( 2026:HHC:21226 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 285 of 2023 Date of Decision:27.05.2026 _________________________________________________ Sh. Ram Dass ...Appellant. Versus Krishan (deceased) through LRs & others ...Respondents. Coram The Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting? For the appellant: Mr. Vivek Thakur, Advocate, vice Mr. Sanjeev Sood, Advocate. For the respondents: Mr. G.R.Palsra, Advocate, for respondents No.1 (a) to 1(d), 2,3 and 5. Respondent No. 4 proceeded against ex-parte. 4._ ________________________________________________ Romesh Verma , Judge(oral) The present appeal arises out of the judgment and decree, dated 02.09.2023, passed by the learned Additional District Judge-I, Mandi, District Mandi, Himachal Pradesh, whereby the appeal filed by the present appellant has been dismissed and the judgment and decree passed by the learned Civil Judge, Court No. 2, Mandi, District Mandi, H.P., 2 ( 2026:HHC:21226 ) dated 31.08.2021 has been affirmed, whereby the suit filed by the plaintiff/appellant was ordered to be dismissed. 2. Brief facts giving rise to the present appeal are that one Kumari Kusum filed a suit for permanent prohibitory and mandatory injunction against the defendants before the learned Trial Court. It was averred in the plaint that the suit land, comprised in Khasra Nos. 805, 806, 814, 816, 808, 809, 819, 802, 803, 804, 807, 871 and 872, Khata Khatoni Nos. 232/318 and 233/319 to 322, measuring 682.45 square metres, situated in Mohal Mangwai, Tehsil Sadar, District Mandi, H.P., was jointly owned and possessed by the parties and other co-sharers. 3. It was further averred that the defendants, without any legal right and without the consent of the plaintiff, were bent upon changing the nature of the suit land and threatened to cause irreparable loss and injury to the plaintiff by usurping valuable portion thereof. Despite repeated requests made by the plaintiff to desist from their illegal acts and not to interfere with the suit land by raising construction thereupon, the defendants failed to accede to such requests. Consequently, the plaintiff sought a decree of permanent 3 ( 2026:HHC:21226 ) prohibitory injunction restraining the defendants, their agents, servants, assignees, etc., from causing any interference with the suit property or any part thereof in any manner. It was further prayed that a decree for mandatory injunction be passed in favour of the plaintiff and against the defendants. 4. During the pendency of the suit, Kusum Kumari died, present appellant was substituted as her legal heir on the basis of a Will. 5. The suit was contested by the defendants by filing a written statement and raising various preliminary objections therein. It was submitted that the plaintiff had neither any right, title, or interest in the suit land, nor was he in possession of even an inch thereof. It was further submitted that the revenue entries were wrong and incorrect and, therefore, not binding upon the rights of the defendants. All the averments made in the plaint were refuted and denied, and the defendants prayed for dismissal of the suit. 6. The plaintiff filed a replication to the written statement and reiterated the averments made in the plaint. It was averred in the replication that the plaintiff had purchased share in the joint property from one of the co-sharers through 4 ( 2026:HHC:21226 ) a registered sale deed dated 12.04.1978. It was further averred that a suit for joint possession filed by the plaintiff on 08.06.1978 was decreed on 03.10.1984, and the appeal preferred by the defendants against the said decree was also dismissed. It was further averred that the plea raised by the defendants, as well as other co-sharers, claiming right and title by way of adverse possession, had already been rejected by the Courts. 7. The learned Trial Court framed the following issues on 06.11.2013: 1. Whether defendants are raising construction over the suit land, as prayed ? OPP 2. Whether plaintiff is entitled to decree for permanent prohibitory injunction, as prayed for ? OPP 3. Whether plaintiff is not in possession of the suit land, as alleged ? OPD 4. Relief. 8. The learned trial Court directed the parties to lead evidence in support of their contentions. After appreciating the oral as well as documentary evidence adduced by the parties, the learned trial Court vide its judgment and decree dated 31.08.2021 dismissed the suit as filed by the plaintiff. 5 ( 2026:HHC:21226 ) 9. Feeling aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/appellant preferred an appeal before the learned Additional District Judge-I, Mandi on 11.07.2022. The learned first Appellate Court, vide its judgment and decree dated 02.09.2023, dismissed the appeal as filed by the present appellant and affirmed the findings recorded by the learned trial Court. 10. Still dissatisfied, the plaintiff/appellant has filed the instant regular second appeal before this Court. 11. It is contended by Mr. Vivek Thakur, learned vice counsel appearing for the appellant, that the impugned judgments and decrees passed by the learned Courts below are erroneous, illegal and liable to be set aside. He has submited that the courts below have not determined the point in controversy in its true perspective and have declined the relief, which ought to have been granted to the plaintiff. He has further submitted that after accepting the regular second appeal, the suit as filed by the plaintiff deserves to be decreed. 12. On the other hand Mr. G.R.Palsra, learned counsel for the respondent has defended the impugned judgments 6 ( 2026:HHC:21226 ) and decrees passed by the learned Courts below. He has submitted that the findings of fact recorded by both the learned courts below do not call for any interference. He has further submitted that while invoking the provisions of Section 100 of the CPC, this Court has limited jurisdiction to interfere with the concurrent findings of facts, until and unless this Court is satisfied that the judgments and decrees, as passed by the learned courts below, are perverse. According to him, there is no illegality, perversity and infirmity in the impugned judgments and decrees, therefore, the present appeal be dismissed. 13. I have heard learned counsel for the parties and, with their consent, the matter has been finally heard at the admission stage on the following substantial question of law: “Whether the judgments and decrees passed by the learned Courts below are erroneous and liable to be quashed and set aside being the result of misconstruction and mis- appreciation of the oral as well as documentary evidence available on record?” 14. The plaintiff/appellant filed a suit for permanent prohibitory injunction before the learned trial Court on the premise that the suit land was jointly owned and possessed by the parties and that the defendants were attempting to 7 ( 2026:HHC:21226 ) interfere over the same by changing its nature and raising construction thereupon without any legal right, title or consent of the plaintiff. 15. It is the case of the plaintiff that the defendants, in order to deprive the plaintiff of his genuine claim is trying to interfere in the peaceful possession over the suit property and by raising the construction, they are trying to change the nature of the suit land. 16. On the other hand, the defendants have denied all the averments made in the plaint and there is categorical stand of the defendants that the plaintiff is out of possession and is not occupying even an inch of the suit land, therefore, the suit filed for injunction was liable to be dismissed. 17. In order to corroborate his case, the plaintiff entered the witness box as PW-1 and tendered his affidavit Ex. PW1/A. As per the same, it was stated by the plaintiff that the suit land was jointly owned by the parties and other co-sharers. The defendants, on the strength of muscle power, were trying to change the nature of the suit land by raising construction thereupon from 10.09.2010. He further deposed that he had purchased a full share in the joint property from 8 ( 2026:HHC:21226 ) one of the co-sharers through registered sale deed dated 12.04.1978. Thereafter, suit for joint possession filed by him was decreed on 31.10.1984. The appeal preferred by the defendants and the other co-sharers, however, was dismissed on 30.08.1986 and thereafter, Regular Second Appeal as filed by the defendants, was also dismissed by this Court on 11.11.1986. 18. The plaintiff further stated that he had also filed a suit for partition seeking separation of his share from the other co-sharers, was decreed on 28.09.2001. The appeal preferred by the defendants against the said judgment, was dismissed on 30.08.2003 and thereafter, second appeal as filed by the defendants, came to be dismissed by this Court on 05.01.2004. It was further deposed that despite repeated requests made by the plaintiff to desist from illegal interference, the defendants failed to do so. 19. During cross-examination, PW-1 Ram Dass stated that Kusum Kumari had filed a suit with respect to Khasra No. 801-812, 814 and 816. He denied that he did not file the suit with respect to khasra No. 801. He admitted that the suit land is in the possession of Sudhir, Sukant, Sharda, Shobhna, 9 ( 2026:HHC:21226 ) kaushlya Devi and they are also the co-sharers over the suit land. He stated that the said persons were occupying Khasra Nos. 802, 803, 804 and probably Khasra No. 801 also. He denied the suggestion that Khasra Nos. 807, 811, 809, 810, 805, 806, 814 and 816 are being possessed by Sh. Kishori and the other defendants. He stated that the defendants are raising construction of a house after demolishing the old house. He further admitted that Khasra Nos. 801 to 807 are being possessed and occupying by Sh. Sukant. He admitted that the predecessors-in-interest of the defendants had been occupying the suit land since the time immemorial. 20. AW-1 is the statement of Shri T.K. Pathania, Advocate, who was appointed as Local Commissioner by the learned trial Court. In his deposition, he stated that pursuant to the order dated 03.10.2015 passed by the learned trial Court, he visited the spot and carried out demarcation of Khasra Nos. 614, 81, 605, 812, 806, 807,808, 809 and 810. The reference is Ex. AW1/A and report is Ex. AW1/B, respectively. He stated that at the time of spot inspection, defendants No. 6, 8 and the plaintiff were present on the spot. He further stated that no revenue official was 10 ( 2026:HHC:21226 ) associated during the demarcation proceedings. According to him, Nimmo Devi had raised pillars and plinth over the old existing structure and the construction was being carried out over an already existing house. 21. In rebuttal, DW-1 Kishori Lal entered the witness box and tendered his affidavit Ex. DW1/A in evidence. He deposed that the defendants were owners in possession of the suit land and that the plaintiff had no right, title or interest therein. He further stated that the allegations regarding illegal construction were vague and baseless. 22. During his cross-examination, DW-1 admitted that Kusum Kumari had died in the year 2012. He further admitted that as per Jamabandi Ext. DW1/B, the name of owner was reflected as Kusum Kumari. The Jamabandi Ex.DW1/B further showed Khasra No. 810 to be jointly owned by the co- sharers, however, the same was recorded to be in the exclusive possession of Smt. Nimma Devi. 23. It is the case of the plaintiff that the suit land is joint amongst the parties, therefore, the defendants cannot be permitted to raise construction over the same till the time the same is partitioned by metes and bound. It is admitted by 11 ( 2026:HHC:21226 ) both learned counsel for the parties that after passing of the preliminary decree the final decree stands passed by the learned trial court and now only the possession has to be delivered to the respective parties. 24. Coming to the facts of the case the plaintiffs in order to substantiate his case has placed on record Jamabandi Ex. PW1/B, which clearly reflects that Khasra No. 810 was in the exclusive possession of Smt. Nimma Devi. 25. The principle of seeking injunction against the co- sharers has been well defined by this Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shimla Law Cases 207, wherein it has been held that a co-sharer cannot be restrained from raising construction on the joint land on the ground that he has no right to raise construction on the joint land. After an exhaustive review of the case law, it was held as under:- “46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co- sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:- (i) A co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely and simply because he is a co- owner unless any act of the person in possession of the property 12 ( 2026:HHC:21226 ) amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession. (ii) Mere making of construction or improvement of, in, the common property does not amount to ouster. (iii) If by the act of the coowner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek -11- an injunction to prevent the diminution of the value and utility of the property. (iv) If the acts of the co-owner in possession are detrimental to the interest of other co- owners, a coowner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest. (v) Before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury, which materially would affect his position or his enjoyment, or an accustomed user of the joint property would be inconvenienced or interfered with. (vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and the exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.” 26. The present settled principle of law is that a co- owner is not entitled to an injunction restraining another co- owner from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession. Mere making of construction or improvement in the common property does not amount to ouster, rather, if any act of the co-owner in possession the 13 ( 2026:HHC:21226 ) value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property. The acts of the co-owner in possession and a co-owner out of possession can seek an injunction to prevent such an act which is detrimental to his interest. Therefore, a co-sharer cannot be restrained from raising construction over the joint land unless it is shown that such an act would constitute prejudice and mere raising of construction does not amount to any prejudice as has been held by this Court in Ramesh Kumar vs. Sheetal & others 2021 (1) Shimla Law Cases 377. 27. In the present case, the plaintiff has not been able to establish that the defendants are raising construction over a specific portion of the joint land. There is no pleading or proof that the defendants are exceeding their share and the construction, if any, being raised is detrimental and prejudicial to the rights of the plaintiff. Merely for the reason that the defendants are raising construction does not entitle the plaintiff to claim or get the relief of injunction. There is an admission on the part of the plaintiff that the defendants are 14 ( 2026:HHC:21226 ) raising construction over the old house. There is a categorical admission on the part of the plaintiff that the predecessor-in-interest of the defendants are in possession of the suit land since time immemorial. It is not the case of the plaintiff that defendants are exceeding their share which shall prejudice the plaintiff or the construction as has been raised shall diminish the value and utility of the suit land. 28. The learned courts below have rightly determined the point in controversy and rightly declined the relief of injunction, which is a discretionary and equitable relief as sought by the plaintiff. 29. The local commissioner has stated in his examination that his report is Ext. AW-1/B and the spot was identified by the plaintiff himself alongwith defendants No. 6 and 8. The Local Commissioner in his deposition has admitted that he cannot identify on which khasra number the construction was being raised by the defendants. The statement of the local commissioner falsifies the case of the plaintiff that the defendants are raising construction over the entire suit land. The report of Local Commissioner Ext. AW- 1/B in conjunction with the oral evidence as led by the 15 ( 2026:HHC:21226 ) plaintiff does not inspire confidence. Therefore, the courts below have rightly declined the relief as sought by the plaintiff. 30. This Court is dealing with a Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, which reads as follows: “100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not 16 ( 2026:HHC:21226 ) formulated by it, if it is satisfied that the case involves such question.]” 31. In the present case, there are concurrent findings of fact rendered by the learned Courts below and the scope of interference as per the various judgments of the Hon’ble Apex Court is very narrow and limited. The Hon’ble Apex Court has held in its various decisions that the High Court cannot re- appreciate the evidence to substitute its own view for a plausible finding of fact arrived at by the first appellate court. 32. 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: “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 17 ( 2026:HHC:21226 ) 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 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 18 ( 2026:HHC:21226 ) 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 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 19 ( 2026:HHC:21226 ) "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 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.” 33. 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 20 ( 2026:HHC:21226 ) based on misreading of evidence; and (d) where it is perverse. But that is not the case here. 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 existed no occasion for the High Court, exercising power under Section 100 CPC, to 21 ( 2026:HHC:21226 ) 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.” 34. That there are concurrent findings of fact arrived by the Courts below. As per the mandate and exposition of law laid down by the Hon’ble Supreme Court the scope of 22 ( 2026:HHC:21226 ) interference while exercising power under Section 100 of CPC is narrow and limited. 35. The Courts below has appreciated the oral as well as documentary evidence placed on record which does not call for any interference. Substantial question of law is answered accordingly. 36. Consequently, there is no merit in the present appeal and the same is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed off. 27th May, 2026 (Romesh Verma) Nisha Judge