Sher Singh Vs Chillu Devi and Another

Judge, Kinnaur District at Rampur Bushahr, H.P. Kullu, District Kullu, H.P. in Civil Appeal No. 24 of 2024, whereby the appeal filed by the present respondents/plaintiff was allowed and the judgment and decree, as passed by learned Senior Civil Judge,

¶13

Rampur Bushahr, District Shimla, H.P., dated 04.06.2024, was set

¶14

1 Whether reporters of the local papers may be allowed to see the judgment?

¶15

2

¶16

( 2026:HHC:15096 )

¶17

aside, whereby the suit filed by the plaintiffs/respondents for permanent prohibitory injunction was dismissed.

¶18

The brief facts of the case are that the present respondents/plaintiffs filed a suit for permanent prohibitory injunction before learned trail Court on 12.05.2017. As per the averments made in the plaint, it was stated that the suit land has been recorded as Abadi Deh and the predecessor in interest of the plaintiff late Shri Durga Dass had his residential house thereon from the time of his forefather and the defendant was also having his house over the land comprised in Khasra No. 464 adjoining to the land of the plaintiffs. The plaintiffs demolished their old house and got constructed a new house in the year 2002. There was another vacant land bearing Khasra No. 462 measuring 00-00-18 hectares owned by the State of H.P. in front of the land of the parties to the suit and the said land has been bifurcated into two separate khasra numbers bearing khasra No. 1182/462, measuring 0-00-54 hectares and Khasra No. 1183/462 measuring 0-00-64 hectares. Vide mutation No. 155 dated 17.09.1996, the land bearing Khasra No. 1182/462 measuring 0-00-54 hectares has

¶19

3

¶20

( 2026:HHC:15096 )

¶21

been transferred in favour of the revenue department and the remaining left over land bearing khasra No. 1183/462 measuring 0-00-64 hectares has been left as vacant as before.

¶22

As per plaintiffs, the revenue ofÏcials in connivance with the defendant, without their knowledge and consent got the nature of land changed in the revenue record and both the lands denoted by Khasra Nos.1182/462 and 1183/462 shown the same as Abadi Deh. Taking undue advantage of the wrong and illegal revenue entries showing the land as Abadi Deh instead of government land, the defendant encroached the land comprised in Khasra No.1183/462 measuring 0-00-64 hectares by extending construction of his house over the same. Since, such illegal construction is to obstruct the passage, air and light of the house

¶23

of the plaintiffs and the said illegal act was objected to by the plaintiffs but the defendant claims that the said land is Abadi Deh and is possessed by the defendant. Therefore, the suit was filed for permanent prohibitory injunction for restraining the defendant from raising construction and causing obstruction with respect to

¶24

the land comprised in Khata/Khatauni No. 216 min/363, Khasra

¶25

4

¶26

( 2026:HHC:15096 )

¶27

No.1182/462 measuring 0-00-54 hectares and for mandatory injunction qua land comprised in Khasra No. 1183/462 measuring 0-00-64 hectares situated in Mauza Sarahan, Tehsil Rampur, District Shimla, H.P.

¶28

The suit was contested by the defendant by filing written statement raising various preliminary objections with locus standi, limitation etc. On merits, it was admitted that there was no house on Khasra No.465 till today, and only temporary shed was built on Khasra No.465. After the change in the revenue entries, the plaintiffs raised a structure on khasra No. 465 and had also encroached upon a part of Khasra No.464. The formation of two separate khasra numbers carved out from Khasra No. 462 has not been disputed being the matter of record. However, it has been stated that the defendant was owner in possession of Khasra No.462 measuring 0-01-18 hectare and had constructed his house on the portion of khasra No.462 and had left vacant space for garage and septic tank etc. All the averments as made in the plaint were refuted and denied.

¶29

5

¶30

( 2026:HHC:15096 )

¶31

Learned trial Court on 12.09.2018, framed the

¶32

following issues:-

¶33

“1. Whether the plaintiffs are entitled for decree of permanent prohibitory injunction, as prayed for? OPP.

¶34

Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD.

¶35

Whether the suit is barred by limitation, as alleged? OPD.

¶36

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

¶37

Whether this Court has no jurisdiction to try and entertain this suit, as alleged? OPD.

¶38

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

¶39

Whether the suit is barred by principle of res judicata, as alleged?OPD.

¶40

Relief.”

¶41

Learned trial Court directed the respective parties to

¶42

adduce evidence in support of their contentions and finally, vide

¶43

its judgment and decree dated 04.06.2024, the suit filed by the plaintiffs was dismissed. Learned trial Court after relying upon the

¶44

judgment passed by this Court in Jaram Singh vs. Santosh &

¶45

Another, RSA No. 407 of 2018 , decided on 29.05.2019 came to

¶46

6

¶47

( 2026:HHC:15096 )

¶48

conclusion that the suit for permanent prohibitory injunction based on easementary right without seeking declaration is not maintainable. Consequently, the suit filed by the plaintiff/respondents was dismissed.

¶49

Feeling dissatisfied, the plaintiffs/present respondents preferred an appeal before the Court of learned Addl. District Judge, Kinnaur District at Rampur Bushahr, H.P. on 12.07.2024. Learned first appellate Court vide its judgment dated 06.01.2025 allowed the appeal preferred by the present respondents/plaintiffs and set aside the judgment and decree as passed by learned trial Court by passing a decree to the effect that the plaintiffs are entitled to the relief of mandatory and permanent prohibitory injunction regarding land bearing Khasra No. 1182/462 measuring 0-00-54 hectares with further direction to the defendant to restore the suit land by removing the construction as raised by him.

¶50

Feeling aggrieved, the defendant has approached this Court by invoking the provisions of Section 100 of the CPC. It is contended by Shri Gautam Sood, learned counsel for the

¶51

7

¶52

( 2026:HHC:15096 )

¶53

defendant/appellant that the judgment and decree as passed by the learned first appellate Court is inadmissible in the eyes of law since the simplicitor suit for injunction is not maintainable in view of the law laid down by this Court in Jaram Singh vs. Santosh and another, RSA No. 407 of 2018, decided on 29.05.2019 also reported in (2020)1 Civil Court Cases 366 . It is further contended by Mr. Gautam Sood, learned counsel for the defendant that in view of

¶54

the exposition of law as laid down by this Court in above mentioned judgment the simplicitor suit for injunction claiming easementary rights is not maintainable in the present form.

¶55

Faced with this situation, Mr. Ajay Kumar Dhiman, learned counsel for the plaintiffs/respondents though halfheartedly tried to justify the maintainability of the suit. However, after arguing for some time, he seeks permission of this Court to withdraw the civil suit itself which was filed before the learned trial Court with liberty to file fresh suit under the relevant provisions of law, in accordance with law. The said prayer is not opposed by Mr. Gautam Sood, learned counsel for the defendant/appellant.

¶56

8

¶57

( 2026:HHC:15096 )

¶58