2025:HHC:27872 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.291 of 2015 Reserved on: 04.08.2025 Decided on: 19.08.2025 Narinder Kumar ...Appellant Versus State of H.P. & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes For the appellant: Mr. Basant Pal Thakur, Advocate. For the respondents: Mr. Gautam Sood, Deputy Advocate General. Satyen Vaidya, Judge This Regular Second Appeal has been filed against the judgment and decree dated 31.03.2015 passed by learned Additional District Judge (I), Una in Civil Appeal No.50/2014, whereby the judgment and decree dated 30.12.2013 passed by learned Civil Judge (Junior Division), Court No. IV, Una in Civil Suit No.147/2006 was partially set aside. 2. The appellant herein was the plaintiff in original suit No.147 of 2006 decided by learned trial Court vide judgment and decree dated 30.12.2013. The suit was filed against respondents herein for decree of permanent prohibitory and mandatory injunctions with respect to the land comprised in Khewat No.83, Khatauni Nos.154 & 165, Khasra Nos.695, 696, 704, 707, 708, 2 2025:HHC:27872 725 & 705 situated in village Batuhi, Tehsil and District Una (for short, “the suit land”). 3. The parties hereafter shall be referred to by the same status as they held before learned trial Court. 4. The suit was filed by the plaintiff on the premise that though, the land comprised in Khasra No.705 was owned by him, but the same was in possession of the defendants as a public road stood constructed thereon. It was alleged that other parts of the suit land were so situated that these abutted the aforesaid road in Khasra No. 705. As per plaintiff, the defendants had attempted to construct a culvert on the road comprised in Khasra No.705 and in case they were allowed to do so, the entire rain water from the adjoining areas will drain through the culvert on to the suit land and would render the same useless. 5. The defendants had filed their written statement. They admitted that a culvert was proposed for construction. The defendants allegedly had spent sum of Rs.3,00,000/- for construction of the drainage. They did not specifically deny the fact that the entire water collected through culvert would flow through the suit land making it useless. 6. On the pleadings of the parties, learned trial Court had framed the following issues: 3 2025:HHC:27872 “1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed? OPP. 2. Whether the plaintiffs are entitled for the alternate relief of mandatory injunction as prayed for ?OPP. 3. Whether the suit is not maintainable as alleged?OPD. 4. Whether the plaintiffs are estopped to file the present suit by their act, conduct and acquiescence, as alleged? OPD. 5. Whether the plaintiffs are having no cause of action to file the present suit? OPD. 6. Whether the suit is bad for non- compliance of provisions of S.80 CPC? OPD. 7. Relief.” 7. Issue No.1 was answered in affirmative, whereas all other issues were answered in negative. The suit of the plaintiff was decreed and decree in the following terms was passed. “21. In view of discussion held above, the suit of the plaintiff is decreed with costs. The defendants are restrained from changing the existing nature and character by raising any sort of construction or throwing the rainy water by making bridge (Pulli), usurping possession, ousting the plaintiffs from the land measuring 0- 80-72 Hectares comprised in Khewat No. 83, Khatauni Nos. 164 and 169 bearing Khasra Nos. 695, 696, 704, 707, 708, 725 and 705 as entered in the jamabandi for the year 2000-01, situated in village Batuhi, Tehsil and District Una HP. The defendants are also directed to pay compensatory cost of Rs. 3000/- to the plaintiff. Decree sheet be prepared accordingly. The file after due completion be consigned to record room.” 8. The defendants assailed the decree passed by learned trial Court by filing appeal under Section 96 of the Code of Civil Procedure before learned District Judge, Una, which was 4 2025:HHC:27872 assigned for the disposal to learned Additional District Judge-I, Una. 9. The first appellate Court accepted the appeal partly. The decree passed by learned trial Court to the extent it restrained the defendants from constructing culvert on Khasra No.705 and imposed the costs of Rs.3,000/- was set aside, rest of the decree was maintained and affirmed. 10. The instant appeal was admitted on 28.09.2018 on the following substantial question of law: “Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by Court below are erroneous and as such the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable?” 11. I have heard learned counsel for the parties and have also gone through the record carefully. 12. Both the Courts have held the plaintiff to be owner of the suit land. With respect to Khasra No.705, the findings are that though, it was owned by the plaintiff, but was in possession of the defendants as a road had been constructed thereon. 13. Learned trial Court had passed the decree by holding that the construction of road by defendants on Khasra No.705 did not vest them with license to construct a culvert in such a manner so as to endanger the very existence of the suit land. 5 2025:HHC:27872 14. In order to test the findings returned by learned trial Court, I have gone through the evidence on record and have found such findings to be duly borne from the material placed and proved on record. Importantly, the witness of the defendants Rajesh Kumar, Assistant Engineer (DW-1) had made clear admissions in his cross-examination to the effect that in case the defendants would construct culvert and drain, the rain water from far of places will flow through the culvert into the suit land and in such event the suit land would be rendered useless. 15. Thus, in view of the fact that the title of the plaintiff over the suit land was not disputed and further that the witness of the defendants had made categoric admissions, the judgment and decree passed by learned trial Court could not be faulted with. 16. Perusal of the judgment passed by learned first appellate Court reveals that the said Court has excluded Khasra No.705 from the purview of decree only for the reason that it was in possession of the defendants. 17. The view taken by learned first appellate Court cannot be sustained for the reason that the factum of possession of the defendants on Khasra No.705 was not relevant to the controversy. The grievance of the plaintiff was against the construction of drainage and culvert by the defendants in such a 6 2025:HHC:27872 manner, which would cause loss to the suit property. Even if Khasra No.705 was owned by the defendants, it would not give them right to construct culvert on the road in such a manner which would endanger the valuable property of plaintiff or any other person. Noticeably, the findings of facts recorded by learned trial Court were not interfered with by learned first appellate court. That being so, the modification of the decree passed by learned trial court, in the manner it has been done by learned first appellate court, would practically nullify the effect of remaining part of the said decree also. 18. In light of above discussion, the judgment and decree passed by learned first appellate Court requires interference as it reflects perversity on account of being in utter derogation of proved facts of the case. The substantial question of law is accordingly decided in affirmative. 19. In result, the appeal is partly allowed. The judgment and decree dated 31.03.2015 passed by learned Additional District Judge (I), Una in Civil Appeal No.50/2014 is set aside to the extent it omitted Khasra No.705 from ambit of decree passed by learned trial Court. Accordingly, the judgment and decree dated 30.12.2013 passed by learned Civil Judge (Junior Division), Court No. IV, Una in Civil Suit No.147/2006 is affirmed, save and 7 2025:HHC:27872 except that part of the decree which imposed costs upon the defendants. 20. The appeal is accordingly disposed of along with pending application(s), if any. (Satyen Vaidya) Judge August 19, 2025 (vt)