2026:HHC:23590 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.27 of 2026 Decided on: 15.06.2026 Roshal Lal (deceased) through his LRs and others ….Appellants Versus Bhupinder Pal ...Respondent Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? For the appellants: Mr. Jia Lal, Advocate, vice Mr. G.R. Palsra, Advocate. For the respondent: Mr. Devender K. Sharma, Advocate. Romesh Verma, Judge (Oral) The present appeal arises out of judgment and decree as passed by learned District Judge, Mandi, District Mandi, H.P. dated 05.12.2025, whereby the appeal filed by the defendants/appellants was dismissed and the judgment and decree as passed by learned Civil Judge, Court No.2, Mandi, District Mandi, H.P. dated 18.10.2023 was affirmed, whereby the suit filed by the plaintiff was ordered to be decreed. 2. Brief facts of the case are that the respondent/plaintiff filed a suit for permanent prohibitory and mandatory injunction under Sections 38 and 39 of Specific Relief Act, 1963 and for possession of the 2nd floor of the suit premises under Section 4 of Specific Relief Act. It was averred in the plaint that the plaintiff 2 2026:HHC:23590 is the owner-in-possession of the land-cum-house comprised in Khata Khatauni No.704/1125, Khasra Nos.2738, 2741 and 2742, Kitta-3, measuring 59.44 Sq. Meters, situated at Mohal Bhagwahan/36/4, Tehsil Sadar, District Mandi, H.P. which is divided into two portions. There is a double storeyed house consisting of two rooms in ground floor and two rooms in first floor along with verandah built over the land comprised in Khasra Nos. 2741 and 2742, Kitta-2, measuring 30.94 Sq Meters. It is the case of the plaintiff that the house in suit land is two storey slate roofed Kachha house, the ground floor of which is in possession of the plaintiff, while first floor is in possession of the defendants, whom the plaintiff permitted to use/reside therein. As such, they were in permissive possession of the said portion. 3. It is further the case of the plaintiff that, in order to cause mischief and defeat the rights to the plaintiff, the defendants have been causing interference since 06.08.2012 and have removed the slate-roofed Chappar from the portion of verandah over Khasra No.2741 without the consent and permission of the plaintiff for the purpose of putting the slab over the same. They started threatening to remove the slates from the portion of the rooms comprised in Khasra No.2742, in which they were having no right title and interest. It was further alleged that 3 2026:HHC:23590 during the pendency of suit, the defendants laid the slab on pillars by removing the slates from a portion of old construction. Thereafter, they also removed the roof of ground floor verandah and laid another slab on 13.10.2012 below the first slab despite protests from the plaintiff. This act on the part of the defendants is wrong, illegal and unlawful. Therefore, the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from causing any interference over the existing structure over the suit land. Further, decree for vacant possession of the first floor of the house, in which the defendants were permitted to reside, was sought from the learned trial Court. It was also prayed that it may be declared that the defendants have no right, title and interest over the suit property in any manner. 4. The suit was contested by the defendants by filing written statement and raising various preliminary objections with respect to maintainability, enforceability, valuation, estoppel etc. On merits, it was averred by the defendants that they hail from a common ancestor of family. The plaintiff is in possession of the ground floor of the house, and the defendants are in possession of first floor (i.e. second storey) of constructed house on Khasra Nos.2741 and 2742 while in Khasra No.2738, the other family members are in second and third storey as per column of 4 2026:HHC:23590 remarks. The plaintiff and the defendants are co-owners of the suit land and house by virtue of a family arrangement. Further, it has been averred in the written statement that the plaintiff was asked time and again to construct his ground floor and provide the slab to the defendants for construction, as the condition of the building was dilapidated. However, the plaintiff did not take care and accede to the request of the defendants. All the averments as made in the plaint were refuted and denied, and it was prayed that the suit filed by the plaintiff may be ordered to be dismissed. 5. The plaintiff filed replication to the written statement filed by the defendants and all the averments as made in the plaint were reiterated. 6. Learned trial Court framed issues on 12.01.2015 in the following manner: 1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP 2. Whether plaintiff is entitled for decree of possession, as prayed for? OPP. 3. Whether the suit of the plaintiff is not maintainable, in the present form as alleged? OPD 4. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 5. Whether the suit of the plaintiff is not properly valued for the Court fee and jurisdiction, as alleged? OPD. 5 2026:HHC:23590 6. Whether the plaintiff is estopped by his own acts, conducts and deed to file the present suit, as alleged? OPD 7. Whether the plaintiff has not approached this Court with clean hands, as alleged? OPD. 8. Relief. 7. Learned trial Court directed both the parties to adduce evidence in support of their contentions and vide its judgment and decree dated 18.10.2023, learned Civil Judge, Court No.2, Mandi, decreed the suit, as filed by the plaintiff, by passing a decree for vacant possession of first floor comprising of two rooms along with verandah over land comprised in Khewat No.704, Khatauni No.1125, Khasra No.2741, 2742, Kitta 2 as per jamabandi for the year 2006-07 (Ext. PW-1/B) of the land situated at Muhal Bhagwahan, Badbast No.366/4, Tehsil Sadar, District Mandi, H.P. with consequential relief that defendants and their legal representatives were restrained from causing any type of interference in the suit premises. 8. Feeling aggrieved by the judgment and decree as passed by learned Civil Judge, Court No.2, Mandi, District Mandi, H.P. dated 18.10.2023, the defendants preferred an appeal in the Court of learned District Judge, Mandi. Learned first appellate Court vide its judgment and decree dated 05.12.2025 affirmed the 6 2026:HHC:23590 findings as returned by the learned trial Court and ultimately dismissed the appeal filed by the defendants. 9. Still feeling dissatisfied, the defendants/appellants have approached this Court by filing the instant regular second appeal. 10. It is contended by Mr. Jia Lal, learned vice counsel, for the appellants, that the judgments and decrees as passed by learned Courts below are erroneous and liable to be quashed and set aside. Further, he submits that the learned Courts below have not appreciated the real point in controversy and have wrongly decreed the suit filed by the plaintiff/respondent, ignoring the fact that the defendants are in permissive possession thereof. Therefore, the suit ought to have been rejected. 11. On the other hand, Mr. Devender K. Sharma, learned counsel for the plaintiff/respondent, has defended the impugned judgments and decrees. He submits that the learned trial Court has rightly appreciated the oral as well as documentary evidence placed on record and after analyzing the same, rightly decreed the suit filed by the plaintiff, which findings stood affirmed by learned first appellate Court. He further submits that this Court while exercising powers under Section 100 of CPC will not interfere with the concurrent findings of fact. 7 2026:HHC:23590 12. I have heard learned counsel for the parties and have carefully scanned the case file. 13. With the consent of learned counsel for the parties, the appeal is taken up for final hearing at an admission stage on the substantial question of law, which reads as under: 1. Whether the judgments and decrees as passed by learned Courts below are perverse due to non- consideration of documentary evidence whereby the possession of the appellants was duly recorded? 14. The plaintiff filed a suit for permanent prohibitory and mandatory injunction, as well as for the possession of the second floor of the suit premises against the present appellants/defendants. It is the case of plaintiff that he is owner- in-possession of the house, which consists of two storeyed slate roofed Kachha structure, wherein the ground floor is in his possession, while the first floor is in possession of the defendants, who were permitted to use/reside there by the plaintiff. The defendants were permitted to reside in the suit premises and their possession over the same is permissive. It is the case of the plaintiff that during the pendency of the suit, the defendants laid the slab on pillars by removing the slates from portion of old construction and also removed the roof of the verandah of the ground floor and laid another slab on 13.10.2012. 8 2026:HHC:23590 The possession of the defendants over the first floor of the suit premises is permissive, however, they have now raised construction over the suit land. Although, the defendants were asked to vacate the premises and handover the vacant possession to the plaintiff, they failed to do so. Hence, the possession of the defendants is illegal, unlawful and unauthorized. Therefore, the plaintiff is entitled for vacant possession. 15. The defence as set up by the defendants is limited only to the extent that the plaintiff and the defendants are the co- owners of the land and house by virtue of family arrangement. It is the case of the defendants that, being co-owners they requested the plaintiff to construct his ground floor, but the intention of the plaintiff was malafide as he intended to demolish the first floor to ground and for fulfilling his malafide intention, he had preferred the suit on false and frivolous grounds. 16. In order to substantiate his case, the plaintiff examined himself as PW-1. The affidavit has been placed on record as Ext. PW-1/A and all the averments, as made in the plaint, have been reiterated. It has been stated in the affidavit that the defendants were neither co-sharers in the property nor they were having any right, title and interest over the same. The 9 2026:HHC:23590 defendants from 06.08.2012 started removing the slate of the suit premises with a view to lay slab over the same. The plaintiff in his deposition stated that in his absence in the month of August 2012, the defendants removed the wooden flooring of the first floor from inside and started erecting pillars inside the suit premises without touching the outer structure and thereafter started removing the slates on 06.08.2012. The defendants were requested time and again by the plaintiff to refrain from the commission of their wrongful acts, but they did not heed to the request made by the plaintiff. In the cross-examination, the plaintiff has denied that the suit premises is joint inter se the parties. He further denied that in the column of ownership, the plaintiff has been shown wrongly. In the cross-examination, he has admitted the possession of the defendants. There is admission on the part of the plaintiff that the defendants are in possession since 1943. Further, he has denied that the house is in the ownership of all the co-sharers. 17. In order to rebut the evidence of the plaintiff, defendant No.3 Yogesh Kumr alias Yogi filed his affidavit (Ext. DW-1/A). In his affidavit, he has stated that the defendants hail from the common ancestor of the family. The plaintiff is in possession of ground floor of house and defendants are in possession of 1st floor i.e. second storey of constructed house in 10 2026:HHC:23590 Khasra Nos.2741 and 2742 while in Khasra No.2738 the other members are in second and third storey, as per column of remarks mentioned in the jamabandi. He stated that the defendants are co-owners with the plaintiff and that the defendants requested the plaintiff to construct his ground floor, but on account of malafide intentions, the plaintiff had filed the suit. 18. In the cross-examination DW-1 stated that he cannot tell that who was the common ancestor of the parties. He stated that he cannot tell the name of the ancestor of the plaintiff. He stated that in Ext. PW-1/B, the plaintiff has been shown to be the owner, however, self stated that their possession in Khasra No.2741 and 2742 has been incorporated in the revenue record. He denied the suggestion that any permission was granted by the plaintiff to the defendants to live in the premises. 19. The plaintiff has placed on record copy of jamabandi for the year 2006-07 (Ext. PW-1/B) which clinches the entire controversy in hand. As per Ext. PW-1/B, Bhupinder Pal, plaintiff, is shown to be the owner of the suit premises comprising of Khasra Nos.2738, 2741 and 2742. In Khasra No.2741 on the second floor, Roshal Lal, defendant No.1 and Dharam Pal, defendant No.2, are shown to be in possession of the suit 11 2026:HHC:23590 premises. Similarly, in Khasra No.2742 on the second floor, Roshan Lal, defendant No.1, Dharam Pal, defendant No.2 are shown to be in possession. 20. Learned Courts below came to the conclusion that the defendants who are in permissive possession have no title to retain the possession of the suit premises. Ext. PW-1/B shows the plaintiff to be the owner of the property. On the strength of title, learned trial Court has rightly decreed suit for possession in favour of plaintiff. Though, the consistent stand of the appellants/defendants in the pleadings and in the evidence is that they have been in continuous possession of the suit premises since 1943. However, it is well settled principle of law that permissive possession however long it may continue, does not confer title. In such cases, the possession remains subordinate to the owner’s title. 21. Learned Courts below rightly came to the conclusion that it is not the case of the defendants that they have acquired title over the suit premises by virtue of adverse possession. Therefore, the concurrent findings of fact as returned by the learned Courts below do not call for any interference. Learned Courts below have taken into consideration the oral as well as documentary evidence placed on record and in conjunction with 12 2026:HHC:23590 the evidence as led by the respective parties, especially in view of the admission as made by the defendants that they are in possession of the suit premises, the suit of the plaintiff on the strength of the title has been rightly decreed by the learned trial Court, which findings have been affirmed by the learned first appellate Court. 22. The findings of facts, as recorded by learned Courts below, do not call for any interference, especially, in view of the exposition of law as laid down by Hon’ble Supreme Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521, wherein the scope of Section 100 of CPC has been enumerated, which reads as under: “10. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts. 20. In our considered view the lower Appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by Limitation. Even assuming that another view is possible on a re- appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material.” 13 2026:HHC:23590 23. Similarly, the Hon’ble Apex Court in Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under: “10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on Court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline. 11. The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 CPC, have been laid down by this Court in a Constitution Bench decision in Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. 14 2026:HHC:23590 Ltd There is also a later decision of this Court in Mahindra and Mahindra Ltd. v. Union of India3. It is unnecessary to deal at length with that aspect any further.” 24. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others, AIR 1999 SC 2213, the Hon’ble Supreme Court has held as under: “5. 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 are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless 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 without evidence.” 15 2026:HHC:23590 25. In Naresh and others vs. Hemant and others, (2022) 18 SCC 802, the Hon’ble Supreme Court held as under: “10. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered. 16 2026:HHC:23590 12. In Madamanchi Ramappa v. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows: “12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that 17 2026:HHC:23590 in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.” 13. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur v. Kaki, (2007) 1 SCC 546, holding as follows: “71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly 18 2026:HHC:23590 misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. xxxx 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. xxxx 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the 19 2026:HHC:23590 provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” 14. The order of the High Court interfering with concurrent findings of facts by two courts is, therefore, held to be unsustainable in exercise of the powers under Section 100 of the Civil Procedure Code. The order of the High Court is consequently set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial Court and the First Appellate Court are restored. The suit of the plaintiffs is dismissed. The present appeal is allowed.” 26. In Brij Narayan Shukla (dead )through legal representatives vs. Sudesh Kumar Alias Suresh Kumar (dead) through Legal Representatives and others, (2024) 2 SCC 590, the Hon’ble Supeme Court held as under: “10.2 The High Court was hearing the Second Appeal under section 100 of Code of Civil Procedure, 1908 and it having reappreciated the findings to disturb findings of fact, committed an error.” 20 2026:HHC:23590 27. In Civil Apepal No.5131 of 2025, titled as R. Nagaraj (dead) through LRs and another vs. Rajmani and others, the Hon’ble Supreme Court held as under: “7. By the impugned judgment and order and without answering anything on the substantial questions of law framed/formulated, absolutely in a casual manner, the High Court has allowed the Second Appeal and has set aside the concurrent findings recorded by both the courts below and thereafter has remanded the matter to the learned trial Court permitting the original plaintiff to amend the plaint and pray for fixation of the boundary. 9. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all. From the impugned judgment and order passed by the High Court, it appears that the High Court has exercised the powers as if the High Court was deciding the Writ Petition under Article 226 of the Constitution of India. The High Court has not appreciated at all that the High Court was deciding the Second Appeal under Section 100 of the CPC and that too against the concurrent findings of fact by both the courts below, which were, as such, on appreciation of evidence on record. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable.11. At the cost of repetition, it is observed that the High Court was dealing with the Second Appeal under Section 21 2026:HHC:23590 100 CPC and the concurrent findings recorded by both the courts below which were on appreciation of evidence on record. Neither at the stage of deciding the suit nor even before the first Appellate Court even such a prayer was made to amend the plaint, which is now permitted by the High Court, despite the fact that earlier in the suit during the course of trial, the plaint was amended. Under the circumstances also, the impugned judgment and order passed by the High Court is unsustainable.” 28. Both the learned Courts below have rightly determined the point in controversy concurrently and there is no infirmity or illegality in the impugned judgments and decrees passed by the learned Courts below. 29. No other point urged by the learned counsel for the parties. 30. The substantial question of law is answered accordingly. 31. In view of above discussions, the present appeal being devoid of any merit is dismissed. Pending applications, if any, also stand disposed of. ( Romesh Verma ) Judge June 15, 2026 (vt)