Vs Dayal Singh and Anr. — Specific Performance | Himachal Pradesh HC (2026)

What the court decided

AI extract

Outcome

None — appeal dismissed with no order as to costs; pending application(s), if any, stand disposed of.

¶85

Issue for consideration

Whether the present Regular Second Appeal involves any question of law, much less a substantial question of law, warranting interference under Section 100 C.P.C. with the concurrent findings of fact of the Courts below. +1 more

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Court's answer

Under Section 100 C.P.C. this Court cannot interfere with the findings of fact arrived at by the first Appellate Court, which is the final Court of facts, except where such findings are erroneous as being contrary to mandatory provisions of law or settled Apex Court positions, based upon inadmissible evidence, or recorded without evidence/proper appreciation of documents.

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Ratio / Principle

Concurrent findings of fact having been rendered by the Courts below, the scope of interference is very narrow and limited; the High Court cannot re-appreciate evidence to substitute its own view for a plausible finding of fact of the first appellate court.

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Key takeaways

No question of law, much less any substantial question of law, arises in the present appeal; the appeal is therefore devoid of merit.ratio¶85
The plaintiff (PW-1) categorically admitted he has been out of possession of the suit land since 1986-87, residing in Shimla and Chandigarh, and failed to pinpoint or demonstrate what interference/construction defeated his right; his statement clinches the entire case.ratio¶45
The Courts below rightly concluded that the plaintiff failed to plead/prove that the defendant's construction amounted to ouster or prejudice; mere construction by a co-sharer in possession of the joint, unpartitioned land does not amount to ouster of the other co-sharer.

Detailed headnote1 paragraphs

HP High Court, Shimla — RSA No.253 of 2025, Baldev Singh v. Dayal Singh & Anr., decided 06.03.2026 (Justice Romesh Verma). Regular Second Appeal from the District Judge, Mandi's decree of 05.03.2025 dismissing the appellant-plaintiff's first appeal and affirming the Civil Judge, Court No.3, Mandi's decree of 08.08.2024 dismissing his suit (Sections 34–38, Specific Relief Act) for permanent prohibitory and mandatory injunction restraining/removing a co-sharer's construction on joint, unpartitioned suit land in Mohal Kummi. Upholding the concurrent findings, the Court held that the plaintiff, PW-1, had admitted being out of possession since 1986-87 (residing in Shimla/Chandigarh) and had failed to prove that the defendant's construction amounted to ouster of, or prejudice to, his rights; mere construction by a co-sharer in possession is not ouster — an aggrieved co-sharer's best course is to apply for partition. Injunction being discretionary relief, the claimant had to establish his case beyond reasonable doubt. Relying on Section 100 C.P.C. principles and on Navaneethammal v. Arjuna Chetty AIR 1996 SC 3521, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar AIR 1999 SC 2213, the Court found no question of law, much less any substantial question of law, and dismissed the appeal with no order as to costs; pending applications disposed of.

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1 2026:HHC:6164 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No.253 of 2025 Reserved on 25.02.2026 Date of Decision : 06.03.2026

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Baldev Singh …..Appellant. Versus Dayal Singh & Anr. ...Respondents

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Coram: The Hon’ble Mr. Justice Romesh Verma. Judge.

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Whether approved for reporting?¹

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For the appellant : Mr. Lalit Kumar Sehgal, Advocate.

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For the respondents : Aashish Verma, Advocate.

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Romesh Verma, Judge(oral)

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This Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Mandi, District Mandi, dated 05.03.2025 , whereby the appeal preferred by the appellant has been dismissed and the judgment and decree as passed by the learned Civil Judge, court No.3, Mandi, District Mandi,, dated 08.08.2024 whereby the suit filed by plaintiff was ordered to be dismissed, has been affirmed.

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

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2 2026:HHC:6164 )

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Brief facts of the case are that the plaintiff/appellant filed a suit for Permanent Prohibitory Injunction and Mandatory Injunction under Sections 34 to 38 of Specific Relief Act in the Court of learned Civil Judge, Court No.3, Mandi on 24.08.2020. It was stated in the plaint that the suit land situated in Mohal Kummi, Tehsil & District Mandi is recorded in the joint ownership and possession of the plaintiff, defendant No.1 and other co-sharers. It was further averred that the suit land is situated adjacent to Nalsar road and it is very valuable land. Since the suit land is joint between the parties and it is unpartitioned, therefore, each and every co sharer has got right and title to use this property and no co-sharer can be permitted to raise the construction to the detriment of the other co-sharer until and unless the same is partitioned by metes and bounds in the plaint.

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In the plaint it was further averred that the defendants without the consent of the plaintiff and after taking undue advantage of the absence of the plaintiff, who is residing in Shimla and Chandigarh, have started digging pits and raised the construction of

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3 2026:HHC:6164 )

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new house w.e.f 21.08.2020. It was submitted that the said construction being raised by the defendants is illegal and malafide and without the prior consent of the other co-sharer especially the plaintiff. It was averred that in case the defendants are not restrained from raising construction over the suit land, in that event he shall suffer huge and an irreparable loss and further prayer was made for demolition of the construction, if any raised during the pendency of the suit by passing a decree of mandatory injunction. Therefore, the suit was filed by the plaintiff for the grant of Permanent Prohibitory Injunction and Mandatory injunction on the ground that the defendants are causing unlawful interference over the suit property and are encroaching upon best and valuable portion of suit land. Therefore, decree for permanent injunction and decree for Mandatory injunction by demolition of the structure was sought from the learned trial Court.

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The suit was contested by the defendants by

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taking various grounds such as maintainability, estoppel, cause of action, non-joinder and mis-joinder

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4 2026:HHC:6164 )

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etc. On merits, it was stated that the replying defendants have already raised the construction in 2009 on the share of his aunt which was purchased by him. The allegation of construction was specifically denied and it was submitted that they are carrying out only repairs. It was averred in the written statement that the plaintiff has got no cause of action and by concealment of the facts and in order to pressurize the defendants the present suit has been filed.

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The plaintiff filed replication to the written statement and reiterated the contents of the plaint.

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Learned trial Court on 10.06.2022 framed

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the following issues:

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Whether the Plaintiff is entitled for the relief of permanent prohibitory injunction to restrain defendant from causing unlawful interference on suit land and encroaching valuable portion of the suit land by raising construction, as prayed for? OPP.

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

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Whether the suit of the plaintiff is not maintainable in present form, as alleged? OPD.

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Whether the plaintiff has no enforceable cause of action, as alleged? OPD.

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

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Relief.

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Thereafter, learned trial Court directed the parties to adduce evidence in support of their contentions and vide its judgment and decree dated 08.08.2024, learned Civil Judge Court No.3, Mandi, District Mandi dismissed the suit as preferred by the plaintiff/appellant.

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Feeling dissatisfied, the plaintiff /appellant preferred the appeal in the Court of leaned District Judge, Mandi, District Mandi dated 17.09.2024. The learned Appellate Court vide its judgment and decree dated 05.03.2025 dismissed the appeal preferred by the plaintiff/appellant.

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Still feeling aggrieved, plaintiff/appellant has approached this Court by filing the present Regular Second Appeal.

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It is contended by the learned counsel for the appellant that the judgment and decree as passed by the Courts below are perverse and based on no evidence. He submitted that the suit land being joint between the parties therefore the land is required to be preserved till the time partition is effected between the parties .

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He further submitted that the plaintiff has placed on record material evidence in order to substantiate its contention that the defendant is trying to encroach over the land exceeding his share that too which is the best valuable portion over the suit land.

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On the other hand Mr. Aashish Verma,learned counsel for the defendants/respondents has defended the judgments as passed by the Courts below and he has submitted that there are concurrent findings of fact by both the Courts below and there is no question of law much less substantial questions of law arises in the present appeal. Therefore, on that count, the present appeal deserves to be rejected. He further submitted that Courts below has rightly appreciated the oral as well as documentary evidence placed on record and has rightly dismissed the suit filed by the plaintiff which has been further affirmed by the learned District Judge, Mandi, H.P.

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I have heard the learned counsel for the parties and have gone through the case file. With the consent of the learned counsel for the parties, the appeal is heard finally at the admission stage.

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From the perusal of the case file, it reveals that the plaintiff has filed the suit for Permanent Prohibitory and Mandatory Injunction on the ground that the suit land is joint between the parties and other co-sharers and the defendant is trying to raise the construction on the best and valuable portion of the suit land at his back since he is residing in Shimla and Chadigarh. The plaintiff has placed on record copy of jamabandi for the year 2014-15 Ext. PW1/B wherein the suit land is reflected to be in joint ownership of the parties.

¶41

In order to substantiate his claim, the plaintiff Sh. Baldev Singh entered in the witness box as PW-1 and tendered in evidence Ext.PW1/A. He has stated that prior to 1998, he was residing with his family at Shimla. There is an admission on his part that since 1986-87, he was residing in Shimla. He denied that Sonu, who is his nephew had raised construction of the new house, however, self stated that it must have been raised by the present respondent. He admitted that the new house was constructed in the year 2009. He further admitted that other than the old and new

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houses, there is no other house of the defendant. He further denied that defendant did not raise any new construction in the year 2020.

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The statement of the plaintiff clinches the entire case since he has categorically admitted that he is out of possession over the suit land since 1986-87 and has been residing in Shimla and Chandigarh. The plaintiff has failed to pin point and demonstrate what kind of interference and construction have been raised by the defendants over the suit land and in what manner such construction defeats his right and same is prejudicial or adverse to the interest of the plaintiff The plaintiff has failed to establish that on account of the alleged construction it amounts to ouster of the plaintiff and that the rights of the plaintiff have been prejudiced. In order to prove its case, the plaintiff was required to establish that the alleged construction being raised by the defendants is deterimental to his rights. In order to get the equitable relief, the plaintiff was required to establish his case beyond reasonable doubt and by merely stating that land in question is joint and

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the defendant is raising the construction to his to his disadvantage, it does not prove his case in any manner. 16. The defendants in order to rebut the claim of the plaintiff examined DW-1 Sh. Dayal Singh and DW-2 Hari Singh, who have denied the case of the plaintiff.

¶47

It has come on record that the parties were litigating with each other and prior to institution of the present suit, the present defendant had also filed Civil Suit for Permanent Prohibitory Injunction against the present plaintiff on 08.01.2021. The said suit filed by the present defendant was dismissed on 18.05.2024. In that suit the same and similar averments were made by the present defendant with regard to lawful interference over the best valuable portion of the suit property. Admittedly, the suit land is joint between the parties. However, the plaintiff has failed to establish how and in what manner the construction if any raised by the defendant is detrimental to his rights. The son of the defendant purchased the share of sister of the parties and raised the construction in the year 2009. As per the averments as made by the witnesses of the defendants,

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10 2026:HHC:6164 )

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the renovation work was started and the same was got being done and in this back ground, plaintiff filed the present suit by alleging that defendants are causing interference on the best portion of the suit property.

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The Courts below have rightly come to the conclusion that the plaintiff has failed to establish his case by specifically proving or pleading that the act of raising construction by the defendants who is in possession of the suit land amounts to his ouster and same is prejudicial or adverse to the rights of the plaintiff. In case any of the party is aggrieved, in that event the best course is to apply for the partition of the suit land. The Courts below have rightly taken into consideration the fact that the mere construction on behalf of co-sharer does not amount to ouster of the other co-sharer.

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Case law as relied upon by the learned Trial Court and the learned First Appellate Court clearly clinches the controversy in question. The relief of injunction is discretionary relief and the party is bound to establish its case beyond reasonable doubt in order to have the discretion in its favour.

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11 2026:HHC:6164 )

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Ld. Counsel for the respondents has rightly pointed out that the findings as returned by the Courts below are findings of fact and do not call for any interference by this Court.

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The Hon’ble Apex Court in its various decisions have laid down the parameters for dealing with the cases under the provisions of Section 100 of C.P.C. Section 100 of C.P.C. reads as follows:

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“100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

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(2) An appeal may lie under this section from an appellate decree passed ex parte.

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(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

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(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

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(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be

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allowed to argue that the case does not involve such question:

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Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”

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It is thus clear that under Section 100 C.P.C.,

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this Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings are erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Hon’ble Apex Court or based upon inadmissible evidence or without evidence. The High Court in the Second Appeal can interfere with the findings of the trial Court as well as the first appellate Court, as the case may be, when such findings are recorded without proper appreciation of the documents or failure to follow the decisions of Hon’ble Apex Court and acted on assumption not supported by evidence.

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It is settled law that High Court can go into the findings of the fact only if first appellate court has not considered the law and evidence or has considered the inadmissible evidence or different evidence.

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The Hon’ble Apex Court has repeatedly held that the concurrent findings of fact cannot be disturbed in a routine manner until and unless judgments and decrees passed by the courts below are perverse and of no evidence.

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In the present case, there are concurrent findings of fact rendered by the learned Courts below and the scope of interference in the concurrent finding of fact, as per the various judgments of the Hon’ble Apex Court, is very narrow and limited. The Hon’ble Apex Court has held in its various decisions that the High Court cannot re-appreciate the evidence to substitute its own view for a plausible finding of fact arrived at by the first appellate court.

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Reference in this regard is made to the judgment of the Hon’ble Apex Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521,

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wherein it has been held as under:

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“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 reappreciating the evidence just to replace the findings for the lower courts.

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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.”

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Similarly, the Hon’ble Apex Court in Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under:

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“10. We would only add that (a) it is the duty cast upon the High Court to formalate 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 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

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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.

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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.2 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.”

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In Kondiba Dagadu Kadam vs. Savitribai

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

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“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.

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16 2026:HHC:6164 )

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It is true that the lower appellat 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 iss 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.”

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Therefore, this court is of the opinion that

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the Courts below have rightly adjudicated the controversy in question and have rightly thrashed the material on record. There is no question of law much less any substantial question of law, which arises in the present appeal. Therefore, the present appeal being devoid of any merit deserves to be dismissed with no order as to costs.

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17 2026:HHC:6164 )

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Pending application(s), if any, also stands

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disposed of.

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(Romesh Verma), Judge

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6^th March, 2026 (veena)

Baldev Singh v. Dayal Singh and Anr.

Case brief

What is this about?

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Baldev Singh v. Dayal Singh and Anr.

Case brief

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