2025:HHC:33310 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 283 of 2015 Reserved on: 09.09.2025 Decided on: 24.09.2025 ------------------------------------------------------------------------------------- Sanjeev Kumar ......Appellant. Versus Sanjay Kumar .....Respondent. ------------------------------------------------------------------------------------- Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting?1 No For the appellant: Mr. G.D. Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate. For the respondent: Mr. Ankush Dass Sood, Senior Advocate, with Mr. Gaurav Chaudhary and Mr. Ruchirangad Singh, Advocates. ------------------------------------------------------------------------------------ Satyen Vaidya, Judge This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant/plaintiff against judgment and decree dated 30.04.2015, passed by learned District Judge, Hamirpur, (H.P.) in Civil Appeal No. 96 of 2012 whereby the judgment and decree dated 19.03.2012 passed by learned Civil Judge (Senior Division), Hamirpur, H.P. in Civil Suit No. 95 of 2008 has been reversed and set-aside. 1 Whether reporters of print and electronic media may be allowed to see the order? 2 2025:HHC:33310 2. The parties hereinafter shall be referred to by the same status as they held before the learned trial Court. 3. The land comprised in Khata No. 65, Khatauni No.198, Khasra No. 1196/444, measuring 00-03-32 hectares in Up-Mohal Krishna Nagar, Ward No.1, Hamirpur (for short, “suit land”), is owned and possessed by the plaintiff. 4. The land comprised in Khasra No. 1195/444 measuring 192 sq. meters adjoins the suit land and is owned and possessed by the defendant. 5. On 02.06.2008 the plaintiff instituted the suit for permanent prohibitory injunction against the defendant with a prayer to restrain him from interfering in any manner whatsoever in the suit land and from changing its nature by raising construction, cutting trees etc. A prayer in alternative was also made for the decree of vacant possession of the suit land, in case defendant succeeded in forcibly occupying and raising construction of house or wall over the same. 6. The suit was filed with the averments that the defendant in the last week of May, 2008 had started to dig the suit land with intention to raise the construction thereon. It was alleged that the defendant had also started 3 2025:HHC:33310 cutting the trees and when the plaintiff had raised objection, he was threatened of dire consequences. The defendant was further alleged to have started collecting the building material near the suit land to make preparations for raising construction thereon. 7. The defendant filed written statement. He specifically denied the allegation of having done anything on the suit land. He submitted that a demarcation had been got carried out by the defendant of his land on 12.01.2008 which was confirmed on 12.02.2008. After ascertaining the boundaries of his plot, the defendant had raised boundary wall of his land much prior to filing of the suit. The defendant specifically mentioned that the construction work of boundary wall stood completed on 25.05.2008. According to him, no objection was raised by the plaintiff or any other person when the boundary wall was being raised and subsequently, the defendant had been dragged into unnecessary litigation. 8. The plaintiff filed replication and made an averment that the demarcation got conducted by the 4 2025:HHC:33310 defendant had already been assailed by the plaintiff in appeal. 9. Learned trial Court framed the following issues on 15.09.2008:- 1. Whether the plaintiff is the owner in possession of the suit land? OPP 2. Whether the defendant is interfering with the suit land without any right to do so? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff has not come to the court with clean hands? OPD 7. Relief. Issues No. 1 and 2 were decided in affirmative and remaining issues were answered in negative. The suit of the plaintiff was decreed in following terms: “17. The cumulative effect of the aforesaid discussion and findings is that the plaintiff succeeds in the present suit. Accordingly, the suit of the plaintiff stands decreed with costs. The defendant is directed not to interfere in the suit land by raising construction, cutting trees and in 5 2025:HHC:33310 any manner. The decree sheet be prepared. File, after the needful, be consigned to the Record Room.” 10. The defendant assailed the judgment and decree passed by learned trial Court by filing appeal under Section 96 of the Code. The said appeal has been allowed by learned District Judge, Hamirpur vide impugned judgment and decree dated 30.04.2015 and the suit of the plaintiff has been ordered to be dismissed. 11. The instant appeal was admitted for hearing on following substantial questions of law on 12.08.2015: “Whether on account of misreading, misapprecation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgement and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?” 12. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 13. Learned trial Court had proceeded to pass a decree of permanent prohibitory injunction in favour of the plaintiff only on the premise that since, both the parties had common boundaries of their respective lands, the 6 2025:HHC:33310 apprehension of the plaintiff could not be said to be unreasonable and the decree for permanent prohibitory injunction could be passed on apprehension alone. 14. Learned first appellate court, on the other hand, has held that the plaintiff had failed to establish a cause of action in his favour to seek decree of permanent prohibitory injunction and thus, according to said court, learned trial court had not adopted the correct approach. 15. Both the Courts on the basis of evidence on record, have found that the defendant had completed the construction of boundary wall on 25.05.2008. The suit was filed on 02.06.2008, meaning thereby, that on the date of filing of suit, the defendant had already completed the construction of boundary wall. This fact has unambiguously been admitted by the plaintiff himself while facing the cross- examination. Whereas, the plaintiff had filed the suit by alleging that the defendant had started digging the suit land and cutting the trees in last week of May, 2008. 16. The defendant appeared as his own witness on 26.07.2011 i.e. almost after three years of the filing of the suit. He deposed that at the time of filing of the suit, he had 7 2025:HHC:33310 already raised boundary wall and before that he had obtained demarcation to ascertain the boundary of the land. In the examination-in-chief, he had categorically stated that he had completed the construction of his house on the date of making depositions before the Court. 17. Thus, what had emerged before learned trial Court at the time of passing judgment was that before institution of plaint, the boundary wall had already been raised and after filing of the suit, the defendant had completed the construction of his house. Though, the plaintiff had made a prayer in alternative for decree of possession but during the entire trial of the suit nothing was brought on record that the construction raised by the defendant was on the suit land. Neither any amendment in the plaint was sought nor the plaintiff led evidence to this effect. In his deposition made before learned trial Court on 04.01.2010, the plaintiff had narrated only those facts which he had averred in the plaint. 18. In light of facts noticed above, the plaintiff has rightly been denied the decree for permanent prohibitory injunction by learned first appellate Court. For decree of prohibitory injunction, mere establishment of right is not 8 2025:HHC:33310 sufficient, proof of its violation is also necessary. Though, at the time of institution of plaint, mere apprehension may be sufficient but for passing of a decree for permanent prohibitory injunction, both the above ingredients are required to be proved. 19. Admittedly, the plaintiff had not made any effort to get the land demarcated. The demarcation got conducted by the defendant had been challenged by the plaintiff. The result of such challenge was not made known to the Court. Before the learned trial Court and first appellate Court, the plaintiff has alleged that the demarcation got conducted by the defendant was not binding on him as he was neither called nor was present at the time of demarcation. However, it has been established by way of oral statement of witnesses of the parties that the father of the plaintiff was present at the time of demarcation. 20. Be that as it may, the defendant had prima facie shown his bonafide. He had got the boundaries ascertained before raising the construction. On the other hand, the case of the plaintiff even till the judgment passed by learned first appellate Court and even till date has not changed. 9 2025:HHC:33310 21. Learned trial Court did not find it necessary to appoint Local Commissioner in light of material available on record. The plaintiff had not assailed the order of rejection. He did not prefer any cross objection in the first appeal filed by defendant. The impugned judgment and decree also does not reveal that the plaintiff had sought the indulgence of learned first appellate court under Order 41 Rule 33 of the Code to assail the order of rejection of prayer for appointment of Local Commissioner. 22. Further, learned trial Court had not found any trustworthy evidence which could establish the allegation of encroachment on the suit land. It was also specifically held that the defendant had completed the boundary wall on 25.05.2008. Thus, according to learned trial Court, neither the plaintiff had been able to prove any encroachment having been done by the defendant upon the suit land before filing of the suit nor thereafter. The plaintiff has nowhere stated after filing of the suit that the defendant had raised any construction beyond the boundary wall which stood raised till 25.05.2008. All these findings also remained unchallenged by the plaintiff either by filing independent appeal or cross-objections. 10 2025:HHC:33310 23. Learned Senior Advocate, representing the plaintiff has laid much emphasis for appointment of Local Commissioner even at this stage. In light of what has been discussed above, I do not find any merit in such submission. The findings of learned trial Court that there was no encroachment on the suit land has attained finality and thus no fruitful purpose shall be served by the appointment of Local Commissioner. 24. In result, the substantial question of law is answered against the plaintiff. The appeal fails, judgment and decree dated 30.04.2015, passed by learned District Judge, Hamirpur, (H.P.) in Civil Appeal No. 96 of 2012, is affirmed. 25. The appeal stands accordingly disposed of so also the pending application(s), if any. 26. Decree Sheet be prepared accordingly. 27. Records be sent back forthwith. 24th September, 2025 ( Satyen Vaidya) (GR) Judge