2026:HHC:28982 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 177/2024 Decided on: 08.07.2026 Duni Chand ..…Appellant Versus Tara Chand …..Respondent Coram The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting ?1 For the appellant: Mr. Aditya Kaushal, Advocate. For the respondent: Mr. Vijay Chaudhary, Advocate. Romesh Verma, Judge (Oral) The present appeal arises out of the judgment and decree, dated 02.04.2024, as passed by the learned Additional District Judge, District Chamba, H.P., whereby an appeal preferred by the present appellant/plaintiff has been dismissed and the judgment and decree, dated 02.01.2023, as passed by the learned Civil Judge, Chamba, District Chamba, H.P., dismissing the suit of the plaintiff for 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 permanent prohibitory and mandatory injunction, has been affirmed. 2 Brief facts of the case are that the plaintiff/appellant filed a suit under Section 38 of the Specific Relief Act, for permanent prohibitory injunction restraining the defendant, his servants, agents, legal heirs or workmen from causing nuisance and raising any forcible and illegal construction over the joint and undivided suit land comprised in Khasra No. 85, Khata No. 47 min, Khatauni 54 min, situated at Mauza Karel, Pargna Killar, Tehsil Pangi District Chamba H.P., with a view to grab the best and valuable portion of suit land or changing the nature thereof till its partition. Further decree for mandatory injunction was sought in case the defendant forcibly and illegally raised construction or changed nature of the suit land during the pendency of the suit. As per averments, as made in the plaint, suit land is joint, undivided and un-partitioned between the parties and none of the co-sharers is having any right to raise any construction over the joint and undivided suit land till the land is partitioned and, thus, defendant is not entitled to cause any sort of nuisance, raise any forcible and illegal construction over the suit land in any manner 3 with a view to grab the best and valuable portion of the suit land. It was averred that the defendant in the 3rd week of May 2018 started causing nuisance and raising forcible and illegal construction of house with a view to grab the best and valuable portion of the suit land and for that purpose, he also collected huge construction material. The plaintiff requested the defendant not to do so, but all in vain, hence the aforesaid suit. 3 The suit was resisted by the defendant by filing written statement, wherein preliminary objections qua maintainability, cause of action, locus standi, estoppel, suppression of material facts etc. were raised. On merits, all the averments, as made in the plaint, were refuted. Stand was taken that though no formal partition of the suit land has been effected between the parties and other co- sharers, but parties and other co-sharers are in possession of the suit land as per their respective sharers on the basis of family settlement. The total area of the suit land is 9 Biswas and the plaintiff has already raised construction of his house over his part of the suit land i.e. 3 Biswas. The fact of construction of house is also duly recorded in the revenue record. Since the plaintiff has already raised construction of his house by 4 covering his entire 3 biswas of land as such he has got no right, title or interest over the remaining portion of suit land, which has been allotted to the defendant in family settlement and the same is in his possession. Hence, the dismissal the suit was prayed for. 4 The plaintiff filed replication to the written statement, wherein the contents of the plaint were reiterated. 5 On the pleadings of the parties, the learned trial court on 24.05.2019 framed the following issues:- 1. Whether plaintiff is entitled for the relief of permanent prohibitory injunction with respect to the suit land, as prayed for? OPP 2 Whether plaintiff is entitled for the relief of mandatory injunction with respect to the suit land, as prayed for? OPP. 3. Whether the suit is not maintainable, as alleged? OPD. 4. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 5. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged ? OPD. 6. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD. 7. Whether the suit of the plaintiff is bad for non- joinder of necessary parties, as alleged? OPD. 5 8. Whether the plaintiff has not come to the court with clean hands, as alleged? OPD. 9. Relief. 6 The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 02.01.2023 dismissed the suit of the plaintiff for permanent prohibitory and mandatory injunction. 7 Feeling dissatisfied by the judgment and decree, dated 02.01.2023, plaintiff/appellant preferred an appeal before the learned first appellate Court on 28.02.2023, which too came to be dismissed vide judgment and decree dated 02.04.2024. 8 Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiff/appellant has preferred the present regular second appeal. 9 With the consent of the parties, the instant appeal is finally heard at admission stage on the following substantial question of law:- Whether the judgments and decrees of both the learned Court below are based on mis- 6 appreciation and misinterpretation of the oral as well as documentary evidence placed on record? 10 It is contended by Mr. Aditya Kaushal, learned counsel for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and, thus, liable to be quashed and set aside. He has submitted that the learned courts below have not taken into consideration the material placed on record in its right perspective. He has further submitted that after accepting the instant appeal, suit as filed by the plaintiff, deserves to be decreed. 11 On the other hand, Mr. Vijay Chaudhary, Advocate, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, has prayed for dismissal of the instant appeal with costs. 12 I have heard the learned counsel for the parties and have also gone through the material available on the case file. 7 13 The plaintiff/appellant filed a suit for permanent prohibitory and mandatory injunction against the defendant on the pretext that suit land is joint, undivided and un- partitioned between the parties and none of the co-sharers has got any right to raise any construction over the joint and undivided suit land till the same is partitioned. It is the case of the plaintiff/appellant that the defendant/respondent is not entitled to cause any nuisance, raise any illegal construction over the suit land in any manner. The defendant in the 3rd week of May 2018 started causing nuisance and raising forcible and illegal construction of house with a view to grab the best and valuable portion of the suit land. Therefore, he sought decree of permanent prohibitory injunction against the defendant. 14 The defendant has raised preliminary objection with respect to maintainability of the suit on the ground that the plaintiff has not approached the Court with clean hands. Specific stand has been taken by the defendant that the plaintiff has already raised construction of his house over the suit land by covering his entire land to the extent of 3 biswas, thus, he has got no right, title or interest over the remaining portion of suit land. 8 15 In order to corroborate his case, the plaintiff examined himself as PW1 and tendered in evidence his affidavit, Ext. PW1/A, wherein he reiterated all the averments as made in the plaint. In his affidavit, he stated that the parties to the suit along with co-sharer Guman Singh are owners of the suit land, which is joint, undivided and un- partitioned inter se the parties. The defendant in order to prejudice rights of the plaintiff has caused nuisance by raising forcible and illegal construction over the suit land. In his cross-examination, he has categorically admitted that total suit land is measuring 9 Biswas and he has raised construction of his house over some portion of it measuring 3 Biswas, where he is residing along with his family members. Such admission as made by the plaintiff in his cross- examination falsifies his entire case. 16 Learned counsel for the defendant/respondent has drawn attention of this Court to copy of jamabandi for the year 2006-07, Ext. PW1/C, which depicts that the suit land is about 9 Biswas and out of the same, plaintiff/appellant has raised construction of the house over 3 biswas of land. The documentary evidence in conjunction with the admission as made by the plaintiff in his cross- 9 examination, as noticed above, demolishes the case of the plaintiff in its entirety. 17 Perusal of the plaint would go to show that a case has been tried to be projected by the plaintiff/appellant that the suit land is joint inter se the parties, therefore, the defendant/respondent cannot be permitted to occupy best and valuable portion of the suit land, till the same is partitioned by metes and bounds, however the defendant, while contesting the suit, as filed by the plaintiff, has raised specific objection in preliminary objections that the plaintiff has not approached the Court with clean hands as he has suppressed the material fact to the effect that he himself has raised construction of his house over some portion the suit land and the said fact stood admitted by him in his cross- examination when specifically confronted to this effect by learned counsel for the defendant/respondent. 18 Relief of injunction is a discretionary relief and the Hon’ble Supreme Court has repeatedly held that in order to get discretionary relief, the party must approach the Court with clean hands, however in the present case, keeping in view the conduct of the plaintiff/appellant, it is clear that he has not approached the Court with clean hands as after 10 raising and utilizing 3 biswas out of the total suit land, he has filed suit seeking injunction against the defendants. 19 In the considered opinion of this Court, said conduct on the part of the plaintiff by concealing material fact disentitles him to get discretionary relief of injunction. 20 This Court in Ashok Kapoor vs. Murtu Devi 2016 (1) Shimla Law Cases 207, has laid down exposition of law, whereby it has been held that mere making of construction or improvement in the common property does not amount to ouster. If by the act of the co-owner in possession, the 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. It has been further held that if the acts of the co-owner in possession are detrimental to the interest of other co- owners, a co-owner out of possession can seek an injunction to prevent such an act, which is detrimental to his interest. 21 Even otherwise, there is no pleading either in the plaint or in the affidavit, tendered by him in evidence, that the land over which the defendant is raising construction is best and valuable portion of the suit land. Nothing has been proved on record by the plaintiff/appellant in order to 11 establish that by raising such construction, he shall be deprived of his rights that too qua best and valuable portion of the suit land. Merely by stating that the defendant is raising construction over the best and valuable portion of the suit land will not furnish any cause of action in favour of the plaintiff. 22 It is well settled 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 by any act of the co-owner in possession, the 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 12 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. 23 As regards contention of Mr. Aditya Kaushal, Advocate, that 6 Biswas of the land is vacant on the spot, therefore, till the time, the same is partitioned, the defendant cannot be permitted to raise construction over the same, perusal of the pleadings especially plaint shows that the said fact is neither pleaded nor proved by the plaintiff/appellant before the Courts below, therefore, he is estopped to take this plea in the instant regular second appeal. 24 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand. 13 25 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 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 14 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 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 15 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.” 26 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. 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 16 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.A- 2) 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 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 17 preparedness to fulfil his obligation and accept performance when the time for performance arrives.” 27 No other point was urged by the learned counsel for the parties. 28 Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any illegality or perversity in the impugned judgments and decrees, as concurrently passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly. 29 In view of aforesaid discussions, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. 08th July, 2026 (Romesh Verma) (pankaj) Judge