IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.66/2023 Date of Decision: 01st January, 2026. Jaimal .....Appellant Versus Om Prakash and Others. …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Kashmir Singh Thakur, Sr. Advocate with Mr. Harpreet Singh, Advocate. For the Respondents: Mr. Kulwant Chauhan, Advocate. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 15.10.2022, passed by the learned Additional District Judge-III, Kangra at Dharamshala, Camp At Palampur, District Kangra, HP in Civil Appeal No.22- P/XIII/2018, affirming the judgment and decree dated 13.09.2017, passed by the learned Civil Judge (Senior Division), Palampur, District Kangra, HP, in Civil Suit No.232 of 2011. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned trial Court. 3. Briefly stated, the facts giving rise to the present appeal are that the plaintiff-appellant had filed a suit for permanent prohibitory injunction restraining the defendants-respondents from interfering, taking forcible possession, raising construction, 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 encroaching upon, extending projection of their structure, causing any nuisance on land comprised in Khata No. 94, Khatoni No. 144, Khasra No.540/164, measuring 00-01-58 hectares, situated in Mohal Bharoon, Mouja Sidhpur-Rani, Tehsil Palampur, District Kangra, H.P., and in the alternative for possession by way of demolition of encroachment. 4. The case of the plaintiff was that he is the exclusive owner in possession of the suit land, which he uses as a passage to his house, and the defendants, being adjoining landowners and strangers to the title, have no right over it. He alleged that defendant No.1 started unlawful interference by digging and collecting material to encroach upon the land, and defendants No. 2 to 4 were diverting water towards the suit land, causing nuisance. 5. The defendants contested the suit, asserting that after a Khangi partition, a portion of the land (Khasra No.540/164/9) was kept as a 'Gair Mumkin Rasta' (common passage) for the use of all co-sharers, including the parties. They claimed that the plaintiff had executed a sworn affidavit agreeing that this 2 meter wide passage could be used by all co-sharers, including the defendants, and they had been using it since without objection. They denied all allegations of encroachment or nuisance 6. On the pleadings of the parties, the following issues were framed by the learned trial court:- 3 1. Whether plaintiff is entitled for decree of permanent prohibitory injunction as prayed for ?OPP 2. Whether plaintiff in alternative is entitled for a decree of possession by way of demolition, as prayed for ?OPP 3. Whether suit of the plaintiff is not legally maintainable ?OPD 4. Whether plaintiff has no cause of action to file the present suit ?OPD 5. Whether plaintiff has no locus standi to file the present suit ?OPD 6. Whether plaintiff is estopped from filing the present suit due to his own act & conduct ?OPD 7. Relief. 7. Upon considering the evidence, the trial court decided the issues against the plaintiff and dismissed the suit. 8. Feeling aggrieved, the plaintiff preferred the first appeal. It was contended before the First Appellate Court that the impugned judgment was against the law and evidence. The findings were alleged to be incorrect as the plaintiff was the exclusive owner. It was argued that the report of the Local Commissioner, which indicated that defendant No.1 had encroached upon the plaintiff's land to the extent of half a meter, was ignored. 9. The appellant argued that the defendants admitted being in possession of the total land they bought, and the trial court's view that the path could be used by the respondents was contrary to evidence. The testimony of PW-2 Kishori Lal regarding encroachment was also overlooked. Heavy reliance was placed by the trial court on an affidavit which was never proved in accordance with law, as it was not attested, and the plaintiff had stated that the respondents did not obey its 4 conditions, hence it was not attested. This affidavit, being no document in the eyes of law, could not form the basis of a finding. The path in dispute was argued not to be a common passage. The evidence of the respondents was not corroborated. It was pointed out that the trial court itself, in its judgment, mentioned some encroachment, yet decided against the cause of action. The judgment was asserted to be based on surmises. 10. The learned counsel for the appellant further contended that even if the plaintiff executed the affidavit, since the respondents failed to adhere to its terms, it remained unattested and no weight could be attached to it. The categorical report of the Local Commissioner regarding encroachment was ignored. A prayer was made to set aside the trial court's judgment and decreed the suit. 11. Per contra, the learned counsel for the respondents supported the trial court's findings as reasonable and based on the record. It was contended that the plaintiff himself admitted the execution and contents of the affidavit, acknowledging the suit land as a path for all co-sharers. There was no other path to the house of defendant No.1, creating an easement of necessity. Further, no evidence was brought on record to prove the allegations of water diversion and damage by defendants No. 2 to 4. Dismissal of the appeal was prayed for. 5 12. Upon consideration of the submissions, evidence, and record, the Learned First Appellate Court, however, dismissed the appeal, affirming the findings of the trial court. Being aggrieved by the concurrent findings of both the courts below, the appellant has now preferred the present second appeal. 13. Heard counsels for the parties, perused the impugned judgements. 14. The plaintiff, in his testimony as PW1, asserted exclusive ownership and possession of the suit land, a path comprised in Khasra No.540/164, alleging attempts at encroachment and nuisance by the defendants. Crucially, however, in his cross-examination, he admitted several pivotal facts. He conceded that the suit land is indeed a path, that it was previously jointly owned with the defendants, and that a private partition (Khangi partition) was effected between them. Most significantly, he admitted the execution of an affidavit, signed by both himself and the defendants, wherein he undertook to have no objection to the defendants using this very path. His explanation that the affidavit remained unattested because the defendants did not agree to its conditions is unconvincing and does not negate the binding nature of the admission and the obligation created by his own undertaking. The conduct of the plaintiff, in both executing this document and subsequently withholding its original from the court, indicates a conscious concealment of a material 6 understanding between the parties regarding the user of the path. 15. The defendants' case, supported by the testimonies of DW1 and DW2, is that the suit land was specifically earmarked as a common passage ('Gair Mumkin Rasta') during the Khangi partition for the benefit of all co-sharers, including themselves. The documentary evidence, particularly the copy of mutation No. 197 (Ex.D2) and the note in the Jamabandi (Ex.D4), corroborates the fact that the suit land was kept as a path. The defendants have consistently maintained that they have no alternative access to their houses and have been using this path, a fact not credibly disproved by the plaintiff. 16. Regarding the plaintiff's alternative prayer for possession by demolition of encroachment, the evidence is insufficient to sustain the claim. While the report of the Local Commissioner (PW2) suggested a minor encroachment, it also explicitly records that the defendant Om Parkash handed over possession of the concerned portion to the plaintiff at the spot. Consequently, no subsisting encroachment on the path itself has been established by the plaintiff. 17. In light of the foregoing, the plaintiff's claim to restrain the defendants from using the suit land is fundamentally flawed. His own admissions establish that the path was a subject of a prior arrangement, and he granted a right to the defendants to use it. Having extended this right, he is estopped from resiling 7 from his own undertaking and attempting to curtail the defendants' use. Furthermore, a party who approaches the court seeking the equitable relief of injunction must do so with clean hands. The plaintiff's suppression of the material fact of the executed affidavit demonstrates a lack of bona fides, disentitling him to such discretionary relief. 18. The plaintiff has not established a case for permanent prohibitory injunction, as the defendants are exercising a right derived from the plaintiff's own admission and the historical arrangement of the property. The alternative claim for possession by demolition also fails for want of proof of any subsisting encroachment. While the plaintiff, as the recorded owner, had the locus standi to institute the suit, he has failed to prove a sustainable cause of action, and his conduct invites the application of the principle of estoppel. 19. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 01st January, 2026 (Gaurav Rawat/TB)