IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.259/2023 Date of Decision: 02nd December, 2025. Pritam Singh .....Appellant Versus Amar Singh (deceased) through LRs. …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Uday Singh Banyal, Advocate. For the Respondents: Mr. Anil Jaswal, Advocate. 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 21.08.2023, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, HP in Civil Appeal No.73 of 2018, setting aside the judgment and decree dated 27.10.2018, passed by the learned Civil Judge, Court No.IV, Hamirpur, District Hamirpur, HP, in Civil Suit No.59 of 2011. 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. Briefly stated, the facts of the case are that the plaintiff Pritam Singh had filed a civil suit seeking a decree of declaration and permanent prohibitory injunction regarding the land comprising Khata No.54 min, Khatauni No.67 min, Khasra No.1287/324 measuring 0-00-07 hectares and Khasra No.1286/323 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 measuring 0-01-03 hectares, as per jamabandi for the year 2007-08, situated in Tika Kihrwin, Tappa Dhaned, Tehsil and District Hamirpur, H.P. (suit land), asserting his ownership and possession. A decree of permanent prohibitory injunction was also sought to restrain the defendant from encroaching upon the suit land by raising construction. The plaintiff averred that the suit land was in his exclusive ownership and possession, while the defendant was the owner of adjoining land. The plaintiff claimed a customary right to use the ridges of the defendant's fields for ingress and egress for cultivation, carrying bullocks, and taking grass since time immemorial. The cause of action allegedly accrued in the second week of June, 2011, when the defendant started digging the suit land, destroyed boundary marks, and encroached upon it. The plaintiff sought relief of injunction, possession through demolition, and a declaration of his customary right of passage. 3. The defendant contested the suit by filing a written statement raising preliminary objections on maintainability, estoppel, locus standi, and cause of action. On merits, it was averred that the suit land was still joint as a Revision Petition against the partition order was pending before the Financial Commissioner, Shimla. It was further stated that the suit land was adjacent to a public road, negating the need for passage through the defendant's land. While admitting that ridges could generally be used for agricultural access, the defendant denied 3 any encroachment on the plaintiff's land and alleged that the plaintiff had been held in civil imprisonment in prior proceedings and had no respect for law, praying for dismissal of the suit. 4. On the pleadings of the parties, the following issues were framed by the learned trial court on 08.05.2012:- 1. Whether plaintiff is entitled to declaration to the effect that he is owner in possession over the land comprised in Khata No.54 min detailed in the headnote of the plaint ?OPP. 2. Whether plaintiff is entitled to the relief of possession as prayed for ?OPP. 3. Whether plaintiff is having customary right of passage through land of defendant comprised in Khata No.53 min detailed in the head note of the plaint ?OPP. 4. Whether defendant is causing obstructions to the right of passage of the plaintiff over the land comprised in Khata No.53 min, detailed in the head- note of the plaint, as alleged ?OPP. 5. Whether plaintiff is entitled to the relief of permanent prohibitory injunction directing the defendant not to cause interference with the right of passage of the plaintiff as alleged ?OPP. 6. Whether plaintiff is entitled to mandatory injunction directing the defendant to restore the passage in its original form as alleged ?OPP. 7. Whether suit of the plaintiff is not maintainable in its present form as alleged ?OPD. 8. Whether the suit land is joint between plaintiff, defendant and other co-sharers, as alleged ?OPD. 9. Whether there lies no cause of action and locus standi in favour of plaintiff to file the present suit?OPD. 10. Whether defendant is entitled to special costs under Section 35-A CPC ?OPD. 11. Relief. 5. The plaintiff examined three witnesses and exhibited documents including jamabandis (Ex.P1 to Ex.P3), a copy of judgment (Ex.P4), memorandum of cost (Ex.P5), copy of wazib- ul-arz (Ex.P6), Tatima (Ex.P7), and other orders and compromises. The defendant examined three witnesses, and 4 the Local Commissioner was examined as OW1, with his report and related documents exhibited. 6. The learned trial court, vide judgment and decree dated 27.10.2018, decided issue No.1 in the affirmative and issues No.2 to 10 in the negative, thereby partly decreeing the suit of the plaintiff. 7. Aggrieved by this judgment and decree, both parties filed first appeals. In Civil Appeal No.156/2018, the plaintiff- appellant contended that the trial court's judgment was against law and facts, arguing that the Local Commissioner's report was not considered properly, particularly regarding demarcation directions from the Financial Commissioner, and that the wazib- ul-arz evidenced a customary right of passage which the trial court failed to consider. In Civil Appeal No.166/2018, the defendant-appellant contended that the trial court illegally passed a decree when no issue was framed on the point, that the plaintiff had himself encroached and did not approach the court with clean hands, and that the decree was against law and facts for lack of proven cause of action. 8. The first appellate court, after considering the pleadings, evidence, and arguments, dismissed the appeal of the plaintiff, and allowed the appeal of the Defendant. Aggrieved by the same the present second appeal has been preferred by the Plaintiff. 5 9. Heard counsel for the parties, perused the impugned judgements. 10. The sole point for determination that goes to the root of the matter is whether the first appellate court's judgment is vitiated by a fundamental legal error in granting, in substance, a relief to the defendant which he never sought through a counter-claim, thereby violating the principles of the Code of Civil Procedure. 11. In its judgment, the trial court had definitively decided Issue No. 1 in the plaintiff's favour, declaring him the owner in possession of the suit land, a finding the appellate court itself expressly affirms in paragraph No.29, noting the plaintiff's ownership and possession is "not in dispute" and is supported by his own witnesses. However, the court then proceeds to set aside this very declaration and the decree founded upon it, pivoting to a conclusion that the plaintiff is an "encroacher" on the defendant's adjoining land. This reasoning is internally inconsistent as one cannot simultaneously be in lawful possession of one's own land as an owner and be an encroacher upon the same parcel; these are mutually exclusive legal statuses. 12. On a careful reading of the impugned judgment, it is evident that the learned First Appellate Court based the dismissal of the plaintiff's suit not merely on a failure of proof, but on an affirmative finding of fact that the plaintiff had 6 encroached upon the defendant's land. While the first premise is the plaintiff's pleaded case, the second premise introduces a fact entirely of the defendant's concern. The conclusion drawn from this juxtaposition is legally unsustainable in the context of this suit. 13. A defendant's written statement, under Order VIII of the CPC, has two distinct functions: to state a defence that negatives the plaintiff's right, or to set up a counter- claim constituting a cause of action in favour of the defendant against the plaintiff. A plea in defence, which is merely a denial, cannot be allowed to metamorphose into a grant of affirmative relief. The defendant in this case filed no counter-claim. He did not seek a declaration that the plaintiff had encroached upon his land, nor did he pray for a mandatory injunction for the removal of such encroachment. His written statement contained a traverse, a denial of the plaintiff's allegations. The evidence of the Local Commissioner was, therefore, admissible only to the extent it supported that denial by showing that the defendant's construction was within his own land. It was admissible to disprove the plaintiff's specific allegation of encroachment by the defendant. 14. However, the first appellate court transcended this limited use of the evidence. It utilized the finding of the plaintiff's encroachment not just to bolster the defendant's denial, but as the central and sufficient reason to non-suit the 7 plaintiff. In doing so, the court effectively granted the defendant a declaratory relief that he never pleaded for. It declared, by necessary implication, the defendant's title over the portion said to be encroached upon by the plaintiff, and condemned the plaintiff's possession thereof. This is a relief that could only have been sought and granted in a properly instituted counter- claim under Order VIII Rule 6-A CPC. A court cannot, under the guise of evaluating a defence, pronounce a decree on a cause of action not pleaded by the party seeking its benefit. The principles enshrined in [Union of India v. Ibrahim Uddin & Another (2012) 8 SCC 148] are clear: the court cannot grant a relief which is not founded on the pleadings. 15. The failure of the plaintiff's suit must stem from the inadequacy of his own evidence to prove his own case. It cannot legitimately stem from the success of an un-pleaded case of the opposite party. The correct approach for the first appellate court would have been to examine the Local Commissioner's report and the other evidence strictly to answer the question Whether the plaintiff proved that the defendant's construction falls on Khasra Nos. 1286/323 or 1287/324 (the suit land)? Since after considering the material on record, the answer was in the negative, the suit was correctly held to have failed. 16. In the aforesaid facts and attending circumstances, the impugned judgment and decree passed by the learned First Appellate Court dated 21.08.2023 suffers from a substantial 8 error of law, insofar as it allows the first appeal preferred by the defendant i.e. Civil Appeal No.73 of 2018, therefore, the same is set aside and the judgment passed by the learned trial Court is upheld. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 02nd December, 2025 (Gaurav Rawat/TB)