( 2026:HHC:20991 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 391 of 2019 Date of Decision:22.05.2026 __________________________________________________ Harnam Singh (deceased) through LRS ..Appellants. Versus Ashwani Kumar ...Respondent Coram The Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting? For the appellants: Mr. Amrik Singh, Advocate. For the respondent: Mr. Vivek Thakur, Advocate, vice Mr. Sanjeev Sood, Advocate. 4._ ________________________________________________ Romesh Verma , Judge(oral) The present appeal arises out of the judgment and decree as passed by the learned District Judge, Hamirpur, Distt. Hamirpur, H.P dated 17.05.2019, whereby the appeal preferred by the respondent/defendant was allowed and the judgment and decree as passed by the learned Civil Judge (Sr. Div.), Nadaun, District Hamirpur, H.P dated 31.07.2015, decreeing the suit of the plaintiff/appellant, was set aside. 2. The facts of the case are that the plaintiff/appellant filed a suit for fixation of the boundary by way of demarcation, along with consequential relief of permanent prohibitory injunction restraining the defendants, their agents, servants, and family members from raising any construction, changing the nature of 2 ( 2026:HHC:20991) the suit land, digging, or uprooting the boundaries during the pendency of the suit. Further, it was prayed that, in case the defendants succeeded in raising any sort of construction over the suit land, a decree for possession by way of demolition be passed in favour of the plaintiff. 3. It has been averred that the plaintiff is the owner in possession of the land comprised in Khata Nos. 66 Min and 60, Khatauni Nos. 150, 148, and 149/1, Khasra No. 397, measuring 00-02-07 hectares, situated in Mahal Kohla Khas, Mouja Kohla, Tehsil Nadaun, District Hamirpur, H.P. 4. As per plaintiff, the defendant has no concern with the suit land and is a stranger thereto. The defendant is a headstrong person and, with the object of grabbing the suit land, has now started collecting material and digging the boundary of the suit land with a view to raise construction over the same. It was further averred that, though the defendant was requested several times not to raise construction and not to dig the suit land, however, he flatly refused to do so. The plaintiff sought a decree for fixation of boundary by way of demarcation, along with consequential relief of permanent prohibitory injunction and mandatory injunction. 5. The suit was contested by defendant Ashwani Kumar by raising various preliminary objections with respect to maintainability, cause of action, estoppel, locus standi, etc. On 3 ( 2026:HHC:20991) merits, it was specifically averred that the defendant is owner in possession of adjoining Khasra No. 398 and has no concern with Khasra No. 397. There was no boundary dispute between the parties. Recently, at Tika Kohla, the land was under settlement and, during the settlement operations, Khasra Nos. 397 as well as 398 were demarcated on the spot by the field staff of the Settlement Authority, and permanent boundaries were fixed on the spot. There was no boundary dispute inter se the parties, therefore, the suit deserved to be dismissed. 6. The plaintiff filed replication to the written statement and reiterated all the averments as made in the plaint. 7. The learned Trial Court framed issues in the matter on 22.04.2009 in the following manner:- 1. Whether the plaintiff is entitled for a decree of fixation of boundary by way of demarcation as prayed for? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP. 3. Whether the plaintiff is entitled for alternative relief of possession as prayed for? OPP. 4. Whether the suit of the plaintiff is not maintainable as alleged? OPD. 4 ( 2026:HHC:20991) 5. Whether no cause of action accrued to the plaintiff as alleged? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct as alleged? OPD. 7. Relief. 8. Learned Trial Court vide its judgment and decree dated 31.07.2015, decreed the suit filed by the plaintiff/appellant and defendant was restrained from causing any kind of interference over the suit land comprised in Khata No. 66 Min and 60, Khatauni Nos. 150, 148, and 149/1, Khasra No. 397, land measuring 00-02-07 hectares, situated in Mahal Kohla Khas, Mouja Kohla, Tehsil Nadaun, District Hamirpur, H.P. The plaintiff was also held entitled to possession of the encroached portion of the suit land denoted by Khasra No. 397/1, measuring 00-00-28 hectares. The report of the Local Commissioner, Ext. OW1/B, along with the filed book and Tatima, Ext. OW1/C and Ext. OW1/D, was ordered to form part and parcel of the decree. 9. The defendant/respondent, feeling dissatisfied with the judgment passed by the learned Trial Court, preferred an appeal under Section 96 of the CPC before the learned District Judge, Hamirpur, on 17.09.2015. The learned First Appellate Court, vide its judgment and decree dated 17.05.2019, accepted the appeal 5 ( 2026:HHC:20991) filed by the defendant, and the suit filed by the plaintiff was ordered to be dismissed. 10. Feeling aggrieved, the plaintiff has approached by this Court by filing the instant appeal under Section 100 of the CPC. This Court admitted the appeal on 28.10.2022 on the following substantial questions of law:- 1. Whether judgment and decree passed by First Appellate Court is suffering from perversity for misreading, misinterpretation and misconstruction of pleadings of parties as well as evidence on record, oral and documentary ? 2. Whether findings in impugned judgment and decree passed by learned District Judge that Civil Suit is not maintainable, are contrary to law ? 11. It is contended by Sh. Amrik Singh learned counsel for the appellant that the impugned judgment and decree passed by the learned First Appellate Court is erroneous and liable to be set aside. He further submits that the learned First Appellate Court has wrongly accepted the appeal filed by the defendant/respondent and wrongly dismissed the suit as filed by the present appellant. He submits that after accepting the present appeal, the suit filed by the appellant/plaintiff deserves to be decreed. 6 ( 2026:HHC:20991) 12. On the other hand, Mr. Vivek Thakur, learned vice counsel for respondent has defended the impugned judgment and decree as passed by the learned District Judge. He submits that the First Appellate Court being the last Court of fact has rightly determined the point in controversy and no interference is required in the present case. He has prayed for the dismissal of the present appeal. 13. I have heard learned counsel for the parties. 14. In the present case, the plaintiff/appellant filed a suit for fixation of the boundary by way of demarcation of the land situated at Mahal Kohla Khas, Mouja Kohla, Tehsil Nadaun, District Hamirpur, H.P., with consequential relief restraining the defendant from changing the nature of the suit property by digging and uprooting its boundaries. Further, it was prayed that, in case the defendant succeeded in raising any sort of construction during the pendency of the suit, the suit land be restored to its original position. 15. It is the case of the plaintiff that he is the owner in possession of Khasra No. 397 and that the defendant, being a stranger, is threatening and trying to raise construction, including carrying out digging work, over the spot. It has been stated that, being a headstrong person, he is trying to change the nature of the suit land and, therefore, he may be injuncted from doing so. The 7 ( 2026:HHC:20991) said averments have been specifically refuted by the defendant. Rather, it has been admitted that the defendant has no concern with the suit land bearing Khasra No. 397. 16. The case as projected by the defendant is that he is owner in possession of adjoining Khasra No. 398, which is owned and possessed by him. There is no formal boundary dispute inter se the parties and, therefore, no question of demarcation arises in the present proceedings. All the averments made in the plaint have been refuted by the defendant in his written statement. 17. The perusal of the record reveals that, prior to the institution of the present suit, Sh. Harnam Singh, the plaintiff, had instituted a suit along with Sh. Sandeep Kumar, Sh. Ajay Kumar, Sh. Rajiv Kumar, and Sh. Sanjeev Kumar against Sh. Hari Ram, Sh. Kishori Lal, and Sh. Puran Chand. In the present case, Harnam Singh has instituted the suit against the son of Hari Ram, namely Sh. Ashwani Kumar. 18. The earlier suit was filed by Harnam Singh and others for possession of land comprised in Khata No. 42, Min Khatauni No. 48, Khasra No. 210/1 out of Khasra No. 210, measuring 0-1 marla. The parties have placed on record a compromise, Ex. OW-2/A, with respect to Khasra Nos. 209 and 210 inter se the parties. The said compromise was entered into between the parties during the pendency of the earlier Civil Suit bearing No. 194/1986, titled 8 ( 2026:HHC:20991) Harnam Singh and Others vs. Hari Ram and Others. In the said suit, the parties entered into a compromise and the terms and conditions thereof were incorporated in detail. It was agreed between the parties that both parties shall be bound by the terms and conditions of the compromise and, in case of any violation, either party may approach the Court for enforcement of the same. 19. The plaintiff/appellant, after the decision in Civil Suit No. 194/1986 titled Harnam Singh & Others vs. Hari Ram & Others, instituted the present suit for fixation of boundary by way of demarcation, with consequential relief of permanent prohibitory injunction and, in the alternative, for possession. The body of the plaint filed by the plaintiff/appellant nowhere suggests that the plaintiff disclosed the compromise arrived at between the parties in the earlier suit. The entire plaint is silent qua the same, and the plaintiff has suppressed very material and important facts from the Court below. 20. The compromise which was affected between the parties has been duly exhibited and duly signed by Sh. Harnam Singh and even the present defendant Ashwani Kumar. Therefore, the present suit, which has been instituted itself is not maintainable in view of the compromise which has affected between the parties in the previous round of litigation. As rightly pointed out by the 9 ( 2026:HHC:20991) learned First Appellate Court the remedy or the violation of the said compromise lies somewhere else. 21. The learned First Appellate Court has rightly come to the conclusion that, in case the plaintiff was aggrieved by any violation of the compromise effected between the parties, he ought to have approached the competent court of law for enforcement of the same. However, he could not have filed an independent suit. The terms and conditions as incorporated in Ext. OW-1/C are specific and categorical. In the compromise effected between the parties in Civil Suit No. 194/1986, the suit land comprised Khasra Nos. 209 and 210. The new Khasra No. of 209 is Khasra No. 398, and Khasra No. 210 was divided into two numbers, i.e., 210/2 and 210/1. The new Khasra No. 210/2 is 397, and the new Khasra No. 210/1 is 396. Meaning thereby, the suit land bearing Khasra No. 397 was part and parcel of the agreement effected between the parties in the earlier round of litigation. The plaintiff has failed to point out the said fact in the plaint and has suppressed material facts from the Court. Once a compromise has been effected between the parties, the present and subsequent suit for fixation of boundary is not maintainable. 22. The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: 10 ( 2026:HHC:20991) “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a 11 ( 2026:HHC:20991) substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. " 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has 12 ( 2026:HHC:20991) given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. to 22 xx xx xx xx 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High 13 ( 2026:HHC:20991) Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 23. The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here. 14 ( 2026:HHC:20991) 17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there 15 ( 2026:HHC:20991) existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction. 18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives.” 16 ( 2026:HHC:20991) 24. Even otherwise, the learned First Appellate Court has rightly come to the conclusion that, based upon the compromise, the plaintiff has no cause of action and has rightly accepted the appeal filed by the defendant and dismissed the suit filed by the plaintiff. The learned First Appellate Court has appreciated the oral as well as documentary evidence placed on record in its proper perspective, and there is no illegality or perversity in the same. The substantial questions of law are answered accordingly. 25. Consequently, there is no merit in the present appeal and the same is ordered to be dismissed and disposed of accordingly, pending miscellaneous application (s), if any, shall also stand disposed of. 22nd May, 2026 (Romesh Verma) Nisha Judge