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2026 DAILYLAW 16928 (HP)

Hari Singh v. Rup Singh

2026-03-18

Romesh Verma

body2026
JUDGMENT : ROMESH VERMA, J. 1. The present appeal arises out of the judgment and decree, dated 05.10.2018, as passed by the learned Additional District Judge-II Mandi in Appeal No. 34/18, whereby the appeal preferred by the respondent/plaintiff was allowed and the judgment and decree, dated 29.06.2018 as passed by the learned Civil Judge, (Jr. Div.) Court No.3, Mandi, was set aside and ultimately, the suit as filed by the respondent/plaintiff was decreed by passing a decree of injunction restraining the defendants/appellants from making any type of interference over the land comprised in Khasra No.2 and 230 in any manner and to cut and remove the trees from the edge of the beed of the land of the plaintiff. 2. The brief facts of the case are that the present respondent/plaintiff, Rup Singh, preferred a suit for permanent prohibitory injunction in the court of learned Civil Judge (Jr. Div.), Court No.3, Mandi, on 14.11.2013. It was averred in the plaint that the plaintiff is owner in possession along with his brother, sisters and mother with respect to the land comprised in Khata Khatauni No. 168/198, Khasra No.2, 230, Kita-2 measuring 2-15-16 bighas, situated in Mohal Chatrour/293, Tehsil Sardar, District Mandi, H.P. It was averred in the plaint that adjoining to the land comprised in Khasra No.230, the adjoining land is owned and possessed by the defendants, which is comprised in Khasra No. 229. Land of the plaintiff is at a higher level and that of the defendants is on the lower side and there is a gap of about 3 feet height between lands of both the land owners. It was averred that on the land of the plaintiff there are various kind of treeson beed, such as Tunhiand Poplar etc. on the spot. The defendants made an application to the revenue authorities for demarcation of their land and in the said demarcation, boundary of of the defendants was shown above the beed i.e. in the field of the plaintiff, which demarcation was not accepted by the plaintiff as the same was not done in accordance with law by the revenue officials and was result of connivance of the defendants with the revenue staff. It was further averred that the defendants under the garb of the demarcation were threatening to cut and remove the trees standing on the land of the plaintiff and intended to dig puccabeed on the boundary which is existing on the spot since century, which act on the part of the defendants is highly illegal and unlawful. Therefore, it was prayed that the defendants be restrained to cut and remove the trees from the suit land bearing Khasra No. 230 as well as to dig the suit land and further to cause any interference by passing a decree of permanent prohibitory injunction in favour of the plaintiff and against the defendants. 3. The suit of the plaintiff/respondent was contested by the defendants/appellants by raising various preliminary objections including maintainability and locus standi. On merits, it was stated that the plaintiff/respondent recently built his house not only on the land owned and possessed by him but also the part of the construction was raised on the land owned and possessed by the defendants. It was averred that on account of the encroachment and illegal activities of the plaintiff, it caused lot of trouble to them. The plaintiff raised the construction without proper sanction from the competent authority, for which construction/building, the land had to be dug out to make the same level and while doing so, the plaintiff threw earth downwards that is towards land of the defendants and by these acts of the plaintiff, trees which are on the land of the defendants look as if the said trees are on the beed created by the plaintiff by digging his own land and throwing the earth on the land of the defendants. While constructing his own house, the plaintiff/respondent has encroached over the land of the defendants, therefore, in order to avoid any dispute, the defendants applied to the revenue authorities for demarcation of the land in question, which was given by the revenue officials and the same stood confirmed by the Assistant Collector, 1st Grade. 4. It was further averred that the demarcation is in the knowledge of the plaintiff and till date no appeal has been preferred by the plaintiff against the said demarcation. 4. It was further averred that the demarcation is in the knowledge of the plaintiff and till date no appeal has been preferred by the plaintiff against the said demarcation. Therefore, it was prayed that it is not the defendants rather it is the plaintiff, who is liable to be restrained not to throw the earth, water of the kitchen and make proper arrangement for channelizing the rain water, kitchen water so that same do not cause any kind of loss to the property of the defendants. The defendants filed common written statement refuting all the allegations levelled in the plaint and sought dismissal of the suit. 5. The plaintiff filed replication to the written statement filed by the defendants and the averments as made in the plaint were reiterated. 6. The learned trial court on 13.03.2014 framed the following issues:- 1. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed for? OPP. 2. Whether the suit is not maintainable in the present form, as alleged? OPD. 3. Whether the plaintiff has no enforceable cause of action to file the present suit, as alleged for? OPD. 4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee as well as jurisdiction? OPD 5. Relief. 7. After recording the evidence and evaluating the same, the learned trial court dismissed the suit as filed by the plaintiff vide judgment and decree dated 29.06.2018, however the appeal preferred against the said judgment and decree preferred by the plaintiff came to be allowed by the learned first appellate court vide judgment and decree dated 05.10.2018 whereby the suit filed by the plaintiff was decreed and the defendants were restrained from making any type of the interference over the land comprised in Khasra Nos. 2 and 230 in any manner and to cut and remove the trees from the edge of the beed of the land of the plaintiff. . 8. Feeling dissatisfied with the judgment and decree, as passed by the learned first appellant court, the appellants/defendants have preferred the instant regular second appeal, which was admitted on 10.05.2019 by this Court on the following substantial questions of law:- 1. Whether the Ld. Lower Appellate Court was correct in shifting the burden of proof qua the ownership and possession of the suit land upon the appellant/defendant? 2. Whether the Ld. Whether the Ld. Lower Appellate Court was correct in shifting the burden of proof qua the ownership and possession of the suit land upon the appellant/defendant? 2. Whether the Ld. Lower Appellate Court has illegally ignored the demarcation conducted by the revenue authorities which had attained finality and was accepted by the respondent/plaintiff as correct? 9. I have heard Mr. Hamender Singh Chandel, Advocate, appearing for the appellants and Mr. Devinder K. Sharma, Advocate, appearing for the respondent and have also gone through the material available on record. 10. The main point in issue for determination in the present case is with respect to the Beed which is being claimed by both the respective parties to be on their own lands. In the plaint, the plaintiff has claimed that he is the owner in possession of Khasra No. 230 and on the said land of the plaintiff, there is a beed where various trees of Tunhi and Poplar etc. are existing. On the contrary, the said averments have been specifically refuted by the defendants and it is the case of the defendants that while raising the construction and carrying out excavation of the land, the plaintiff threw the earth downwards towards the land of the defendants and by these acts of the plaintiff, trees which are on the land of the defendant look as if the trees are on the beed created by the plaintiff by digging his own land and throwing the earth on the land of the defendants. 11. The plaintiff in order to substantiate hiscase appeared in the witness bow as PW1 and tendered in evidence his affidavit Ext. PA wherein, the averments as made in the plaint were reiterated and it has been stated that the defendants applied for the demarcation of the land and in the same, the revenue staff had shown boundary of the defendants above the beed in the field of the plaintiff and the said demarcation was not accepted by him. Further, he has stated that when the demarcating officer came on the spot, he did not mention anything in his demarcation report as such the oral pronouncement of the demarcating officer was a devise to give benefit to the defendants. Further, he has stated that when the demarcating officer came on the spot, he did not mention anything in his demarcation report as such the oral pronouncement of the demarcating officer was a devise to give benefit to the defendants. It has been stated that the defendants under the garb of the demarcation report obtained by them are threatening to cut and remove the trees standing on the beed of the land of the plaintiff. Further, the defendants intended to dig the pucca beed on the boundary which is existing on the spot since century. 12. In his cross-examination, he denied the factum of demarcation and further he has denied that in the same, the land of the defendants had come towards the land of the plaintiff that is on the upper side of the beed. He also denied that in the demarcation any encroachment was found and that he had raised construction of his house towards the house of the defendants. 13. This is the only oral testimony of the plaintiff with respect to the fact that the defendants were trying to cut valuable trees on the beed over the suit land bearing Khasra No. 230, however except the bald statement, no cogent and convincing evidence has been placed on record by the plaintiff in order to substantiate his contention. Neither the land in question has been defined nor identified by any revenue report. No document has been placed on record, which may depict that beed as well as trees are over the suit land bearing Khasra No. 230. 14. Surprisingly, only oral testimony of the plaintiff has been believed by the learned first appellate court, which, on the face of it, is contrary to the record, therefore, the learned first appellate court has reversed findings of the learned trial court in a routine manner. 15. 14. Surprisingly, only oral testimony of the plaintiff has been believed by the learned first appellate court, which, on the face of it, is contrary to the record, therefore, the learned first appellate court has reversed findings of the learned trial court in a routine manner. 15. The perusal of the judgment as passed by the learned first appellate court shows that it has relied on Wajib- ul-Arz (wrongly mentioned as Waziv Ul Arg) by referring to the same and holding that as per the Wajib-ul-Arz , beed is to be considered open to all and that the person can access to the field through the beed and that further it has been mentioned in Wajib-ul-Arz that if the fields are on the down and upwards, the person, situated on the higher level has right to the downward where his hand is reached and the remaining part belongs to other person, who is situated on the lower level. 16. In para 15 of the judgment as rendered by the learned first appellate court, it has relied upon the Wajib-ul- Arz , which is not part of the record. None of the parties have placed on record copy of Wajib-ul-Arz. The pleadings which can be gathered from the record do not mention or speak about the same. The learned first appellate court of its own has carved out a new case in favour of the plaintiff by referring to Wajib-ul-Arz. 17. The findings as returned by the learned first appellate court are dehors the pleadings and record and the same are not sustainable in the eyes of law. The first appellate court has assigned the reasons which are beyond the scope of the pleadings and the documents as furnished by the respective parties. 18. In order to rebut the claim of the plaintiff, the defendant Hari Singh entered the witness box as DW1 and he deposed that when the plaintiff was raising construction of his house, he raised the construction of kitchen and small temple. However, in the demarcation, the construction of the plaintiff was found to be existing on the land of the defendants. By raising the construction, the earth was thrown on the land of the defendants and it gave an impression as if the trees which are over the land owned and possessed by the defendants bearing Khasra No. 229 are standing on the suit land. By raising the construction, the earth was thrown on the land of the defendants and it gave an impression as if the trees which are over the land owned and possessed by the defendants bearing Khasra No. 229 are standing on the suit land. He stated that they had got conducted the demarcation from the retired Tehsildar Sh. Shyam Singh. Copy of the application of the demarcation has been exhibited as Ext. DW1/A, whereas copy of his statement is Ext. DW1/B. He further stated that in the said demarcation, some portion of the kitchen and temple of the plaintiff was found on the land bearing Khasra No. 229 owned and possessed by the defendants. The demarcation report was not assailed by the plaintiff by filing any appeal in the competent court of law. He also stated they don’t interfere in the suit land and at the time of demarcation, the plaintiff quarreled with the defendants. 19. The defendants examined DW2 Pitamber Lal, Record Keeper, General Record Room, DC Office, Mandi, DW3 Patwari, Patwar Circle Gagal, Teshil Balh, District Mandi and DW4 Sham Singh, Retired Naib Tehsildar, who carried out the demarcation and proved copy of the demarcation report, Ext. DW4/B. 20. The plaintiff has filed simpliciter suit for injunction and he is alleging the interference over the suit land on the part of the defendants. 21. It is general principle of law that a person who alleges he has to prove. In the present case the learned first appellate court has placed reverse onus on the defendants. At the first instance it is for the plaintiff to prove his case beyond reasonable doubt. It was for the plaintiff to show that the trees are standing over the beed and said trees are part and parcel of Khasra No. 230 owned and possessed by him. However, the learned first appellate court has reversed the onus and has put the burden of proof on the defendants. 22. Admittedly, the defendants have tried to prove their case by demarcating the land bearing Khasra No. 229 and the demarcation report has been placed on record Ext. However, the learned first appellate court has reversed the onus and has put the burden of proof on the defendants. 22. Admittedly, the defendants have tried to prove their case by demarcating the land bearing Khasra No. 229 and the demarcation report has been placed on record Ext. DW4/B. However, the learned trial court has disbelieved the demarcation report and has come to the conclusion that the said demarcation report is not in consonance with the instructions as laid down by the Financial Commissioner, (Revenue).Admittedly, the defendants did not assail those findings before the learned first appellate court, therefore, once the learned trial court has come to the conclusion that the demarcation report is not in consonance with the provisions of law and the said findings have not been assailed by way of cross-objections before the learned first appellate court, therefore, the said findings have attained finality. 23. The learned counsel for the defendants/appellants have taken this Court to the copy of the jamabandi, Ext. PC for the year 2009-2010 of Mohal Chatror, which depicts Khasra No. 229 measuring as 02-01-16 01-16-12, barani abbal, 00- 05-00 gairmumkin makan, 00-00-04 gairmumkin beed. It is contended by the learned counsel for the appellants that record reveals that the beed is over Khasra No. 229. He submits that presumption of truth is attached to the revenue record. 24. It is well settled principles of the law that presumption of truth is attached to the revenue record until and unless the same is rebutted by leading any cogent evidence by the opposite party. 25. In the present case, the defendants have been able to establish that gairmumkin beed is over Khasra No. 229 rather not on the suit land. Merely on the bald statement of the plaintiff, this Court will not believe the version as putforth by the plaintiff that too in the absence of demarcation/identification of the suit land. The defence of the defendants seems to be plausible that while raising the construction by the plaintiff earth was thrown on the land of the defendants and it gave the impression as if the trees are standing over the suit land and not over the land owned and possession by the defendants bearing Kasra No. 229. 26. The defence of the defendants seems to be plausible that while raising the construction by the plaintiff earth was thrown on the land of the defendants and it gave the impression as if the trees are standing over the suit land and not over the land owned and possession by the defendants bearing Kasra No. 229. 26. The plaintiff has approached the Court without any substance and it is he, who filed the suit in counter blast to the demarcation which was carried out at the behest of the defendants. In case the plaintiff was aggrieved by the demarcation as carried out by the revenue officer at the instance of the defendant, remedy available to him was to assail the said demarcation report before the competent court of law. Instead of filing any appeal, he has preferred to file the instant suit for injunction in order to overcome the said demarcation. 27. The relief of injunction is discretionary and equitable relief. The person, who approaches the Court for grant of discretionary relief, should approach the Court with clean hands. But, in the present case, the plaintiff has not approached the Court with clean hands. Realizing the trouble on the basis of the demarcation, the simpliciter suit for injunction was filed by the plaintiff and he obtained the interim injunction against the defendants. 28. The learned trial court has rightly come to the conclusion that the plaintiff in order to prove his claim that the beed is part of the suit land and the said suit land has been dug out for the purpose of raising pucca beed, the best evidence which was required, is the demarcation of the suit land and that of the adjoining land of the defendants. However in absence of doing so, merely on the basis of oral evidence, the plaintiff was not able to establish his case. 29. The revenue record, Ext. PC, depicts Khasra No. 229 as gairmumkin beed, whereby the case of the plaintiff is shattered. The presumption of truth is attached to the revenue record until and unless the same is rebutted. The plaintiff has failed to rebut the said presumption, therefore, on that account, the impugned judgment and decree as passed by the learned first appellate court is required to be set aside. The presumption of truth is attached to the revenue record until and unless the same is rebutted. The plaintiff has failed to rebut the said presumption, therefore, on that account, the impugned judgment and decree as passed by the learned first appellate court is required to be set aside. The mere deposition of the plaintiff is not sufficient to prove his case as he has failed to prove that the beed is the part of the suit land and that the defendants were threatening him and causing interference over the suit land and trying to cut the valuable trees situated over the suit land. 30. The learned first appellate court has wrongly made out a new case in favour of the plaintiff by holding that Wajib-ul-Arz states that the person, situated on the higher level has a right to the downward where his hand is reached and the remaining part belongs to other person, who is situated on the lower level. The aforesaid Wajib-ul-Arz has not seen the light of the day, therefore, in the absence of the same, reliance upon the same as placed by the learned first appellate court is not sustainable. 31. The parties are governed by the pleadings and the evidence, however the findings as returned by the learned first appellate court by reversing the valid judgment and decree as passed by the learned trial court is alien to the record. Therefore, the judgment and decree as passed by the learned first appellate deserves to be set aside and that of the learned trial court is required to be restored. Ordered accordingly. The substantial questions of law are answered accordingly. 32. No other point was raised by the learned counsel for the parties. 33. In view of aforesaid discussions and for the reasons sated hereinabove, I find merit in this appeal and the same is accordingly allowed and after setting aside the judgment and decree passed by the first appellate court, judgment and decree as passed by the trial court is restored, in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.