( 2025:HHC:29013 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 182 of 2025 Date of Decision: 27.08.2025. Sonia & Anr. .....Appellants. Versus Vicky & Anr. …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants : Mr. Jagat Pal, Advocate. For the Respondents : NEMO Bipin Chander Negi, Judge (oral). The appellants have filed the present Regular Second Appeal under Section 100 of Code of Civil Procedure against the judgment and decree passed by learned Additional District Judge (C.B.I. Court) in Civil Appeal No. 18-S/13 of 2024, dated 31.05.2025, whereby reversing the findings of the learned Civil Judge (Senior Division) Court No. 2, Shimla, District Shimla (H.P), passed in Civil Suit No. 103-1 of 2018/3, dated 20.05.2024. 2. For the sake of brevity the parties hereinafter shall be referred in the same way as they were referred before the learned trial Court for the convenience. The brief facts giving rise to the present second appeal are that the respondents, as plaintiffs, had initially instituted a civil suit on 14.03.2013 seeking a decree of permanent prohibitory injunction to restrain the defendants/appellants from interfering with their peaceful possession of the suit property, along with a mandatory injunction directing the defendants to restore the property to its rightful 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2( 2025:HHC:29013 ) position and to hand over its peaceful possession. The plaint was subsequently amended to plead that after the service of the court's order and the suit notice; the defendants had taken forcible possession of the suit premises. The plaintiffs' case, in essence, was that the suit property, known as Bishan Dass Building, was constructed by late Shri Bishan Dass and subsequently, the ground floor was constructed by Shri Bharatwaj, the husband of plaintiff No.1. 3. Upon the deaths of Shri Bishan Dass and later Shri Bharatwaj, the plaintiffs being his only legal heirs, inherited his estate. The defendant No. 1, being the brother of late Shri Bharatwaj, was alleged to have acted dishonestly. The parties, after the marriage of defendant No. 1, developed disputes which led to a mutual settlement embodied in a deed dated 24.05.2004. This deed allegedly allotted the ground floor to Shri Bharatwaj's family and the first floor to defendant No. 1, with a provision for Shri Bharatwaj to construct a second storey. It was pleaded that after constructing the second storey, the defendants prevented the plaintiffs from using the bathroom and latrine on the first floor, leading to previous litigation which was dismissed. The defendants were alleged to have threatened and attempted to oust the plaintiffs, culminating in the forcible dispossession of the plaintiffs during the suit's pendency. 4. The defendants contested the suit by filing a joint written statement, raising preliminary objections regarding maintainability, estoppel, suppression of material facts, and the plaintiffs' lack of locus standi and cause of action. They admitted the 3( 2025:HHC:29013 ) existence of the Bishan Dass building but denied most of the plaintiffs' construction narrative. They denied the existence or validity of the settlement deed dated 24.05.2004, alleging it was never acted upon and was later cancelled by a subsequent agreement dated 03.03.2011. They contended that Shri Bharatwaj primarily resided in a municipal corporation accommodation and that plaintiff No. 1, after contracting a second marriage, had no right to the estate. They also denied the allegation of forcible possession and pointed to a cancellation report filed by the police in relation to an FIR lodged by the plaintiffs. 5. Upon the pleadings of the parties, the learned Court below framed several issues on 11.11.2014: Issue No.1. Whether the plaintiff is entitled for the decree of permanent perpetual and prohibitory injunction restraining the defendants from interfering with the peaceful possession of suit property, i.e. ground floor and second floor of Bishan Dass Building 124, Block No.1, Lalpani, Shimla, H.P., as alleged? ....OPP. Issue No.2. Whether the plaintiff is entitled for the relief of mandatory injunction directing the defendants to restore to its original position and to adhere and stick to the terms and the conditions of the deed of settlement dated 24.05.2004, as alleged? ....OPP. Issue No.3. Whether the suit of the plaintiff is neither competent nor maintainable, as alleged? Issue No.4. Whether the plaintiff has suppressed true material facts, as alleged? ...OPD. Issue No.5. Whether plaintiffs have no locus standi to file the present suit, as alleged? ...OPD Issue No.6. Whether the plaintiffs have no locus standi to file the present suit, as alleged? ....OPD. Issue No.7. Whether the suit has not been properly identified, as alleged? ....OPD. Issue No.8. Whether vide agreement dated 3rd March, 2011 the compromise/agreement effected on dated 24.05.2004 was cancelled and the matter was amicably settled in terms of agreement dated 3rd March, 2011, as alleged? ...OPD. Issue No.9. Relief. 6. The learned Court below, after evaluating the evidence and hearing arguments, decreed the suit in favour of the plaintiffs for permanent injunction and vacant possession vide judgment dated 03.10.2023. Aggrieved by this, the defendants filed a first appeal. The first appellate court, vide judgment dated 17.01.2024, set aside the 4( 2025:HHC:29013 ) decree and remanded the matter back to the trial court to frame an additional issue specifically on the relief of vacant possession sought by the plaintiffs via the amended plaint. Consequently, the learned Court below framed Additional Issue No. 2-A on 20.02.2024, which read as under:- 2(A)“Whether, plaintiffs are entitled to relief of vacant possession of suit property, as prayed for?" OPP The parties led additional evidence on this issue, and the plaintiffs' witnesses were re-examined. After hearing arguments, the learned Trial Court vide the impugned judgment dated 20.05.2024 once again decreed the suit in favour of the plaintiffs for vacant possession of the suit property, directing the defendants to restore it to its original position as per the terms of the settlement deed dated 24.05.2004. 7. The appellants/defendants, feeling aggrieved by this judgment and decree, preferred a first appeal on several grounds. They contended that the impugned judgment and decree was passed in a hasty, haphazard, and cursory manner. It was asserted that the judgment was contrary to the pleadings and the evidence on record. A further ground was that the impugned judgment was based on surmises and conjectures rather than a firm evidentiary foundation. The appellants also pleaded that the learned Court below failed to appreciate the pleadings as well as the evidence on record in its right perspective. A specific grievance is raised that the learned Court below wrongly clubbed Issues No. 1 to 3, 6 & 8 for disposal instead of considering each issue separately. It was argued that the court failed to appreciate that the defendants/appellants had not pursued an 5( 2025:HHC:29013 ) earlier civil suit on account of a subsequent agreement/compromise dated 03.03.2011. 8. The First Appellate Court allowed the appeal. Thereafter the present appeal was preferred by the plaintiffs. 9. Heard counsel for the appellants and perused the impugned judgments. 10. The core of the dispute rests on the validity and operative effect of two competing agreements between the parties. The plaintiffs' entire claim was predicated on the settlement deed dated 24.05.2004. The defendants, however, successfully established the existence of a subsequent family agreement dated 03.03.2011 (Ext. DW9/B), which explicitly treated the earlier compromise as cancelled. The testimony of DW5, Smt. Manju Bala, an attesting witness to this document, remains wholly unchallenged on this aspect. Furthermore, PW3, Smt. Renu, the sister of both the original contesting parties, identified the signatures of her brothers on this agreement, thereby corroborating its authenticity. This document, being in the nature of a family settlement that redefined the rights of the brothers whereby the defendant relinquished his claim to a government job in favour of the plaintiff's husband, who in turn relinquished his possessory rights in the suit property in favour of the defendant, did not require compulsory registration. The learned First Appellate Court was therefore correct in holding that this subsequent agreement validly superseded the 2004 deed and extinguished any rights the plaintiffs purportedly derived from it. 6( 2025:HHC:29013 ) 11. A critical finding, which fundamentally undermines the very foundation of the suit, is that the plaintiffs were not in possession of the suit property at the time of its institution. The plaintiff No. 1 (PW1) admitted this fact in her cross-examination. This admission is conclusively corroborated by her own affidavit (Ext. DY), sworn on 07.05.2012 for claiming pensionary benefits, in which she declared her address as House No. 4, Labour Hostel, Krishna Nagar. Official evidence confirms this accommodation was allotted to her late husband and subsequently to his son-in-law. This deliberate suppression of the material fact of non-possession vitiates the plaintiffs' claim for injunctive relief, which is designed to protect existing lawful possession, not to create a new right or restore a lost one. 12. Consequently, the plaintiffs' claim for a decree of permanent prohibitory injunction must fail as they did not demonstrate existing peaceful possession worthy of protection by the court. For the same reason, their claim for mandatory injunction and vacant possession, premised on an alleged dispossession during the pendency of the suit, is irredeemably flawed. A prayer for restoration of possession cannot be founded on a premise of initial non-possession. The plaintiffs, having failed to prove any subsisting right to the property under the cancelled 2004 deed and having admitted their non-possession, were not entitled to any of the reliefs sought. 13. While the plaintiffs, being the widow and son of the deceased Bharatwaj, possessed the necessary locus standi to institute 7( 2025:HHC:29013 ) the suit as his legal heirs, this procedural right could not compensate for the substantive failure to prove a cause of action. The suit was founded on a false premise of possession and a legally superseded agreement. Therefore, the findings of the learned First Appellate Court, which correctly identified these fatal flaws in the plaintiffs' case and rightly reversed the erroneous judgment and decree of the trial court, are affirmed. The appeal is devoid of merit. 14. 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 27th August, 2025 (Shamsh Tabrez/T.B)