2025:HHC:28712 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.37 of 2023 Decided on: 25.08.2025 Bhisham Sigh & another … Petitioners Versus Roop Dassi … Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ____________________________________________________ _ For the petitioners : M/s Nitin Thakur and Udit Shourya Kaushik, Advocates. For the respondent : Mr. Sative Chauhan, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have challenged the orders passed by the learned Trial Court as well as the learned Appellate Court, in terms whereof, the application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure alongwith civil suit by the present respondent was allowed and the appeal preferred by the petitioners herein against the order passed by the learned Trial Court was dismissed. 2. Brief facts necessary for the adjudication of this case are that the respondent/ plaintiff has preferred a suit against the defendants/petitioners for permanent prohibitory injunction and mandatory injunction on the ground that the plaintiff is owner in possession of the suit land and the defendants without any right are making endeavour to encroach upon the suit land. An application 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:28712 was also filed alongwith the plaint under Order 39, Rule 1 and 2 of the Code of Civil Procedure, praying for the interim relief. In terms of the order passed by the learned Trial Court, dated 11.04.2022, said application was allowed. Learned Trial Court held that in terms of the revenue records, the plaintiff was recorded as owner of the suit land and one Munshi was recorded in possession as Gair Marusi. This Munshi was the grand-mother of the plaintiff who was dead and presently the suit land was coming in possession of the plaintiff. On the other hand, the defendants had denied the possession of the plaintiff over the suit land and claimed ownership by way of adverse possession. Learned Trial Court observed that at this stage there was nothing on record to demonstrate that the defendants were in possession of the suit land. It further held that possession followed the title and as the plaintiff was recorded owner in the revenue record, therefore, unless contrary was proved, it has to be presumed that the plaintiff was also in possession of the suit land. On these basis, the interim was granted by the learned Trial Court, ordering that the defendants were restrained from making any encroachment over the suit land. 3. Learned Appellate Authority upheld the order passed by the learned Trial Court. It held that in terms of the latest jamabandi, the plaintiff was recorded as owner in possession over the suit land, whereas, on the other hand, the contention of the defendants that they had become owners by way of adverse possession was still to be 3 2025:HHC:28712 adjudicated in the course of trial and therefore, in light of the fact that the defendants could not place any document including photograph to suggest that they were in possession of the suit land, there was nothing wrong with the order passed by the learned Trial Court. 4. Learned Counsel for the petitioners argued that both the learned Courts erred in not appreciating that the defendants had proved by placing on record the affidavits of the neighbours who had categorically stated in the affidavits that the defendants were in possession over the suit land since the year 1970 and had thus perfected their title by way of adverse possession. He submitted that in light of the fact that there was perversity writ large on the face of the record as far as impugned orders were concerned, the petition be allowed and the impugned orders be set aside. Learned Counsel further submitted that in case the impugned orders are allowed to remain, then it would amount to granting final relief by way of interim relief. 5. On the other hand, learned Counsel for the respondent argued that there is no perversity in the orders passed by the learned Courts below as the findings given therein are duly borne out from the record of the case. He submitted that it was a matter of record that the revenue documents which were placed on record by the plaintiff clearly demonstrated that he was owner in possession of the suit land, whereas on the contrary, except the bald assertion of 4 2025:HHC:28712 the defendants they they were in possession of the suit land, no material was placed on record by the defendants to substantiate this contention. Learned Counsel submitted that mere filing of affidavits of two neighbours cannot make out a prima facie case in favour of the defendants. Therefore, he submitted that as there is no perversity in the impugned order, the present petition be dismissed. 6. I have heard learned Counsel for the parties and have also carefully gone through the orders passed by the learned Courts below as well as the documents appended with the petition. 7. Both the learned Courts below have concurrently held while deciding the application under Order 39, Rule 1 and 2 of the Code of Civil Procedure and the appeal that the revenue documents on record clearly demonstrate that the plaintiff was owner in possession of the suit land. These findings have been returned by the learned Court below by stating that the revenue record proved that the plaintiff was owner of the suit land and the revenue record also demonstrated that earlier Munshi was reflected to be Gair Marusi, who was since dead and Munshi happened to be the grand- mother of the plaintiff and her death, the possession was also of the plaintiff over the suit land. Learned Counsel for the petitioner could not demonstrate that these findings returned by the learned Courts below were not borne out from the record of the case. 8. Therefore, in light of the fact that the revenue records demonstrated the plaintiff to be owner in possession of the suit land, 5 2025:HHC:28712 this Court is of the considered view that the findings returned to this effect by the learned Courts below call for no interference. Further, mere contention of the defendants that they have perfected their title by way of adverse possession with nothing to substantiate this contention at this stage except two affidavits obviously cannot override the presumption of truth which is attached with the revenue documents which tilt the balance in favour of the plaintiff. Besides this, in exercise of its power under Article 227 of the Constitution of India, as this Court is not to sit as an Appellate Court over the judgments and orders passed by the learned Courts below, therefore, as the view taken by the learned Courts below is a possible view on the basis of the material before the said Courts, this Court finds no reason to interfere with the said orders. In the light of above observation, this petition is dismissed. It is clarified that the observations made in this order are only for the purpose of adjudication of this petition and as far as the trial of the case is concerned, same shall be uninfluenced by any observation made by this Court in this order. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 25, 2025 (Rishi)