1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.137 of 2025 Date of Decision : 02.09.2025 Damodari …… Appellant Versus Mansha Ram and another ……Respondent Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the appellant : Mr. Veena Sharma, Advocate. For the respondent : Mr. Neel Kamal Sharma, Advocate, for the respondents. 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 09.07.2024, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh, in Civil Appeal No. 108-13 of 2023, whereby the judgment and decree dated 17.11.2022, passed by learned Civil Judge, Court No. 1, Ghumarwin, District Bilaspur, in Civil Suit No. 13/01 of 2016, was affirmed. 2. The plaintiff instituted a civil suit through her GPA holder, Surender Kumar Sharma, before the Learned trial Court seeking a permanent prohibitory injunction against the defendants. The relief sought was to restrain them from interfering with, changing the nature of, digging, making extensions, constructing any house, encroaching by putting woods, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 constructing any wall, and diverting the flow of water towards the suit land, comprised in Khasra No.55, Khata/Khatoni No.37/39, measuring 1-12 bighas, situated in Village Ransal, Pargna Sariun, Tehsil Ghumarwin, District Bilaspur, H.P. 3. The plaintiff asserted her ownership and possession of the suit land along with other co-sharers and contended that the defendants, being strangers with no right, title, or interest, entered the land on 24-01-2016 and began interfering and encroaching upon it. Despite requests to desist, the defendants were allegedly adamant and threatened to forcibly dispossess the plaintiff by raising construction, leading to the prayer for a decree to restrain them from changing the nature of the land or constructing any road. 4. The defendants contested the suit by filing a written statement, raising preliminary objections that the suit was not maintainable in its present form, that the plaintiff had no cause of action, that it was bad for non-joinder and mis-joinder of necessary parties, and that it was not properly valued for Court fee and jurisdiction. On merits, they contended that the suit land was a public 'pucca' cemented path used by local inhabitants and the general public, and as such, the question of interference or encroachment did not arise. They denied diverting the flow of water and asserted the suit was filed without any cause of action, praying for its dismissal. 5. The plaintiff submitted a replication, emphatically reconfirming and reiterating the assertions made in the plaint while denying the counter- allegations in the written statement. 6. Upon the pleadings of the parties, learned trial Court framed the following issues on 17-06-2016: 3 (1) Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP. (2) Whether the present suit is not maintainable in the present form? OPD. (3) Whether the plaintiff has no cause of action and locus standi to file the present suit, as alleged for? OPD. (4) Whether the present suit is not properly valued for the purpose of court fee and jurisdiction, as alleged for? OPD. (5) Relief 7. To prove her case, the plaintiff examined Sh. Surender Kumar, her GPA holder, as PW-1, who tendered his sworn affidavit Ex.PW-1/A. The defendants examined defendant No.1, Mansha Ram, as DW-1, who filed sworn affidavit Ex.DW-1/A, and also examined Sh. Prakash Chand as DW-2 and Sh. Shammi Sharma as DW-3. The evidence tendered included copies of jamabandi for the year 2008-09 Ex.PW-1/B, copy of order Ex.DW-1/B, copy of demarcation report Ex.DW-3/A, statements Ex.DW-3/B and Ex.DW- 3/C, application for demarcation Ex.DW-3/D, copy of jamabandi Ex.D-1, Aksh Shazra Kistwar Ex.D-2, copy of jamabandi Ex.D-3 and copy of nakal kishtwar Ex.D-4. 8. After recording and evaluating the evidence, the Learned Trial Court dismissed the suit vide judgment and decree dated 17-11-2022, holding that the plaintiff had failed to prove that any interference was being caused by the defendants. Consequently, issue no.1 was decided in the negative and against the plaintiff, while issues no.2 to 4 were also decided in the negative and against the defendants. 9. Aggrieved by this judgment and decree, the appellant has preferred a first appeal, asserting that the decision of the Learned Trial Court was wrong, illegal, and against the law, facts, and procedure. The appellant contends that interference was proved from the statement of DW-1, which 4 was ignored by the Trial Court, and that the Court travelled beyond the pleadings, basing its judgment on conjecture and surmises. It was, prayed that the appeal be allowed and the impugned judgment and decree be set aside. 10. Heard counsels for the parties, perused the impugned judgments. 11. The plaintiff's case rested on her claim of being a co-owner of the suit land and alleging that the defendants, without any right, were interfering with it by encroaching and attempting constructions. To substantiate this, her GPA holder, PW-1, testified to the defendants' actions in January 2016. However, his testimony was critically undermined during cross-examination where he admitted the suit land is a public passage ('Gair Munkin Gohar'), used by villagers and leading to a Nalah, and that he never reported the alleged interference to the Panchayat. 12. Conversely, the defendants' evidence, through DW-1 and DW- 2, consistently asserted that the land is a public path maintained by the Panchayat and denied any interference. This position was corroborated by the revenue record, Jamabandi Ex.PW-1/B, which officially records the land's nature as a passage and carries a presumption of truth under Section 45 of the H.P. Land Revenue Act. 13. An injunction is not granted as a matter of right but requires convincing proof of an actionable legal injury. While the plaintiff holds proprietary rights, the evidence conclusively shows the land's primary character is a public path. The plaintiff failed to discharge the burden of proving the defendants' actions warranted the extraordinary relief of a 5 permanent injunction. The findings of the Learned trial Court as well as the First Appellate Court were based on a correct appreciation of the evidence and the law, and no grounds exist to interfere with its decision to dismiss the suit. 14. In the aforesaid facts and attending circumstances, there arises no question of law much less a substantial question of law in the case at hand. Pending miscellaneous application(s), if any, shall also stand disposed of. (Bipin Chander Negi) September 02, 2025 (KS/T.B.) Judge