1 2026:HHC:29456 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 189 of 2009 Reserved on: 03.7.2026 Date of Decision: 20.7.2026 Krishan Dev & anr. ...Appellants Versus Durgesh Dutt & ors. ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr Surya Chauhan, Advocate. For the Respondents : Mr R.K. Gautam, Senior Advocate, with Ms Radhika Gautam, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 27.02.2009, passed by learned District Judge Una, H.P. (learned Appellate Court), vide which the judgment and decree dated 31.1.2006, passed by learned Civil Judge (Junior Division), Court No. 3, District Una, H.P. (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:29456 same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a mandatory injunction directing the defendants to remove the construction/projection raised on 25.07.1998 shown red and denoted by letters ABCD in the site plan over the passage/street of the plaintiffs and other inhabitants of the locality situated in Abadi Deh and restraining the defendants from raising any construction or causing any obstruction to the passage. It was asserted that the parties are descendants of one Bhikha Ram. They have their abadis over the Abadi Deh. They are using a passage for their ingress and egress located on the Abadi Deh. Gulshan Rai gifted his old structure to the defendants on 20.6.1997. The defendants removed the old structure and started raising fresh construction. Their construction would obstruct the use of the passage. The plaintiffs requested that the defendants not to do so. The matter was also reported to the Gram Panchayat and the Police, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3 2026:HHC:29456 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and locus standi, the plaintiffs being estopped from filing the suit by their act and conduct, the plaintiffs having not approached the Court with clean hands and the suit being bad for mis- joinder of the parties. The contents of the plaint were denied on the merits. It was asserted that the site plan does not depict the correct spot position. It was admitted that the parties have their Abadis on the Abadi Deh, and the plaintiffs are using the common passage located in front of their Abadi. It was asserted that a common Deori exists ahead of the disputed site, and its height is about 8 ft. The height of the construction being raised by the defendants is about 11 ft. The house of the plaintiff and Kewal Krishan has Parolis about 2.5 ft. projecting outside their front wall towards the passage. They have raised Pushta (the projection) towards the common passage. This has raised the height of the passage in front of Kewal Krishan's house by 5 ft. The house of Krishan Murari also has a Paroli measuring 2½ ft. It was specifically denied that the Panchayat ever asked the defendants not to raise construction. It was asserted that 4 2026:HHC:29456 construction was being raised on the land owned by the defendants. Therefore, it was prayed that the suit be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. Learned Trial Court framed the following issues on 15.09.2000/12.6.2002: 1. Whether there exists a passage of the dimension as claimed by the plaintiffs exists on the spot? OPP. 2. Whether the plaintiffs have right to use the said passage by way of easement, as claimed? OPP. 3. Whether the defendants have obstructed the said passage? OPP. 4. Whether the plaintiffs are entitled for the relief of permanent injunction? OPP. 5. Whether the plaintiffs are entitled for the relief of mandatory injunction, as prayed? OPP. 6. Whether the suit is not maintainable? OPD. 7. Whether the plaintiffs are estopped to file the present suit by their own acts and conduct? OPD. 8. Whether the plaintiffs have not approached the Court with clean hands? OPD. 9. Whether the plaintiffs have no locus standi? OPD. 10. Whether the suit is bad for mis-joinder of parties? OPD. 11. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff’s examined Jugal Kishore (PW1), Mahesh Kumar (PW2), plaintiff No.3 Kewal Krishan (PW3), Suresh 5 2026:HHC:29456 Sahotra (PW4), Kishan Dev (PW5), Subhash Chand (PW6), Mansa Ram (PW7) and Bishan Chand (PW8). The defendants examined Raj Kumar (DW1), Defendant No.3 Krishan Murari (DW2), and Ravi Kumar (DW3). Plaintiffs examined Krishan Dev (RPW1) in rebuttal. 7. Learned Trial Court held that the construction being raised by the defendants would obstruct the use of the passage. The defendants had no right to obstruct the plaintiffs from using the passage. The gift deed did not show any projection. Hence, the Trial Court answered Issue Nos. 1 to 5 in the affirmative, Issue No. 6 not pressed, Issues Nos. 7, 9, 10 not proved as not pressed, Issue No.8 in negative and decreed the suit. 8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants filed an appeal which was decided by the learned District Judge, Una (learned Appellate Court). Learned Appellate Court held that the use of the public passage by the plaintiffs was not disputed. The defendants were raising projections over the passage, but this was not causing any obstruction to the use of the passage. The height of the projection of the defendants was 11 ft., whereas an old deori, 8 ft high, existed ahead of the projection. The land 6 2026:HHC:29456 gifted to the defendants had no projection, but that would not deprive them from raising a construction or having a projection. The projection of other houses was at a lower level than the projection of the construction being raised by the defendants. Hence, the conclusion drawn by the learned Trial Court was not correct that the proposed construction of the defendants would obstruct the use of the passage. The judgment and decree passed by the learned Trial Court were not sustainable. Hence, these were ordered to be set aside. 9. Being aggrieved by the judgment and decree passed by the Learned Appellate Court, the plaintiff filed the present appeal, which was admitted on the following substantial question of law on 18.05.2009: - 1. Whether the plaintiffs were not rightly granted relief by learned Trial Court for removal of doors and windows which were opened towards the passage during the pendency of the case and in view of the fact that the main relief of the plaintiffs is mandatory injunction to remove the obstruction in the passage and keeping in view the Section 52-A of Transfer of Proper Act i.e., the principals of lis pendence? 2. Whether the findings are result of misreading of oral and documentary evidence on record especially misreading of (Ex.PW1/A) Gift Deed, (Ex.PW2/B) Site Plan with Gift Deed (Ex.PW4/A), report of Local Commissioner (Ex.PW4/B), Memo of presence, site plan (Ex.PW5/A), copy of Misal 7 2026:HHC:29456 Hakiyat (Ex.PW9/A) and statements of PW3, PW4 and PW5 and DW1 and DW2. 10. I have heard Mr Surya Chauhan, learned counsel for the appellants and Mr R.K. Gautam, learned Senior Advocate, assisted by Ms Radhika Gautam, learned counsel for the respondents. 11. Mr Surya Chauhan, learned counsel for the appellants, submitted that the defendants were not entitled to raise a construction beyond what was gifted to them. The projections being raised by the defendants would cause obstruction to the use of the passage. Learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. 12. Mr R.K. Gautam, learned Senior Advocate, for the respondents, submitted that the learned Appellate Court has recorded a pure finding of fact that the projection being raised by the defendants would not cause any obstruction to the use of the passage, as other projections exist on the passage which are lower in height than the projection of the defendants. There is no perversity in this finding. The learned Appellate Court had 8 2026:HHC:29456 rightly appreciated the evidence, and there is no question of law, much less a substantial question of law, involved in the present appeal. Hence, he prayed that the present appeal be dismissed. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Question of Law No.1: 14. The plaintiffs never claimed the right to remove the doors and the windows which opened towards the passage in their plaint. They had sought a mandatory injunction directing the defendants to remove the projection raised on 25.07.1998, shown in red, denoted by the letter ABCD in the site plan. The site plan does not show any doors or windows opening towards the passage or causing any obstruction. Kewal Krishna (PW3) stated that there was no projection on the passage or any pushta. The defendants put the shuttering which projected to the extent of 1.5 feet over the passage. They were requested not to do so, but they refused. The defendants continued and extended the projection of 1.5 ft., which caused obstruction in the movement. Similarly, Subhash Chand (PW6) stated that the defendants raised a projection of 1.5 ft., which caused obstruction to the use of the passage. He claimed that a door was constructed towards 9 2026:HHC:29456 the passage, which causes obstruction. But this was not asserted by any other person. Krishan Dev (RPW1) has also not stated any obstruction to the passage by the doors and the windows. Therefore, the plaintiffs could not have been granted the relief of restraining the defendants from opening the doors and windows towards the passage, and there is no error in declining the relief of restraining the defendants from opening the doors and windows. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.2: 15. Kewal Krishan (PW3) admitted in his cross- examination that a Deori has been constructed outside the house of Mohinder. He admitted that there is a projection of tin on the roof of Mohinder’s house. He admitted that there was a Chabutra in front of the house of Satpal. He admitted that Paroli of his house projects 1 ft. away from the walls of the house. He admitted that an Atli was constructed outside his house. Krishan Dev (PW5) admitted that a Deori has been constructed, which has a lintel. He admitted that the Parolis of the houses of Krishan Murari and Kewal Krishan projected outside their houses. He admitted that a step has been constructed in the galli 10 2026:HHC:29456 outside the house of Sat Pal. Subhash Chand (PW6) admitted that the houses of Mohinder and Durgesh have Parolis projecting outside the walls. He admitted that the door of Durgesh opens towards the passage. He admitted that an Atli has been constructed outside the house of Kewal Krishan. Mansha Ram (PW7) admitted in his cross-examination that Parolis have been constructed outside the old houses. He admitted that an Atli has been constructed outside the house of Krishan, which is being used by people for sitting. He admitted that a Chabutra has been constructed for Tulsi. Deori is about 7-8 ft., whereas the height of the roof of the house of Durgesh is about 9 ft. There is a difference of about 3-4 ft. height between Deori and the house of the defendant. The roof of the house of the defendant is 3-4 ft. higher than Deori. 16. The statements of these witnesses support the finding of fact recorded by the learned Appellate Court that the houses have Parolis extending outside their homes towards the passage and that a Deori has been constructed, which is about 7- 8 ft., whereas the projection of the house of the defendants is 3- 4 ft. higher than the Deori. Learned Appellate Court had rightly held that since the height of the projection being raised by the 11 2026:HHC:29456 defendants was more than Deori and Deori was not causing any obstruction, it could not be said that the construction of the defendants would cause the obstruction to the passage. This was a finding supported by the evidence and does not suffer from any perversity or misreading of the evidence. 17. Learned Trial Court was swayed by the fact that there was no projection in the Gift Deed executed in favour of the defendants. Learned Appellate Court had rightly held that no such restriction could have been imposed upon the donee because once the Gift Deed was executed, the donee was within his right to use the land in a manner deemed proper by him. Therefore, the absence of the projection in the Gift Deed will not have any impact on the present dispute. 18. Thus, there is no misreading of the evidence by the learned Appellate Court, and this substantial question of law is answered accordingly. Final order: 19. In view of the above, the present appeal fails, and it is dismissed. 20. Pending application(s), if any, also stand(s) disposed of. 12 2026:HHC:29456 21. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 20th July, 2026 (Chander)