2026:HHC:29293 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 196 of 2024 Date of decision: 13.07.2026 Kamlesh Devi ...Appellant. Versus Ajit Singh ...Respondent. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the appellant : Mr. Divya Raj Singh, Advocate. For the respondent : Mr. Pawan Gautam, Advocate. Romesh Verma, Judge (Oral): The present appeal arises out of the judgment and decree, as passed by the learned District Judge, Una, dated 18.06.2024, whereby the appeal preferred by the present appellant/plaintiff was dismissed and the judgment and decree dated 31.07.2023 as passed by the learned Senior Civil Judge, Court No.1, Una, was affirmed, whereby the suit filed by the plaintiff/appellant was dismissed. 2. Brief facts as emerge in the present case are that the plaintiff filed a suit for permanent prohibitory injunction, restraining the defendant from interfering in any manner or Whether reporters of Local Papers may be allowed to see the judgment? -2- encroaching upon by way of raising any sort of construction or changing its nature and character or by throwing any sort of domestic used dirty water over the site marked with the letters ABCDEFG as shown green in colour in the site plan which is part and parcel of khasra No. 1193, situated in village Chattara, Tehsil & District Una, H.P and in alternative suit for possession by way of demolition of superstructure if any raised forcibly during the pendency of the suit. 3. As per case as set up by the plaintiff, the land measuring 2 kanals and 6 marlas bearing khewat No. 536 min khatauni No. 676, khasra No. 1193, as entered in jamabandi for the year 1978-79, situated in village Chattara, Tehsil and District Una, H.P. is owned and possessed by the plaintiff as shown in the revenue record. The plaintiff is having her residential abadi over the site marked with letters ABCDEFG as shown in green colour in the site plan, which is part and parcel of khasra No. 1193 and the plaintiff is residing there with her family. 4. It is the case of the plaintiff that the defendant who is a very active and influential person is a stranger to the suit land and having his residential abadi as shown yellow in colour, situated in khasra No. 1145 adjacent to the suit land, -3- threatened to encroach upon the suit land by way of raising new construction as well as threatening to put stones over the suit land and also threatened to throw the used dirty water towards the suit land without getting any demarcation of khasra No. 1145 and creates boundary disputes between khasra Nos. 1193 and 1145 without any right, title or interest. That the actions of defendant are highly illegal and the same is purely invasion of legal rights of the plaintiff. Therefore, it was prayed that the defendant be restrained from interfering in any manner or encroaching upon by way of raising any sort of construction or changing its nature and character or throwing any sort of domestic used dirty water over the site marked with letters ABCDEFG as shown green colour in the site plan which is part and parcel of khasra No. 1193, situated in Village Chattara, Tehsil and District Una, H.P. and in alternative decree for possession by way of demolition of superstructure if any raised forcibly during the pendency of the suit was also prayed. 5. The suit was resisted by the defendant by filing written statement. He raised various preliminary objections with respect to locus-standi, estoppel and maintainability etc. On merits, all the averments as made in the plaint were -4- specifically refuted and denied. It has been averred that in consolidation proceedings in the village in the year 1975-76, the northern side of khasra No. 1028, new khasra No. 1193 was carved out of 10 karams but in the consolidation, it was wrongly shown as 4+5+6 = 15 karams. Similarly, the southern side of this khasra number was also 10 karams, however, wrongly shown as 10+3 = 13 karams. Therefore, by increasing karu-kans, the area of the suit land has been increased, whereas it has been written to be ‘Badasstoor’ in the Field Book of consolidation in the year 1975-76 and by preparing this wrong record, the area and dimension of the adjoining land of the defendant has been decreased. 6. As per defendant, he filed a revision petition No. 5 of 2012 under Section 54 of the H.P. Consolidation Act for the correction of the record, which is pending before the Divisional Commissioner, Dharmshala, in which, the plaintiff stood served. Therefore, it was prayed that the suit filed on the basis of wrong revenue record regarding which proceedings are pending before the competent court of law is not maintainable. Further, it has been stated that the plaintiff is creating boundary dispute due to wrong record prepared by the Consolidation Department which caused over-lapping in -5- measurement. It has been stated that the suit land is at the lower level, whereas the land in khasra No. 1145 owned and possessed by the defendant is at higher pedestal. Therefore, question of threatening by the defendant to encroach upon the suit land does not arise. The defendant refuted all the averments as made in the plaint and prayed for dismissal of the suit. 7. The plaintiff filed replication to the written statement as filed by the defendant and reiterated all the averments as made in the plaint. 8. The learned trial Court framed issues on 16.11.2015 in the following manner:- “1. Whether the site marked with letters ABCDEFG as shown green in colour in the site plan is part and parcel of khasra No. 1193, as alleged? OPP 2. If issue No.1 is decided in affirmative, whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP 3. Whether, in the alternative, the plaintiff is entitled to decree of possession, as prayed for? OPP 4. Whether plaintiff has no cause of action and locus standi to file the present suit, as alleged? OPD -6- 5. Whether plaintiff is estopped to file the present suit by her own act and conduct? OPD 6. Relief.” 9. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 31.07.2023 dismissed the suit as filed by the plaintiff. 10. Feeling dissatisfied by the judgment and decree, dated 31.07.2023, the plaintiff preferred appeal under Section 96 of CPC before the learned District Judge Una, H.P. on 14.09.2023. The learned First Appellate Court vide its judgment and decree dated 18.06.2024 dismissed the appeal as preferred by the plaintiff and affirmed the findings as returned by the learned trial Court. 11. Still feeling dissatisfied by the aforesaid judgments and decrees, the appellant/plaintiff has instituted the present regular second appeal by invoking Section 100 of the CPC. 12. It is contended by the learned counsel for the appellant that the judgments and decrees as passed by the learned courts below are erroneous and liable to be quashed and set aside. He submits that the learned courts below have not appreciated the real point in controversy and have wrongly -7- dismissed the suit as instituted by the plaintiff. He would submit that after accepting the present appeal, the suit as filed by the plaintiff/appellant deserves to be decreed. 13. On the other hand, learned counsel for the respondent has defended the impugned judgments and decrees as passed by the learned courts below. He submits that there are concurrent findings of facts as returned by the learned courts below and there is no scope of interference in the present proceedings. He submits that the impugned judgments and decrees as passed by the learned courts below are well reasoned and do not call for any interference in any manner. 14. With the consent of the parties, the present appeal is finally heard on admission stage on the following substantial question of law:- “Whether the judgments and decrees are vitiated on account of mis-construing, misinterpreting the oral as well as documentary evidence?” 15. I have heard the learned counsel for the parties and have also gone through the record carefully. 16. The plaintiff/appellant instituted the suit against the defendant in the Court of learned Senior Civil Judge, Court No.1, Una on 18.06.2014 on the ground that land measuring 2 kanals 6 marlas, khewat No. 536 min khatauni No. 676, khasra -8- No. 1193 as entered in jamabandi for the year 1978-79, situated in village Chattara, Tehsil and District Una, H.P. is owned and possessed by the plaintiff in revenue record and the plaintiff is having her residential abadi over the site marked with letters ABCDEFG as shown in the site plan. The plaintiff is residing over the suit land along with her family members. 17. It is the case of the plaintiff that the defendant is a very head strong, active and influential person and is also having his residential abadi as shown in yellow colour, situated in khasra No. 1145 adjacent to the suit land. He threatened to encroach over the suit land by raising construction as well as threatening to put the stones over the suit land and further he also threatened to throw the used dirty water towards the suit land, without getting any demarcation of khasra No. 1145. Though, the defendant was requested not to make any interference in the suit land but the defendant did not accede to her request, therefore, the plaintiff was constrained to file the suit. 18. The submission of the plaintiff has been refuted by the defendant in the written statement. It has been stated that in the consolidation proceedings, wrong record has been prepared whereby the area in the dimension of the adjoining -9- land of defendant has been decreased. It is the case of the defendant that the revision petition No. 5 of 2012 under Section 54 of the H.P. Consolidation Act for correction of the record which was pending before the Divisional Commissioner, Dharmshala in which, the plaintiff was served. It is the case of the defendant that the plaintiff is creating boundary dispute due to wrong record prepared by the Consolidation Department, which caused over-lapping in the measurement. 19. In order to substantiate her case, the plaintiff has examined PW-1 Hans Raj Bharti, Draughtsman who in his deposition has stated that he had prepared the site plan Ext. PW-1/A and he had visited the spot and after perusing the jamabandi he had prepared the said plan. He stated that the site plan was duly signed by him. In his cross-examination, he has stated that he is not in talking terms with the parties. He has stated that except from referring khasra numbers, he has not given the details of the suit land. He has stated that he does not know that after the year 1978-79, any jamabandi was prepared with respect to their village. He stated that he did not demarcate the suit land. He admitted that the site plan was prepared on the asking of the plaintiff. -10- 20. The plaintiff filed her affidavit Ext. PW-2/A whereby all the averments as made in the plaint were reiterated. PW-2 has stated that she is the owner of the suit land and there she is raising the construction of house and residing there along with her family. She stated that the site plan has been placed on record and green coloured portion in the plan ABCDEFG is owned and possessed by her. She stated that the defendant forcibly and without any right tried to throw the dirty water over the suit land. He has also threatened to encroach upon the suit land. It is contended by the plaintiff that the defendant is creating boundary dispute. The plaintiff is old and ailing lady. Therefore, she requested to the defendant not to interfere in the suit land but he failed to accede to the request of the plaintiff. In her cross-examination, in the very first line, she stated that the suit land is 2 kanals 12 marlas. She admitted that the land situated in village Chattara was put under consolidation scheme. She stated that consolidation process is going on. She stated that the land of the defendant is on the higher pedestal as compared to the plaintiff. She denied that no attempt was made by the defendant to encroach over the suit land. -11- 21. In order to rebut the case of the plaintiff, defendant filed his affidavit Ext. DW-1/A and reiterated all the averments as made in the written statement. He stated that during the consolidation, his land has been decreased. The plaintiff is owner in possession of 2 kanals and 6 marlas. However, by means of consolidation process now the land is being shown as 2 kanals and 12 marlas. He stated that his land is situated on the higher pedestal and the land of the plaintiff is on the lower pedestal. Therefore, no question of any encroachment arises at all. He stated that he never threatened the plaintiff to encroach or possess her land. In the cross-examination, he has stated that the suit land is 2 kanals and 6 marlas and he is owner in possession of land measuring 1 kanal 11 marlas. The plaintiff in cross-examination could not extract favourable from the defendant. Perusal of the jamabandi of the suit land placed on record as Ext. P-1 shows that khasra No. 1193 consists of 2 kanals 6 marlas. 22. Perusal of the pleadings and the evidence clearly establishes that the plaintiff failed to plead and prove any kind of interference over the suit land. Though, allegation has been levelled in the plaint that the defendant is trying to encroach over the suit land by forcible interference and trying to raise -12- construction but the said fact remained unsubstantiated. Though, in the first line of the cross-examination, plaintiff has stated that the suit land is 2 kanals 12 marlas but the said fact is falsified from the perusal of the jamabandi Ext. P-1 which shows that the suit land is 2 kanals 6 marlas. 23. Except bald statement of plaintiff, no evidence has come on record to prove any invasion or overt act on the part of defendant. The defendant while cross-examining the plaintiff has suggested that neither he threatened nor he had any thoughts to encroach over the suit land. The plaintiff has failed to discharge her onus to prove interference or threat of any kind over the suit land. Both the courts have concurrently appreciated the factual matrix of the case in a legal manner. 24. The plaintiff had approached discretionary relief of injunction which remained unsubstantiated by the plaintiff by leading cogent and authentic evidence. Both the courts below have rightly came to the conclusion that the onus to prove the interference lies upon the plaintiff and she has failed to establish the same. The learned courts below have rightly appreciated the oral as well as documentary evidence placed on record and have rightly declined the relief of injunction to the plaintiff. -13- 25. The Hon’ble Supreme Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521, has enumerated the scope of Section 100 of CPC, 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.” 26. 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 -14- 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. 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.” 27. 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 -15- 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.” 28. 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. -16- 2. 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. 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 -17- 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 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 misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, -18- 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 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 -19- 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.” 29. 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 Supreme 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.” 30. 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. -20- 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 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.” 31. The learned trial Court has recorded the findings of fact which stood affirmed by the learned First Appellate Court and in the considered opinion of this Court, there is no illegality -21- or perversity in the same. Therefore, the said findings are required to be affirmed. 32. No other point was raised by the learned counsel for the parties. 33. The substantial question of law is answered accordingly. 34. Consequently, in view of the observations as made hereinabove, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. (Romesh Verma) Judge 13th July, 2026. (kck)