IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 95 of 2023 Decided on:10.04.2025 ____________________________________________________ Prem Singh ……….. appellant Versus Sohan Lal ………respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the appellant : Mr. G.D. Verma, Sr. Advocate, with Mr. Digvijay Singh Bisht Advocate, vice Mr. B.C. Advocate. For the respondent : Mr. Ajay Sharma, Sr. Advocate with Mr. Tarun Brakta, Advocate, for the respondent. ____________________________________________________ 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 21.01.2023 passed in Civil Appeal No. 59 of 2021 by the learned Additional District Judge, Sunder Nagar, District Mandi, whereby the judgment and decree dated 17.11.2021 in Civil Suit No. 66-1 of 2014 passed by the learned Senior Civil Judge, Court No.(1) Sunder Nagar, Distinct Mandi, H.P. was affirmed. 2. The Appellant before this Court was the Plaintiff before the trial Court. The facts leading up to the present appeal are as follows. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2(a) The appellant, who was the plaintiff before the trial court, had instituted a suit for permanent prohibitory and mandatory injunction against the respondent. The suit pertained to the land comprised in Khewat No. 41/38, Khatauni No. 52/50, Khasra Nos. 328, 330, 331, 332, and 345, Kita-5, measuring 16-13-04 bighas, situated at Mauja Kapahi, Muhal Thala/35, Tehsil Sundernagar, District Mandi. The plaintiff alleged that the suit land was previously owned and possessed by Smt. Hima Devi along with other co- sharers and that she had sold her entire share jointly to the plaintiff and defendant through sale deed No. 357/2010 dated 26.02.2010, which included an unconstructed house on Khasra No. 330. 2(b) The plaintiff and defendant thus became joint owners in possession of the land and subsequently completed the construction of the house, including a kitchen, bathroom-cum-latrine, and septic tank, with sewerage pipes laid on the foundation. In 2011, the parties orally partitioned the house, with the portion containing the sewerage pipes being allotted to the defendant. 2(c). The plaintiff claimed that on 08.01.2014, the defendant dismantled the floor of his portion, blocking the sewerage pipes connected to the plaintiff’s latrine, causing 3 hardship to the plaintiff and his family. Despite requests, the defendant refused to restore the sewerage system, leading to the filing of the suit. 2(d) The defendant contested the suit, denying the allegations and stating that the parties had constructed separate portions of the house with their own funds. The defendant asserted that he had his own septic tank on the western side, while the plaintiff’s portion was on the eastern side, and that the plaintiff had constructed a dead wall and illegally laid sewerage pipes over the defendant’s stairs, causing nuisance. The defendant contended that the plaintiff was obligated to construct his own septic tank and could not use the defendant’s portion. 3. The trial court framed the following issues: (1) Whether the defendant is bent upon blocking sewerage pipes of the toilet of the plaintiff, as alleged? OPP; (2) Whether the plaintiff is entitled to the decree of permanent prohibitory injunction, as prayed for? OPP; (3) Whether, in the alternative, plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP; (4) Whether the suit is bad for non-joinder of necessary parties? OPD; (5) Whether there is no cause of action in favour of the plaintiff? OPD; 4 (6) Relief. 4. After recording evidence, the trial court dismissed the suit, holding that the plaintiff could not claim rights over the defendant’s portion, there was no proof of joint construction of the septic tank, and the plaintiff could not unilaterally use the defendant’s portion for sewerage. The first appellate court affirmed the dismissal, leading to the present Second Appeal. 5. Admittedly, the present appellant is claiming a right over the septic tank which has been constructed on the land in possession of the respondent. There is no evidence on record to show that the septic tank was jointly constructed by the parties. Besides the aforesaid the appellant in his cross examination had categorically admitted that he has kept a provision for a separate tank in his construction for which he is entitled to lay sewerage pipes on land possessed by him. 6. According to the appellant the sewerage pipes have been laid over the land in the possession of the present respondent. The laying of the pipes as per the respondent was never consented to by him. The claim of the present appellant in the absence of a spot map to show the exact 5 location of the sewerage pipe and where it was being blocked by the respondent stands unsubstantiated. 7. Reliance placed on a statement made by the present respondent in a proceedings under section 133 CrPc (public nuisance), without putting the same to the respondent in his cross examination before the trial court is of no avail. 8. In the aforesaid facts and attending circumstances, no infirmity calling for interference under Section 100 CPC in the concurrent findings of facts by the Courts below is called for. 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 10th April, 2025 tarun