IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.219/2024 Date of Decision: 07th November, 2025. Jiwan Lal .....Appellant Versus Daleep Kumar and Anr. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Vijay Chaudhary, Advocate. For the Respondents: Mr. Gurmeet Bhardwaj, Advocate. Bipin Chander Negi, Judge (oral). The appellants, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 15.06.2024, passed by the learned District Judge, Chamba, District Chamba, HP in Civil Appeal No.11 of 2023, affirming the judgment and decree dated 23.03.2023, passed by the learned Senior Civil Judge, Chamba, District Chamba, HP, in Civil Suit No.462 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 as pleaded in the plaint are that the land in question, comprised in Khata Khatauni No. 221/251, Khasra No. 1870 measuring 02- 08-00 bighas situated at Mauza Roopani Pargona Rajnagar, Tehsil and District Chamba, is an Abadi Deh land. The houses of the plaintiff and the defendants have been constructed on this land since time immemorial. The plaintiff's case is that an old 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 cowshed, jointly owned and possessed by the plaintiff, the defendants, and two others named Hem Raj and Gajinder, was constructed by their forefathers on a portion of the suit land. Adjacent to this cowshed is a passage leading to the plaintiff's house, alongside which runs a drain that discharges water from his house. This cowshed collapsed 5-6 years ago, but the plaintiff continued to tether his cattle on his share of the land. The plaintiff alleged that in the last week of December 2018, the defendants began constructing rooms, a bathroom, and toilets on the very portion where the joint cowshed stood, thereby encroaching upon his share and obstructing his passage and drain. Consequently, the plaintiff sought permanent prohibitory and mandatory injunction against the defendants. 3. The defendants contested the suit, admitting that the suit land is Abadi Deh and that houses of both parties are constructed thereon, but denying that Hem Raj and Gajinder had any houses or rights in the land, asserting they had left 40- 50 years prior. They claimed the cowshed was constructed by the father of the defendants and was in their exclusive possession, denying any joint ownership or possession by the plaintiff. They further denied raising construction in December 2018, claiming it was done much earlier, and also denied blocking the plaintiff's passage or drain. The defendants raised preliminary objections regarding the maintainability of the suit, lack of cause of action, estoppel, locus standi of the plaintiff, the 3 plaintiff not coming with clean hands, and non-joinder of necessary parties. 4. On the pleadings of the parties, the learned trial Court framed the following issues on dated 09.07.2019: - 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed to? OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction and possession as prayed to? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has not come to the court with clean hands? OPD 6. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 7. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 8. Whether the suit of the plaintiff is bad for non joinder of the necessary parties? OPD 9. Relief. 5. After recording evidence, which included the plaintiff examining himself and two other witnesses and producing a jamabandi, and the defendants examining themselves, the Pradhan of the Gram Panchayat, and another witness while producing a certificate from the Gram Panchayat, the trial court decided issues No. 1 and 2 regarding injunction in the negative, issues No. 3 and 4 on maintainability and cause of action in the affirmative, and issue No. 6 on estoppel in the negative, while issues No. 5, 7, and 8 were noted as not pressed, leading to the dismissal of the plaintiff's suit. 4 6. The plaintiff, feeling aggrieved, preferred a first appeal. In the first appeal, it was argued that the trial court committed a grave error by relying upon the certificate Ex.DW2/B issued by the Gram Panchayat, which only showed the defendants in possession of a house without specifying the land, while ignoring the testimony of the plaintiff and his witness Hans Raj (PW3). 7. The findings of the trial court were assailed as being based on an improper appreciation of evidence. It was contended that the trial court erred in relying on the defendants' evidence despite their admission that the suit land was Abadi Deh and houses of both parties were constructed on it. The appellant argued that the statement of DW3 Bhoginder, regarding construction carried out by the defendants during the pendency of the suit, falsified the authenticity of certificate Ex.DW2/B, which was alleged to have been issued by the Pradhan in connivance with the defendants. It was also argued that the trial court failed to appreciate the photographs of the spot taken in December 2018. The First Appellate Court dismissed the appeal, leading to the filing of the present Regular Second Appeal. 8. Heard Counsels for the parties and perused the impugned judgments. 5 9. The land in question is an Abadi Deh land where the houses of the plaintiff and the defendants are situated. The core dispute concerns a collapsed cowshed on a portion of this land. 10. This Court finds the plaintiff's case fundamentally deficient for his failure to provide a site plan at the trial stage, as mandatorily required under Order VII Rule 7(1) Sub-rule (2) for a suit concerning a specific plot. This initial omission rendered it impossible for the trial court to identify the location of the alleged encroachment, passage, and drain. Subsequently, the plaintiff's attempt to remedy this fatal flaw by filing an application under Order XLI Rule 27 CPC to produce a site plan in the First Appellate Court was rightly dismissed. The First Appellate Court correctly held that the plaintiff failed to establish the necessary due diligence, as he could not prove that the evidence was not within his knowledge or could not have been produced earlier, and further noted that the belated plan itself was inadequate as it still failed to illustrate the specific encroachment, obstruction, or the dimensions of the claimed share. Consequently, in the absence of this vital document, the plaintiff's vague and unsubstantiated allegations of encroachment and obstruction cannot be sustained, and the concurrent findings of the courts below dismissing the suit are upheld. 11. The First Appellate Court correctly held that the plaintiff failed to establish the necessary due diligence, as he could not 6 prove that the evidence was not within his knowledge or could not have been produced earlier, and further noted that the belated plan itself was inadequate as it still failed to illustrate the specific encroachment, obstruction, or the dimensions of the claimed share. Consequently, in the absence of this vital document, the plaintiff's vague and unsubstantiated allegations of encroachment and obstruction cannot be sustained, and the concurrent findings of the courts below dismissing the suit are upheld. 12. On the merits of the appeal, the plaintiff has failed to prove his case. The testimony of his own witnesses, PW2 and PW3, undermines his claim of joint possession. PW2 admitted that the cowshed was constructed by and was in the exclusive possession of Balo Ram, the father of the defendants, and that the defendants subsequently came into possession. PW3 was found to have not resided in the village for over a decade, which severely negates his claim of possession over the suit property. The plaintiff also failed to produce any independent or contemporary evidence, such as a report from the Pradhan or Patwari, to corroborate his allegations of encroachment or obstruction. 13. In contrast, the evidence led by the defendants, particularly the testimony of DW2, the Pradhan of the Gram Panchayat, who conducted a spot visit, confirms that the defendants are in possession of the disputed site, that their 7 construction was raised prior to the suit, and that they have not obstructed the plaintiff's passage or drain. 14. The findings of the trial court are based on a proper appreciation of the evidence on record, which establishes that the defendants and their predecessor were in exclusive possession of the disputed portion. The plaintiff has not been able to prove his alleged joint possession or any legal right to restrain the defendants. Consequently, the impugned judgments call for no interference. 15. 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 07th November, 2025 (Gaurav Rawat/TB)