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2026 DAILYLAW 16579 (HP)

Jai Pal v. Nirmla Devi

2026-03-23

Romesh Verma

body2026
JUDGMENT : Romesh Verma, J. The present appeal arises out of judgment and decree, as passed by learned Additional District Judge, Sarkaghat, District Mandi, H.P. dated 23.12.2023, whereby the appeal filed by the present appellant was dismissed and the judgment and decree as passed by the learned Civil Judge( Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. dated 31.3.2023 was affirmed. 2. Brief facts of the case are that the present appellant/plaintiff filed a suit in the Court of learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. on 6 th September, 2014, for permanent prohibitory and mandatory injunction under Sections 38 and 39 of the Specific Relief Act, 1963. It was averred in the plaint that the land comprised in Khewat Khatauni No.130/165, bearing Khasra No.518, land measuring 00-22-60 hects. is situated at Mouza Dharmpur/97, Tehsil Sarkaghat, District Mandi, H.P. The suit land is jointly owned and possessed by the plaintiff/appellant and defendant/respondent along with other co-sharers. The house of the plaintiff/appellant is consisting of two floor, including ground and first floor, and adjoining house is of defendant/respondent. The construction of slabs of plaintiff and defendant houses are connected with each other, however, the plaintiff in order to earmark the extent and boundary of his slabs as well as his first floor, left 3 inches portion of constructed slabs by changing the size and dimension of existing pillars of ground floor of size 12X12 inches to first floor in size 9x12 inches. The plaintiff has made about 4 inche in height bricks wall on the above left area of slabs for the purpose of stopping the flow of water of his house’s slabs towards the slabs of defendant. 4. It was averred that the defendant/respondent has got no right, title and interest to interfere in any manner over the suit property as well as over the slab of the plaintiff and any unwarranted act and deed on the part of defendant/respondent qua the suit property of the plaintiff/appellant amounts to aggression and evasion on her part over the suit property. In order to harm and cause prejudice to the plaintiff/appellant, the defendant/respondent has engaged the mason and labourer on the spot and has undertaken forceful construction. The said construction is of such a nature that it is touching with the exiting exposed steel of pillars of plaintiff/appellant’s house without leaving any necessary space and setbacks. In order to harm and cause prejudice to the plaintiff/appellant, the defendant/respondent has engaged the mason and labourer on the spot and has undertaken forceful construction. The said construction is of such a nature that it is touching with the exiting exposed steel of pillars of plaintiff/appellant’s house without leaving any necessary space and setbacks. In case the defendant/respondent succeeded in raising the construction in that event the existing steel pillars are going to be covered by the construction of the defendant/respondent and ultimately, the construction of the defendant will come over the suit property and virtually it will cover the area of the plaintiff. 5. The defendant was requested to stop the construction over the suit property, however, being a headstrong persons, he did not adhere to the request of the plaintiff and threatened the plaintiff to implicate him in a false case. Though, local Panchayat was involved in order to resolve the controversy in question by amicable means, but the defendant being headstrong person refused to listen to the request of Panchayat members. Therefore, the plaintiff filed a suit for permanent prohibitory and mandatory injunction restraining the defendant from raising forcible construction and from causing any interference in any manner over the suit property as well as existing slab of the house of the plaintiff. Further, a decree of mandatory injunction directing the defendant to demolish and remove the construction, if made during the pendency of suit was also prayed. 6. The suit was contested by the defendant by filing a written statement and preliminary objections with regard to maintainability, cause of action, non-joinder, locus standi etc. were taken by the defendant. On merits, all the allegations as levelled in the plaint were refuted. It was averred in the written statement that slabs of the plaintiff/appellant and those of the defendant/respondent are joined at the first storey and the plaintiff/appellant has raised the construction of his house in such a way that he has not left 3 feet space between the two houses, rather, he has, in fact, touched the pillars of the ground floor and first floor with the pillars and walls of the defendant/respondent. It was further averred that the defendant/respondent had purchased the land in the year 2004 and completed the first storey in the year 2009. It was further averred that the defendant/respondent had purchased the land in the year 2004 and completed the first storey in the year 2009. The plaintiff/appellant purchased the land in the year 2009 and projected the Chhaja towards the gallery and house of the defendant/respondent, but the plaster work has not been done by the plaintiff. The plaintiff/appellant has not reduced the dimension of the pillars as alleged, which fact can be ascertained by appointing a Local Commissioner. It was denied that the defendant/respondent has removed the brick wall as alleged by the plaintiff/appellant. On the contrary it was stated that the defendant has affixed the bricks around the four side of the slabs to collect the natural water and to drain it on his own land. The defendant is only covering the staircase as the natural water falls on the same and flows down towards the room and gallery of the defendant. It is the plaintiff who is harassing the defendant by carrying out construction in a haphazard manner. Therefore, the defendant prayed for dismissal of the suit filed by the plaintiff. 7. The plaintiff/appellant filed replication to the written statement and all the averments as made in the plaint were reiterated. 8. The learned trial Court framed issues on 22.03.2018 in the following manner:- 1.Whether the defendant is causing interference in the suit land by raising forcible construction as alleged ?OPP 2. Whether defendant is required to remove th construction as raised by her over the suit land? OPP 3.Whether suit is not maintainable in the present Form?OPD 4. Whether the plaintiff has no cause of action to file the present suit?OPD. 5. Whether plaintiff has concealed the material facts from the court, if so, its effect? OPD 6. Relief. 9. Learned trial Court directed both the respective parties to adduce evidence in support of their contentions. Learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. vide judgment and decree dated 31.03.2023 dismissed the suit as filed by the plaintiff. 10. Feeling dissatisfied, the plaintiff/appellant preferred an appeal in the Court of learned Additional District Judge, Sarkaghat, District Mandi on 31.05.2023, however, the same was ordered to be dismissed on 23.12.2023. 11. Still feeling aggrieved, the plaintiff/appellant is before this Court by filing the present regular second appeal. 12. It is contended by Mr. 10. Feeling dissatisfied, the plaintiff/appellant preferred an appeal in the Court of learned Additional District Judge, Sarkaghat, District Mandi on 31.05.2023, however, the same was ordered to be dismissed on 23.12.2023. 11. Still feeling aggrieved, the plaintiff/appellant is before this Court by filing the present regular second appeal. 12. It is contended by Mr. Devender K. Sharma, learned counsel for the plaintiff/appellant, that the learned Courts below failed to appreciate the real point of controversy and passed the judgment and decree based merely on surmises and conjectures. He submits that based upon oral as well as documentary evidence placed on record, the plaintiff/appellant is entitled to a decree of permanent prohibitory injunction and mandatory injunction. 13. On the other hand, Mr. Sushant Vir Singh, learned counsel for the defendant/respondent, has defended the judgment and decree as passed by learned Courts below. He submitted that learned Courts below have concurrently dismissed the suit as well as the appeal preferred by the plaintiff/appellant. Therefore, being a question of fact, the present regular second appeal also deserves to be dismissed. 14. With the consent of the parties, the present appeal is finally disposed of at the admission stage. 15. The precise case of the plaintiff/appellant, as projected in the plaint, is that both the parties are co-sharers, who have raised construction of their buildings just adjacent to each other. It is an admitted fact that the constructions of slabs of both the parties are connected with each other. It is the case of the plaintiff that he changed the size and dimensions of the existing pillars on the ground floor from 12x12 inches to 9x12 inches for the first floor. The plaintiff has erected about 4 inches high wall on the above left area of the slabs for the purpose of stopping water of his house slab towards the slab of the defendant. It is also the case of the plaintiff that he has reduced the size and dimension of the existing pillars by changing its size from 12x12 inches to 9x12 inches for the first floor, thereby leaving 3 inches space on the slab of the first floor. It is further the case of the plaintiff that the defendant has dismantled 4 inches high brick wall at the back of the plaintiff. Further, that the defendant has constructed a staircase slab that overlaps on the slab of the plaintiff. 16. It is further the case of the plaintiff that the defendant has dismantled 4 inches high brick wall at the back of the plaintiff. Further, that the defendant has constructed a staircase slab that overlaps on the slab of the plaintiff. 16. In order to support his case, the plaintiff himself examined himself) as PW-1. In his deposition, he reiterated the claim that the house of the defendant is adjacent to his house, with the slabs of both buildings touching one another. He has submitted that he has left space of 3 inches by changing the dimensions of the pillars from 12x12 inches on the ground floor to 9x12 inches on the first floor. He stated that in the vacant area, he constructed the brick wall so that the rainwater could be harvested. He stated that the brick wall was dismantled by the defendant at his back and thereafter the defendant started raising construction over the stairs of the plaintiff. 17. The plaintiff also examined PW-2 Krishan Dev, who has also deposed on the same lines of the plaintiff. PW-3 is Rahul Kumar, he has also stated on the same lines as submitted by PW1 Jai Pal. PW-4, Prithvi Raj, Photographer, was also examined by the plaintiff. 18. The defendant, in order to rebut the case of the plaintiff, examined Lal Singh Thakur, Advocate, as DW-1. He submitted that in the aforesaid case he was appointed as Local Commissioner by the Court and pursuant to Court’s order dated 17.10.2015 he visited the spot. In the presence of the parties and their respective counsel, he directed the plaintiff to raise the construction of his house over his own pillars and the defendant/respondent should raise construction over his own brick wall. He further submitted that when he revisited the spot in the year 2016 in the absence of the parties, it was found that the parties had complied with directions issued by him. He stated that on the spot he did not find any encroachment over the suit land. 19. Defendant Nirmla Devi examined herself as DW-2 and filed her affidavit Ext. DW-2/A in her examination-in-chief. He stated that on the spot he did not find any encroachment over the suit land. 19. Defendant Nirmla Devi examined herself as DW-2 and filed her affidavit Ext. DW-2/A in her examination-in-chief. She submitted in her deposition that she purchased the land from one Shri Amar Singh, resident of village and Post Office and Tehsil Dharamur, District Mandi in the year 2004 and she has constructed her ground floor in the said land in the year 2004 to the extent of her share and the plaintiff purchased the land in the year 2006. After the purchase of the land, the plaintiff started raising construction of ground floor and also of the first storey, which was completed in the year 2009. The slabs of the house of DW-2 as well as of the plaintiff are connected with each other from the ground floor to the first storey and the plaintiff has not left any space to the side of the house of DW-2. The plaintiff has also not reduced the size of the existing pillars from 12x12 inches into 9x12 inches as alleged. It was stated by DW-2 that the Court had appointed Local Commissioner on the request of the parties to settle the matter forever. Shri L.C. Thakur, visited the spot on 17.10.2015 and in the presence of both the parties, their respective counsel, and in the presence of Vice President of Gram Panchyat, Dharampur, Shri Amar Singh and Prem Singh Thakur Ex-Pardhan, Gram Panchayat, directed the plaintiff to raise his pillars over his house only and the defendant was also directed to lay and raise wall over her own house only. Consequently, the plaintiff raised his pillars over his own house and DW-2 has also laid the wall over her own house. Neither DW2 nor the plaintiff has made any encroachment over the houses of each other. 20. The defendant examined Amar Singh DW-3, who in his examination-in-chief tendered an affidavit as Ext.DW-3/A. In his deposition, he has submitted that that he sold the land to the defendant in the year 2004 and thereafter the defendant constructed her house in the suit land to the extent of her share and completed the ground floor of her house in the year 2004 and first floor in the year 2009. This witness further deposed that he sold the land to the plaintiff in the year 2006, who after that completed the construction of first storey, in the year 2009.The slabs of the houses of the defendant as well as of the plaintiff are connected with each other from the ground floor to the upper storey. He has further stated that the plaintiff has constructed his house in such a way that no land is left to the side of the house of the defendant and also he has not reduced the size of the existing pillars from 12x12 inches to 9x12 inches. 21. DW-4 Prem Singh Thakur has also entered the witness box in order to corroborate the case of the defendant. He filed his affidavit as Ext.DW-4/A. In his deposition he stated that on 17.10.2012 he had gone to BDO Dharampur for personal work and when he was coming to home he came to know that Advocates L.C. Thakur and Surender Thakur have come for the spot inspection in the above mentioned case and then he also visited the spot. The Local Commissioner directed the plaintiff to raise his pillars over his house only and the defendant was also directed to lay and raise the wall over her own house only. Both the houses are adjoining to each other and their slabs touch each other and there is no space left between the two houses. The construction from the ground floor to the top floor is on their own houses and neither of the party has made any encroachment. 22. In order to corroborate his case, the plaintiff has placed on record site plan Ext. PW-2/A, which was prepared by PW-2 Krishan Dev Guleria. In his cross-examination, he fairly admitted that the plaintiff is of his Panchayat and the father of the plaintiff was member of the Panchayat and he also contested the election of the Panchayat Pradhan. He had admitted that he has not called Nirmla Devi (defendant) on the spot. He feigned ignorance about the total area of the land, over which the plaintiff had raised the construction. 23. The deposition of PW-2, who prepared Ext. PW-2/A, has rightly been disbelieved by the learned Courts below. He had admitted that he has not called Nirmla Devi (defendant) on the spot. He feigned ignorance about the total area of the land, over which the plaintiff had raised the construction. 23. The deposition of PW-2, who prepared Ext. PW-2/A, has rightly been disbelieved by the learned Courts below. From the perusal of site plan and in conjunction with the statement PW2, it is clear that this witness could have stated about the overlapping, had he actually measured the house and the slabs of the defendant. It has come on record that neither this witness measured the slabs of the defendant nor he has shown the slabs and house of the defendant in the site plan Ext. PW-2/A. In common parlance, in the absence of measuring the slabs of the defendant, it cannot be taken into consideration that there is an overlapping. 24. On the orders of the Courts below, Shri L.C. Thakur, Advocate, was appointed as Local Commissioner. He submitted his report as DW-1/A. In his report, he has stated that in pursuance to the Court order, he visited the spot i.e. land comprised in Khewat No130/165, bearing Khasra No.518, land measuring 00.22.60 Hectares, situated in Muhal Dharmapur and in the presence of the parties and their respective counsel, he directed the plaintiff to raise his pillars over his own house and the defendant was also directed to lay and raise wall over her own house. The houses of both the parties are adjoining to each other and their slabs touched with one another. He categorically stated that second time also, he visited the spot and found that the plaintiff had raised his pillars over his own house and the defendant had also laid a wall over her own house. Further his report reveals that neither of the parties has made any encroachment over the houses of one another. The report of the Local Commissioner clinches the entire controversy and the allegations levelled in the present case by the plaintiff stand demolished by the report of the Local Commissioner. 25. As far as the allegation of the plaintiff that his 4 inches high brick wall was dismantled by the defendant has not been substantiated by the plaintiff by leading any concrete evidence. 25. As far as the allegation of the plaintiff that his 4 inches high brick wall was dismantled by the defendant has not been substantiated by the plaintiff by leading any concrete evidence. There is no evidence qua this aspect rather, the report of the Local Commissioner is contrary and it specifically states that none of the parties has made any encroachment over the houses of each other. The present case seems to be a fight between the neighbours and without any material on record the plaintiff has instituted the suit. 26. Learned Courts below have concurrently disbelieved the claim of the plaintiff and have come to the conclusion that all the allegations made in the plaint are incorrect. In the opinion of this Court, the said findings are pure findings of fact. Learned counsel for the appellant has failed to point out any perversity in impugned judgments and decrees. The learned Courts below have appreciated the oral as well as documentary evidence placed on record and after relying upon the documents, especially, the report of the Local Commissioner Ext.DW-1/A have rightly come to the conclusion that the plaintiff has failed to make out a case in his favour. All the allegations as levelled in the present case are of factual in nature which has been dealt by the learned Courts below. This Court while deciding regular second appeal will not interfere in the question of fact, until and unless question of law arises in the present proceedings. There are concurrent findings of facts recorded by the learned Courts below, which cannot be interfered in the present proceedings, that too, in the absence of any perversity shown to be in the judgments and decrees. No other point was urged by learned counsel for the parties. 27. Having said so, no question of law much less substantial question of law arises in the present appeal, and consequently the appeal being devoid of any merit is dismissed along with pending application(s), if any.