IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.249/2025 Date of Decision: 20th November, 2025. Baldev Singh and Anr. .....Appellants Versus Om Chand. …..Respondent Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Kishore Pundeer, Advocate. For the Respondent: Nemo. 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 04.07.2025, passed by the learned Additional District Judge, Sarkaghat, District Mandi, HP in Civil Appeal No.5/2024, affirming the judgment and decree dated 31.10.2023, passed by the learned Senior Civil Judge, Sarkaghat, District Mandi, HP, in Civil Suit No.223 of 2018. 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. The facts material and relevant for the disposal of the present appeal are that the suit was originally instituted by the plaintiff-respondent against the defendants-appellants praying for a decree of permanent prohibitory injunction to restrain the defendants from interfering in the suit land, from raising any construction over the lintel of the plaintiff's house, from changing the nature 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 of the suit land, and from digging the suit land until a legal partition is effected, along with a prayer for a mandatory injunction for demolition in case any construction is raised during the pendency of the suit. The case of the plaintiff, in brief, was that the land comprised in Khewat Khatauni No.78 Min/200 Min, bearing Khasra No. 445, measuring 00-04-81 situated at Muhal Karyal/ 252, III. Anantpur Tehsil Sarkaghat, District Mandi (HP) is recorded in the joint ownership of the plaintiff, defendant No.1, and other co-sharers and is an unpartitioned property. 3. The plaintiff claimed that during the lifetime of their father, he had raised the construction of his house over the suit land, which was completed in the year 2013. It was alleged that the defendants, without the plaintiff's consent, started interfering with his peaceful possession by placing household items, bricks, and firewood over the lintel of his house, which was covered with iron plates, and were threatening to construct a latrine-cum-bathroom on the first floor of the plaintiff's house. The cause of action was stated to have arisen on 08.07.2018 when the defendants began these acts and on 11.07.2018 when they refused the plaintiff's claims. 4. The defendants resisted the suit by filing a written statement raising preliminary objections regarding maintainability, locus standi, cause of action, estoppel, and non- joinder of necessary parties. On merits, while not denying the 3 description of the suit land, they contended that the suit land and the adjoining land had been allocated by their father during his lifetime to the plaintiff, defendant No.1, and their brother Balbir Singh, and that each had constructed their respective houses on their allocated shares and were enjoying the same. They further submitted that defendant No.1 had constructed his house during their father's lifetime, but a newly constructed portion remained incomplete, and they also highlighted their serious medical conditions. 5. On the pleadings of the parties, the following issues were framed by the learned trial court on 28.12.2019:- 1. Whether defendants are causing interference in the lintel of the plaintiff existing over the suit land, as alleged? OPP. 2. Whether defendants are interfering in the possession of the plaintiff over the suit land by threatening to change its nature, as alleged? OPP. 3. Whether suit is not maintainable in the present form, as alleged? OPD. 4. Whether plaintiff has no locus-standi to file the present suit? OPD. 5. Whether plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD. 6. Relief. 6. The learned Trial Court, after trial, decreed the suit of the plaintiff vide judgment and decree dated 31.10.2023. 7. The appellants/defendants, aggrieved by the said judgment, assailed the order before the First Appellate Court on several grounds. They contended that the judgment was ignorant of the pleadings and facts, as the plaintiff relied on a site plan (Ex. PW2/A) showing the houses situated at Khasra 4 No. 435, while the suit was specifically for Khasra No. 445, and no record of rights for Khasra No. 435 was appended, making the pleadings vague and misleading. They argued that the decree restrained them from Khasra No. 445, where defendant No.1 had equal ownership, thereby violating his fundamental right to property. They further contended that the plaintiff's claim that his house was "complete in all respect" in 2013 was inconsistent with the evidence of witnesses (PW-3 and PW-5) and the defendant (DW-1), which indicated that the plaintiff's new house was a three-storey building, while the defendants' house was a two-storey building over Khasra No. 435, which was incomplete. 8. They alleged that the plaintiff attempted to pollute the stream of justice by misrepresenting facts and that the trial court failed to differentiate between the plaintiff's three-storey house on Khasra No. 445 and the defendants' two-storey house on Khasra No. 435, which was shown as the "Disputed Area" in the site plan. They also argued that the judgment was based on misinterpretation and wrong appreciation of law and facts, was hypothetical, unreasoned, and contained material contradictions, and that the evidence was not properly appreciated. The First Appellate Court, however, dismissed the appeal, leading to the present Second Appeal. 9. Heard counsel for the appellants and perused the impugned judgments. 5 10. Based on a thorough appraisal of the evidence led by the respective parties, this Court concurs with the Concurrent findings of both the Courts below and holds that the plaintiff has successfully discharged the burden of proving his case on the preponderance of probabilities. The core of the dispute revolves around the ownership of a specific slab, and the evidence on record conclusively establishes the plaintiff's claim over it. 11. The testimony of PW-2 Milkhi Ram is pivotal, as he categorically stated that he was the one who executed the shuttering work for the concrete slab in question and he positively identified this very slab in photograph Mark P-4, which depicts the plaintiff's house. It is significant to note that in his cross-examination, the defendant did not challenge or question the fundamental assertion of PW-2 that the slab shown in the photograph was the one he had constructed for the plaintiff. This omission amounts to an implied admission of this crucial fact. 12. The plaintiff's evidence is further fortified by the testimony of PW-5 Rajesh Kumar, who stated that he was engaged to construct the tin roofing and ceiling on the structure and that the cost for this work was borne exclusively by the plaintiff. This testimony directly links the plaintiff's financial investment and constructive possession to the superstructure, including the disputed slab. On the contrary, the defendant's 6 claim of ownership over the slab is not only bereft of corroborative evidence but is also inherently improbable. 13. The defendant asserted that he was the one carrying out construction in a piecemeal manner and that the slab belonged to him. However, he failed to produce any primary evidence to substantiate this claim, such as bills for the purchase of cement, steel, or other construction materials, or any testimony from the labourers he allegedly employed to pour the concrete for the slab. This failure to adduce the best available evidence creates a strong presumption against the defendant's version. 14. While the defendant did examine himself and his brother, Sh. Balbir Singh, their testimonies remain general assertions regarding possession and do not specifically address the creation or ownership of the disputed slab with any particularity. The defendant's own admission that the litigating brothers are in separate possession of their respective portions of the jointly owned land, upon which they have constructed independent houses, fundamentally weakens his case. 15. It reinforces the principle that despite the jointness of the title in the land, possession of the superstructures can be, and in this case is, exclusive. The plaintiff's evidence positively establishes his exclusive possession and control over the specific slab, which forms an integral part of his dwelling. The learned trial court correctly applied and The First Appellate 7 Court rightly upheld, the principles of onus probandi, finding that the plaintiff presented a credible and consistent narrative supported by direct evidence, while the defendant failed to provide any convincing factum probans to counter it. Therefore, this Court finds no illegality or perversity in the impugned judgment and decree, and the findings of the trial court are affirmed. 16. 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 20th November, 2025 (Gaurav Rawat/TB)