Seetu Alias Sita Ram Vs Sandeep Kumar

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2026:HHC:28023

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.65 of 2019 Decided on: 02.07.2026

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Seetu alias Sita Ram .Appellant Versus

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Sandeep Kumar

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...Respondent

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Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting?

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For the appellant: Mr. Goldy Kumar, Advocate. For the respondent: Mr. Sat Prakash, Advocate. Romesh Verma, Judge (oral)

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The present appeal arises out of judgment and decree as passed by learned Additional District Judge(III), Kangra at Dharamshala, District Kangra, H.P. dated 26.10.2018, whereby the appeal filed by the present respondent/defendant was allowed and the suit as instituted by the present appellant/plaintiff was ordered to be dismissed.

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The facts, as emerge, in the present case are that the present appellant/plaintiff filed a suit for grant of decree for permanent prohibitory injunction to the effect that the defendant and his relations, agents, servants, assignees and representatives have no right title or interest to change the nature of land by raising construction and by blocking the path of the

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plaintiff and also dispossessing the plaintiff from the suit land bearing Khata No.70, Khatauni Nos.78, 79 and 80, Khasra Nos.459, 460, 458, plots-3 area measuring 0-06-60 hects, situated at Mohal and Mauza Rajiana, Tehsil & District Kangra, H.P as entered in the jamabandi for the year 2007-08 without the consent of the plaintiff and other co-sharers. It has been stated in the plaint that the suit land is joint inter se the parties and other co-sharers and its jointness has not been severed as yet. No cosharer has an exclusive right to change the nature of the land by raising construction without the consent of the plaintiff and other co-sharers until and unless the land is partitioned by metes and bounds by the competent Court of law. The defendant is a clever and headstrong person, who has no regard for law. He has already covered more land than his share in front of National Highway by installing service station thereon in order to grab the best and valuable portion exceeding his share. Therefore, it was prayed that decree for permanent prohibitory injunction be passed against the defendant.

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The suit came to be resisted by the defendant by raising preliminary objections with respect to maintainability, cause of action, limitation, valuation etc. On merits all the averments as made in the plaint were refuted and denied. It has been stated in the written statement that the suit land is no more

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joint between the parties. The suit land is separated and all the co-sharers are in separate exclusive possession. The allegation of digging over the suit land was denied and it was stated that no construction is being raised by him over the suit land. It was stated that though in the revenue record, the parties are being shown as co-sharers, but the revenue entries are against the actual and factual position on the spot. That the suit land stood separated amongst all the co-sharers and all of them are in their separate and exclusive possession on the basis of family settlement/arrangement. It was stated that the defendant had constructed a service station over the suit land in the year 2004 along with open water tank which is run by the defendant since 2008. The defendant in the month of January 2011, put lintel over the water tank due to the apprehension as it may cause damage to the general public. Therefore, the defendant prayed for dismissal of the suit as preferred by the plaintiff.

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The appellant/plaintiff filed replication to the written statement and all the averments as made in the plaint were reiterated.

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Learned Civil Judge (Junior Division), Kangra, framed the issues on 26.09.2013 in the following manner:

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Whether the plaintiff is entitled for decree of permanent and prohibitory injunction restraining the

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defendant from changing nature, raising construction, dispossessing plaintiff from suit land and blocking path of the plaintiff? OPP

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Whether the plaintiff is entitled for mandatory injunction, in case the defendant succeeds in raising construction and blocking the path of the plaintiff? OPP

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Whether the plaintiff has no cause of action and locus-standi to sue? OPD

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Whether the suit is not maintainable and is time barred? OPD

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Whether the act, conduct, acquiescence and silence of the plaintiff is a bar to file the present suit? OPD

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Whether the suit land is separate on the spot by way of family settlement/arrangement and all co-sharers are in separate possession? OPD

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Whether the plaintiff has not come to the court with clean hands and suppressed the material facts? OPD

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Whether the suit has been filed merely on apprehension? OPD

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Whether the plaint has not been presented as per amended provision of C.P.C. ? OPD

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Whether the suit is bad for non-joinder of necessary parties? OPD

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Whether the suit has not been properly valued for the court fee and jurisdiction? OPD

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Relief

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Learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 30.12.2016, decreed the suit as filed by the plaintiff/appellant by passing a decree restraining the defendant from changing the nature of the suit land in dispute by way of raising construction and thereby dispossessing the plaintiff by way of digging the pit. Further, the defendant was directed to remove the pit raised over Khasra No.459 by which the passage of the plaintiff has been blocked.

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Feeling dissatisfied, the defendant Sandeep Kumar preferred appeal in the Court of learned Additional District Judge(III), Kangra at Dharamshala, District Kangra, H.P. on 08.03.2017. Learned first appellate Court vide its judgment and decree dated 26.10.2018, accepted the appeal as preferred by the defendant and the suit filed by the plaintiff was ordered to be dismissed.

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Feeling dissatisfied by the judgment and decree as passed by learned first appellate Court, the plaintiff has instituted the present regular second appeal.

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It is contended by Mr. Goldy Kumar, learned counsel for the appellant, that the impugned judgment as passed by learned first appellate Court is erroneous and liable to be quashed and set aside. He submits that the learned first appellate

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Court has wrongly accepted the appeal filed by the defendant and has wrongly dismissed the suit as preferred by the plaintiff. He would submit that after accepting the present appeal, the suit as filed by the plaintiff deserves to be decreed.

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On the other hand, Mr. Sat Prakash, learned counsel for the respondent has defended the impugned judgment and decree as passed by learned first appellate Court. He would submit that this Court will not interfere in the findings of fact as returned by learned first appellate Court while invoking the provisions of Section 100 of CPC. He submits that the learned first appellate Court has rightly determined the point in controversy and has rightly dismissed the suit filed by the plaintiff. 11. I have heard learned counsel for the parties and gone through the case file as well as records. 12. With the consent of parties, the present appeal is finally heard at the admission stage on the following substantial question of law:

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Whether the judgment and decree passed by learned lower appellate court is sustainable in the eyes of law when the same has been passed without considering the documentary and oral evidence, which has caused injustice to the appellant?

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The plaintiff/appellant had approached the learned trial Court by filing a suit for injunction on the ground that the suit land bearing Khata No.70, Khatauni Nos.78, 79 and 80, Khasra Nos.459, 460, 458, plots-3 area measuring 0-06-60 hects, situated at Mohal and Mauza Rajiana, Tehsil & District Kangra, H.P is recorded in the ownership and possession of the parties along with other co-sharers. The land is joint amongst the parties and the other co-sharers. It is the case of the plaintiff that no cosharer can be allowed to use the exclusive piece of land till the time the suit land is partitioned by metes and bounds. It has been stated that the defendants want to occupy the best and valuable portion of the suit land by digging pit for restoring water tank for his service station. It is the case of the plaintiff that the defendant has no right, title or interest to raise the construction on the joint land that too on the best portion of the suit land adjoining to the National Highway and also to block the path and dispossess the plaintiff without his consent.

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The defendant has raised the defence that the suit land stood separated on the spot by way of family settlement/arrangement and all the co-sharers are in their separate possession since the time of settlement. Though, in the revenue record the suit land is recorded jointly, however, the said record is against the actual position on the spot as the land stood

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separated by all the co-sharers and after the family arrangement, the co-sharers are in separate and exclusive possession on the suit land since the time of family settlement.

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The plaintiff, in order to corroborate his case, entered into the witness box and filed his affidavit Ext. PW-1/A. In his affidavit, he stated that the suit land is joint inter se the parties and is adjacent to the National Highway. The defendant has raised construction over his own share and now, in order to grab the best and valuable portion, he is trying to forcibly possess the land adjacent to National Highway. He stated that till the time the suit land is partitioned, the defendant may be restrained from digging, raising construction or blocking the path of the parties. The defendant, despite passing of the stay order by the Court, raised construction of service station, and in this process, he has blocked the path of the plaintiff, including his rights of ingress and egress. He stated that by means of mandatory injunction, the service station may be ordered to be removed from the suit land. In the cross-examination, he stated that he does not remember the khata number of the suit land. He stated that he does not know what the khasra number of the suit is. He admitted that it is correct that the co-sharers by means of bhai bant (family arrangement) are occupying their respective shares. He admitted that, as per bhai bant (family arrangement), the parties are

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occupying the suit land. He stated that he did not obtain any demarcation regarding the suit land. He stated that all the shareholders utilized the land being possessed by the respective co-sharers.

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The plaintiff examined Uttam Chand as PW-2, who has filed his affidavit Ext.PW-3/A. In his deposition, he stated that he knew the plaintiff. The disputed land is joint between the parties and is situated adjacent to the National Highway. The defendant had already occupied his share and now, in order to exceed it, he is raising construction of service station. He started construction work of service station in October 2011, as a result of which, the path of the plaintiff was blocked. Though, the plaintiff requested the defendant not to raise construction of service station, the defendant refused to accept the request of the plaintiff. Despite passing of stay order by the Court, the defendant has raised the construction of service station. By virtue of construction, the defendant has blocked the path being used by the plaintiff.

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In the cross-examination, PW-2 has stated that he does not know khata-khatauni or khasra numbers of the disputed land. He stated that he does not know that how many khasra numbers are in the suit. He admitted that the entire suit land is in

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the possession of the respective co-sharers and this fact was told by the plaintiff to him.

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PW-3 is statement of Sarseed. He also reiterated the averments as made by PW-1 and PW-2. In his crossexamination, he admitted that he does not know Khata-Khatauni and Khasra numbers of the suit land. He admitted that the parties are in possession of their respective shares over the suit land. Self stated that some of the occupants are having more land and some are having less land.

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PW-4 is the statement of Sudesh Kumari. She brought the record of case No.295/11, titled as Seetu alias Seeta Ram vs. Sandeep .

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PW-5 is the statement of Mr. Mukesh Chaudhary, Advocate, who was appointed as Local Commissioner to demarcate the suit land. In his statement, he has stated that in proceedings under Order 39 Rule 2A on the orders of the Court he visited the spot. On the spot both the parties along with Patwari Halka, Pradhan of Gram Panchayat and Hem Raj were present.

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In the cross-examination, PW-5 has stated that he does not know that how many khasras numbers are over the suit land. He admitted that in his report, he has not mentioned the scheme of demarcation. He admitted that in the report Ext. PW-

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4/A, he has not shown the permanent points. He admitted that the demarcation report has been prepared in accordance with the High Court Rules and Orders and instructions as issued by the Financial Commissioner, State of Himachal Pradesh.

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In order to rebut the case of the plaintiff, defendant Sandeep Kumar filed his affidavit, Ext. DW-1/A. In his affidavit, he stated that the suit land is mutually separated between the parties and all the co-sharers are in separate possession as per family arrangement since long and all are getting usufruct of the suit as per their shares since long time. He stated that neither he is doing anything on the spot nor he has got any intention to do so in future. He has been running the service station from the year 2004, which is much prior to the institution of the present suit.

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DW-2 is statement of Hitesh Kumar, who has stated in his deposition that the suit land has been mutually separated i nter se the parties and all co-sharers are in separate possession as per family settlement.

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DW-3 is the statement of Pritam Chand. He has also deposed on the same lines as has been done by PW-1 and PW-2 The plaintiff could not extract anything favourable from this witness.

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From the oral statements as led by the parties, there is categorical admission on the part of the plaintiff and his

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witnesses that the parties are in separate possession by means of family arrangement. The plaintiff, while entering into the witness box as PW-1, has categorically admitted that on account of bhai bant i.e. family partition, all co-sharers are occupying the suit land as per their respective shares. To this effect, the statement of Uttam Chand PW-2 is very important, as he has stated in his cross-examination that all co-sharers are in possession of their respective shares. The admission on the part of the plaintiff falsifies and demolishes his case. It proves that by virtue of family arrangement, the parties are enjoying the suit land by occupying their respective shares over the suit land. No material evidence has been placed on record to demonstrate that there is any vacant land in Khasra No.459 allotted to the plaintiff. Except for bald assertions as made in the plaint and the oral testimony, no substantive evidence has been placed on record to show that khasra No.459 came to the share of the plaintiff or that the defendant is occupying the same unauthorizedly and illegally. 26. From the perusal of jamabandi Ext. P-1 for the year 2007-08, it clearly shows that all the co-sharers are in separate possession of Khasra Nos.459, 460 and 458. Even the plaintiff, Seetu alias Sita Ram, is in possession of Khasra No.459. Therefore, the story as projected by the plaintiff has rightly been disbelieved by the learned first appellate Court. It has come in the

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evidence that all the co-sharers are occupying their respective shares and have also raised their constructions. Even in the report of the local commissioner, it has been pointed out that the defendant has raised construction over the same. Once, the other co-sharers have raised the construction, then the plaintiff cannot seek injunction by pinpointing the defendant. The plea of jointness and being a co-sharer cannot be permitted to be raised, in view of the fact that all co-sharers have utilized the suit land as per their own choice.

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The contention of learned counsel for the appellant that the report of the Local Commissioner proves that the path used by the plaintiff has been blocked by raising construction over the suit land. PW-5 Mr. Mukesh Chaudhary, Advocate, has entered into the witness box and specifically admitted that permanent points were not shown in his report Ext. PW-4/A. Since the report of the Local Commissioner is not in conformity with the rules and instructions as framed by the State of Himachal Pradesh, no reliance can be placed upon the same.

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Learned first appellate Court, after appreciating the oral as well as documentary evidence placed on record, rightly came to the conclusion that the plaintiff has failed to make out a case for grant of injunction in any manner. Therefore, being the final Court of facts, learned first appellate Court has adjudicated

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and determined the case in hand by appreciating the material placed on record, and this Court does not find any infirmity or illegality in the same.

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The Hon’ble Supreme Court in Civil Appeal No. 14138-14139 of 2024 in case titled Jaichand (dead) through LRs and others vs. Sahnulal and another, decided on 10.12.2024, has reiterated the principles as laid down under Section 100 CPC by holding that the High 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 were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. 30. In Kondiba Dagadu Kadam vs. Savitribai 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. 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

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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.”

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No other point urged by the learned counsel for the parties. 32. The substantial question of law is answered accordingly.

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

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( Romesh Verma ) Judge

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July 02, 2026 (vt)

Seetu Alias Sita Ram v. Sandeep Kumar

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Seetu Alias Sita Ram v. Sandeep Kumar

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