( 2025:HHC:32953 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 160 of 2016. Reserved on: 8 th September, 2025. Decided on: 22 nd September, 2025. Kanta Devi .... Appellant. Versus Bhupender Pal & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Sanjeev Kuthiala, Senior Advocate with Mr. Uday Kuthiala, Advocate. For the Respondents: Mr. Lokesh Thakur, Advocate, for respondents No.1, 2 & 4 to 8. Mr. Manjeet Kaur, Advocate vice Mr. Naveen K. Bhardwaj, Advocate, for respondent No.3. Satyen Vaidya, Judge. This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant/plaintiff against the judgment and decree dated 16.01.2016 passed by learned Additional District Judge-II, Mandi, District Mandi, H.P. in Civil Appeal No. 25/15/2014, whereby the judgment and decree dated 18.01.2014 passed 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:32953 ) by learned Civil Judge, Junior Division, Chachiot at Gohar, District Mandi, H.P. in Civil Suit No. 29 of 2007 has been affirmed. 2. The appellant/plaintiff had filed a suit for permanent prohibitory and mandatory injunction against the respondents/defendants in respect of the land comprised in Khata No. 175 min, Khatauni No. 209, Khasra Nos. 331 and 332, measuring 0-5-19 bighas situated in mauza Sianj, Tehsil Chachiot, District Mandi, H.P. (for short “the suit land”). 3. The parties hereafter shall be referred by the same status as they held before the learned trial Court in Civil Suit No. 29 of 2007. 4. Plaintiff claimed herself to be the owner in possession of the suit land. It was alleged that the defendants without right, title and interest were interfering in the ownership and possession of plaintiff. A decree of mandatory injunction was also sought by alleging that in case the defendants succeeded in raising any construction/super structure over the suit land, the same be directed to be demolished. 5. The case as set up by the plaintiff was that the suit land was recorded in possession of Ganeshu, Devu and Narbada alias Nupi, all of whom were widows of Jalpu. Their 3 ( 2025:HHC:32953 ) possession was stated to be as non-occupancy tenants. It was averred that since Ganeshu and Devu had pre-deceased Narbada alias Nupi, the said Narbada alias Nupi had remained in exclusive possession of the suit land as non-occupancy tenant. As per the plaintiff, by operation of law and as per Section 104 of the H.P. Tenancy and Land Reforms Act, Narbada alias Nupi had become owner in possession of the suit land. However, it was admitted that the ownership of Narbada alias Nupi had not been recorded in the records of rights for want of attestation of the mutation. 6. Plaintiff also claimed to have inherited the suit land from Narbada @ Nupi by virtue of Will dated 17.11.997 executed by Narbada @ Nupi in favour of the plaintiff. 7. The defendants were stated to be having no right, title or interest in the suit land. With the allegation that since 18.05.2007 interference was being caused in the ownership and possession of the plaintiff by the defendants, the suit was filed. 8. Defendants No.2, 6 and 8 filed their joint written statement. The revenue entries in the name of Ganeshu, Devu and Narbada alias Nupi in respect of the suit land were alleged to be wrong, illegal and void. Their status was alleged to be that of trespasser. It was submitted that the suit land 4 ( 2025:HHC:32953 ) was owned and possessed by “Deity Sailwani” (hereinafter referred to as “Deity”). Jalpu was stated to be “Katwal” and thus, a member of Managing Committee of the Deity. As per defendants No. 2, 6 and 8, Jalpu had illegally got the entry of non-occupancy tenant incorporated in his favour in connivance with the revenue staff. The plaintiff was also alleged to be a trespasser over the suit land. 9. Defendant No.3 filed separate written statement and claimed to have inherited the estate of Jalpu being his nephew. 10. Defendants No.1,4, 5 and 7 also adopted the written statement filed by defendants No.2, 6 and 8. 11. It will be apt to notice here that defendants No.3 along with his two brothers namely Khub Ram and Baldev had also filed a Civil Suit No. 44 of 2007 impleading therein plaintiff Kanta Devi besides Kanti wife of Miyan Ram, Smt. Nagan alias Nagina w/o Himal Chand and Sri Devi Sehlwani (Deity) as other defendants. Kanti, Nagan alias Nagina were stated to be the daughters of Devu w/o Jalpu. The plaintiffs in Civil Suit No. 44 of 2007 claimed themselves to be the heirs of Jalpu being his lineal collateral descendants. On such basis, a decree for permanent prohibitory injunction was claimed by the plaintiffs in Civil Suit No. 44 of 2007. 5 ( 2025:HHC:32953 ) 12. It is not in dispute that by the order dated 07.05.2011 passed by this Court in Civil Revision No. 119 of 2009, Civil Suit No. 29 of 2007 and Civil Suit No. 44 of 2007 were ordered to be consolidated and decided together. 13. In compliance, both the suits were consolidated and the following issues were framed: - 1. Whether Ganeshu, Devu and Narbada alias Nupi were non occupancy tenant of the suit land, as alleged? OPP 2. Whether Narbada alias Nupi after the death of Ganeshu and Devu remained in exclusive possession of the suit land as non occupancy tenant and became its absolute owner in possession after coming into force the H.P. Land Reforms and Tenancy Act, as alleged?OPP. 3. Whether Narbada alias Nupi executed legal and valid Will dated 17.11.1997 No.99 in favour of plaintiff, as prayed for? OPP 4. Whether the defendants without any right, title and interest are interfering in the peaceful possession and enjoyment of the plaintiff over the suit land since 18.05.2007 and the plaintiff is therefore, entitled to the relief of permanent prohibitory injunction, as prayed for?OPP. 6 ( 2025:HHC:32953 ) 5. Whether the plaintiff is also entitled for the relief of mandatory injunction, as prayed for?OPP 6. Whether the plaintiff has no enforceable cause of action and locus standi to file the present suit, as alleged?OPD. 7. Whether the present suit is not legally maintainable, as alleged?OPD. 8. Whether the present suit is bad for non joinder and mis joinder of necessary parties as alleged?OPD. 9. Whether Narbada alais Nupi, Devu and Ganeshu were trespassers over the suit land, as alleged?OPD 10. Whether the suit property belongs to a minor Deity Devi Sahalwani and therefore the conferment of proprietary rights in favour of Narbada are illegal, null and void as alleged?OPD. 11. Whether Sh. Jalpu the husband of Narbada, Ganeshu and Devu fraudulently got himself entered as a non occupancy tenant in collusion with the settlement officials, as alleged?OPD. 12. Whether the Will dated 17.11.1997 in favour of plaintiff is illegal, null and void as alleged?OPD. 13. Whether after the death of Narbada it is defendant No.3 along with his brothers who are in possession over the suit land 7 ( 2025:HHC:32953 ) as a non occupancy tenant, as alleged? OPD. 14. Whether the plaintiffs (i9n Civil Suit No. 44/2007) are entitled for a decree of permanent prohibitory injunction to the effect that Smt. Kanta Devi (defendant No.1) be restrained from causing any interference in their peaceful possession over the suit land, as alleged?OPP 15. Relief. 14. Issues No.1 to 5, 8, 9, 11, 13 and 14 were answered in negative. Issues No. 6, 7, 10 and 12 were answered in affirmative. Learned trial Court dismissed both the suits by common judgment and decree dated 18.01.2014. 15. Three separate appeals were filed against the aforesaid judgment and decree passed by the learned trial Court. Civil Appeal No. 25/15 of 2014 was filed by the appellant/plaintiff herein (Kanta Devi) against the judgment and decree in Civil Suit No.29 of 2007. The plaintiffs in Civil Suit No. 44 of 2007 filed Civil Appeal No. 26/15/2014 against the judgment and decree passed in Civil Suit No. 44/2007 and another Civil Appeal bearing No. 30 of 2015 filed against the judgment and decree passed in Civil Suit No.29 of 2007. 8 ( 2025:HHC:32953 ) 16. Learned Additional District Judge-II, Mandi has decided all the three appeals by a common judgment. The appellant/plaintiff has assailed by way of this appeal the judgment and decree passed in Civil Appeal No. 25/15/2014 whereby the judgment and decree passed by the learned trial Court in Civil Suit No. 29 of 2007 has been affirmed. 17. The instant appeal was admitted on 09.08.2016 on following substantial question of law:- 1. Whether the possession of a person permissive or otherwise has to be protected by the grant of the relief of mandatory and prohibitory injunction and dispossession has to be made in accordance with law and whether denial of such relief by the courts below is proper? 18. I have heard learned counsel for the parties and have also gone through the entire record carefully. 19. The suit property has concurrently been held to be owned by the Deity. There is no challenge to such findings and thus, it has attained finality. 20. Noticeably, the plaintiff had not impleaded the owner of the suit property i.e. the Deity as party in the suit. 21. Plaintiff had claimed title and possession over the suit land under a Will allegedly executed by one Narbada alias 9 ( 2025:HHC:32953 ) Nupi in her favour on 17.11.1997. Plaintiff had also not mentioned the date of death of Narbada alias Nupi in the plaint. 22. It was claimed by the plaintiff that Jalpu was a non- occupancy tenant in the suit land. Ganeshu, Devu and Narbada @ Nupi were wives of Jalpu. As per the plaintiff, since, Ganesh and Devu had predeceased Narbada alias Nupi, thus, the said Narbada @ Nupi had exclusively inherited the tenancy rights of Jalpu in the suit land. It was also the case of the plaintiff that the proprietary rights of the suit land had automatically vested in Narbada alias Nupi on coming into force of Himachal Pradesh Tenancy and Land Reforms Act, 1972 and as a result thereof Narbada alias Nupi had become exclusive owner in possession of the suit land. 23. All the defendants, except defendant No.3 had raised objections with respect to the entries in the record of rights reflecting Jalpu as non-occupancy tenant in the suit land. It was alleged that Jalpu was a Katwal and a member of managing committee of the deity and, therefore, he was never inducted as tenant by the deity. The allegation was that Jalpu had got incorporated wrong entries in his favour in connivance with revenue officials. 10 ( 2025:HHC:32953 ) 24. Learned trial Court while deciding issues No.9 to 11 held that Jalpu could not have acquired the status of non- occupancy tenant in the suit land on two counts, firstly, that there was no evidence of induction of Jalpu as non-occupancy tenant and secondly, such fact could not exist in the teeth of Section 104(8) of the H.P. Tenancy and Land Reforms Act, 1972. Learned trial Court found that the entry of non- occupancy tenant recorded after preparation of settlement record had no legal basis as it was not supported by any mutation or any other order of the competent authority. 25. Learned First Appellate Court has affirmed the aforesaid findings by taking notice of the fact that the revenue records on one hand depicted the status of Jalpu as non-occupancy tenant but simultaneously he was also shown as “Katwal” of the deity. Thus, it was held that “Katwal” was meant to protect the property of the Deity and since, the deity was a minor, the same could not have been appropriated by the person who was there to protect the property of such minor. It has also been held that the evidence clearly lacked in establishing the creation of tenancy in favour of Jalpu. Learned first appellate court took notice of additional fact that the part of the suit land was depicted as Sehan (court yard) in the record of rights and thus the said 11 ( 2025:HHC:32953 ) part not being an agricultural land could not have been occupied as non-occupancy tenant. It was also found that evidence of Jalpu having paid any rent was completely lacking. 26. Thus, both the Courts have concurrently held that Jalpu was not proved to be non-occupancy tenant in the suit land. At the time of hearing of the appeal, no challenge has been laid to such findings of fact by pointing out any illegality or perversity. Even otherwise having considered the entire material on file, I have not found any fault with the above said findings of fact recorded by both the Courts. 27. Learned Senior Advocate representing the plaintiff has thus laid challenge to the impugned judgment and decree to the extent that the possession of plaintiff was liable for protection, therefore, a decree for permanent prohibitory injunction against the strangers could not be denied to her. 28. To test above contention, notice can be taken that both the Courts have held that since Jalpu was not proved to be a tenant over the suit land, the claim of inheritance of such right either by Ganeshu, Devu and Narbada alias Nupi on one hand and Kamal Dev, Khub Ram and Baldev on the other was not sustainable. Learned trial Court came to the conclusion that the possession of Narbada was only 12 ( 2025:HHC:32953 ) permissive. As regards plaintiff, learned trial Court did not find her possession proved on the suit land. It was found that the entries in record of rights did not establish such fact. It was also noticed that though the plaintiff claimed to have constructed a house on the part of the suit land, but the revenue entries again did not reflect so. According to the entries in the records of rights, part of the suit land was agricultural and part of it was a Sehan (court yard). Even the admissions made by certain defendants while deposing as witnesses regarding possession of plaintiff over suit land has been ignored more particularly when the plaintiff had not been able to show the existence of her house on the part of the suit land. Learned trial Court held that without any specific evidence a decree could not be passed in favour of the plaintiff. 29. Learned First Appellate Court has also found nothing wrong in the findings recorded by the learned trial Court in respect of possession over the suit land. 30. There is no denial of the fact that the plaintiff has never been shown to hold the possession of any part of the suit land in the records of rights. Khasra Girdawari is recorded periodically. Part of the suit land is agricultural land. There is no explanation as to why the possession of plaintiff 13 ( 2025:HHC:32953 ) was not reflected in any of the khasra Girdwaris. Moreover, the claim of the plaintiff over the suit land is based on a void transaction. Narbada alias Nupi having no right in the suit land could not have executed a Will. The proprietary rights of land owned by a Deity i.e. the perpetual minor could not have been conferred even upon a non-occupancy tenant in view of the specific bar under Section 104(8) of the H.P. Tenancy and Land Reforms Act, 1972. 31. There also could not be any Will with respect to tenancy right. 32. Thus, it was incumbent upon the plaintiff to have proved by cogent evidence the delivery of possession in her favour by Narbada in pursuance to an unlawful transaction. Plaintiff has not even pleaded that when did she come into possession of the suit land. Even the date of death of Narbada has not been mentioned. Whether Narbada was surviving by any legal heirs or not has also not been mentioned. Above all, plaintiff had not impleaded the true owner of the property as a party. 33. Keeping in view the entirety of facts and circumstances established on record, no fault can be found with the findings recorded by both the Courts below. View taken by the Courts below is a possible view in the facts 14 ( 2025:HHC:32953 ) established on record. The denial of decree of injunction in favour of plaintiff cannot be faulted with. Learned Courts below have rightly declined to exercise the discretion in favour of the plaintiff. 34. The substantial question of law is answered accordingly. 35. For the foregoing reasons, there is no merit in the instant appeal and the same is dismissed. Accordingly, the impugned judgment and decree is affirmed. 36. All pending applications, if any, also stand disposed of. 37. Decree sheet be prepared accordingly. 38. Records be sent back forthwith. (Satyen Vaidya) Judge 22nd September, 2025. (jai)