(2026:HHC:31248) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 239 of 2024 Date of decision: 20.07.2026 Tulsi Ram ...Appellant. Versus Dharam Prakash (since deceased) through LRS ...Respondents. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the appellant : Mr. Uday Singh Banyal, Advocate. For the respondents : Mr. Rajinder Singh Thakur, Advocate. Romesh Verma, Judge (Oral): The present appeal arises out of the judgment and decree dated 26th April, 2024 passed by learned Additional District Judge, Dehra, District Kangra, whereby, the appeal filed by the appellant/plaintiff was dismissed and the judgment and decree dated 28.02.2017, passed by Civil Judge (Senior Division), Dehra, District Kangra, H.P. was affirmed, whereby the suit filed by the plaintiff was ordered to be dismissed. 2. Facts as emerge in the present case are that the appellant-plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from encroaching and raising construction over the area more than 4/5 marlas as per the agreement dated 3rd June 1991 consisting of land comprised in Khata No. 314, Khatauni 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- (2026:HHC:31248) No. 508, Khasra No. 2581/159 measuring 264.10 sq meters situated in Mohal, Tehsil Jwalamukhi, District Kangra, H.P. 3. It is the case of the plaintiff, the land comprised in Khata No. 314, Khatauni No. 508, Khasra No. 2581/159 measuring 264.10 sq meters is owned and possessed by the plaintiff as per Jamabandi for the year 2008-09. It has been stated in the plaint that the controversy qua the possession of defendant in part of the suit land of structure as well as Palli was raised by the plaintiff in Civil Suit No. 1/2003 in the Court of learned Civil Judge, Dehra. That the defendant had pleaded an agreement dated 3rd June 1991 executed by plaintiff about 4/5 marlas of the land with the plea that it was gifted to him by the plaintiff. That the said agreement was held to be an irrevocable license by the Court on 19th February 2008 and the suit filed by plaintiff for possession of room and Palli was ordered to be dismissed. Though plaintiff filed an appeal against the said judgment, but the appeal was also dismissed. 4. As per the case of plaintiff, there is a room and Palli in part of the suit land towards South-East of Khasra No. 2581/159. The defendant in order to exceed his share intended to raise fresh construction covering more area beyond the Palli. As per the writing dated 3rd June 1991, the plaintiff had given 4/5 marlas of the land to the defendant. However, he is covering more area which was agreed inter se the parties. -3- (2026:HHC:31248) 5. It was stated that defendant cannot be permitted to raise and cover the land more than the land which was described in the writing dated 3rd June 1991. 6. Therefore, under such circumstances, the plaintiff filed suit for permanent prohibitory injunction restraining the defendant from encroaching and raising construction more than 4/5 marlas of the land as per agreement dated 3rd June 1991 in the land comprised in Khata No. 314, Khatauni No. 516, Khasra No. 2581/159 measuring 264.10 sq meters situated in Mohal and Tehsil Jawalamukhi, District Kangra, H.P. 7. The suit as filed by the appellant-plaintiff came to be resisted by the defendant-respondent by raising preliminary objection with respect to the maintainability, acquiescence, and that the suit is barred by the provisions of Order 2 Rule 2 of the CPC. 8. On merits, it was contended by the defendant that though room and Palli is situated over the suit land, however, there is also a Sehn of the defendant. That plaintiff had executed an agreement for 4- 5 marlas of land comprising of Khasra No. 159 min in the shape of gift deed where he agreed that he will execute a sale deed. Since the relations between the parties were cordial and defendant was intending to raise his house and further the cost of construction was going high day by day, the possession of the land was transferred to the defendant by plaintiff out of his own wish, will, and consent. When -4- (2026:HHC:31248) the writing was executed on 3rd June 1991, the plaintiff was not eligible to execute the sale deed on account of the legal bar. 9. After the preparation of the writing, the parties approached the Patwari on 22nd May 1991 and took the revenue documents for transferring the same to the defendant. After obtaining the demarcation, the possession of the suit land was handed over to the defendant on the spot for raising the construction of his house. 10. It is the case of the defendant that plaintiff himself authorized the defendant to raise construction of his house and thus has given an irrevocable license by way of execution of the writing dated 3rd June 1991 and that plaintiff had agreed to get the sale deed executed after the lapse of stipulated period of bar alienation, i.e., 20 years from the date of allotment. 11. That on the assurance of the plaintiff, the defendant raised construction over the suit land after spending huge amount in the presence and with the consent of the plaintiff. Defendant had spent about Rs. 80,000/- on the construction and a lot of money was also spent for levelling and raising the Danga. The entire construction was done in the presence of the plaintiff who authorized him and consented for the same. When the period of 20 years had elapsed, the defendant asked the plaintiff to execute the sale deed to which plaintiff had agreed and they took fresh demarcation on 13th July 1995 which was duly prepared and verified by the Patwari and Kanungo. -5- (2026:HHC:31248) 12. Though various requests were made to the plaintiff to execute the sale deed in favour of the defendant, however, he has failed to do so and he has failed to perform his part of the performance as stipulated in the agreement. Defendant was always ready and willing to perform his part of the stipulation as per writing dated 3rd June 1991. Therefore, defendant prayed for the dismissal of the suit as filed by the plaintiff. 13. The plaintiff filed a replication to the written statement whereby all the averments as made in the plaint were reiterated. The plaintiff stated that he is not cancelling the irrevocable license of 4/5 marlas of the land, but has requested the defendant to confine himself with the house and Palli and should not exceed his share. 14. In the replication, the execution of the writing dated 03.6.1991 and irrevocable license of 4/5 marlas was admitted by the plaintiff. 15. The learned trial Court framed the issues on 15th September 2010 and 22nd March 2011, in the following manner:- 1) Whether plaintiff is entitled for the relief of permanent prohibitory injunction, as alleged? ...OPP. 2 Whether suit is not maintainable? ...OPD. 3) Whether plaintiff is estopped by his act and conduct from filing the suit? ...OPD. 4) Whether suit is barred under Order 2, Rule 2 CPC, as alleged? ...OPD. -6- (2026:HHC:31248) 4-A) Whether the plaintiff is entitled for vacant possession of portion of the suit land by demolition of structure? ...OPP. 5) Relief. 16. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 28th February 2017, dismissed the suit as filed by the plaintiff. 17. Feeling dissatisfied, the plaintiff preferred an appeal in the Court of learned Additional District Judge, Dehra, District Kangra, H.P. on 11th May 2017. The learned First Appellate Court, vide its judgment and decree dated 26th April 2024, dismissed the appeal as filed by the plaintiff and affirmed the findings as returned by the learned trial Court. 18. Still feeling aggrieved, the plaintiff has approached this Court by filing the instant regular second appeal by invoking the provisions of Section 100 of the CPC. 19. It is contended by the learned counsel for the appellant that the impugned 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 point in controversy and have wrongly dismissed the suit filed by the plaintiff for permanent prohibitory injunction and possession. He further submits that after accepting the present appeal, the suit as instituted by the plaintiff deserves to be decreed. -7- (2026:HHC:31248) 20. On the other hand, the learned counsel for the respondents has defended the impugned judgments and decrees as passed by the learned Courts below. He submits that there are concurrent findings of fact as returned by the learned Courts below, therefore, this Court should not interfere in the same. 21. With the consent of the parties, the present appeal is finally heard on the following substantial question of law:- 1. Whether both the learned Courts below have erred, misconstrued, misinterpreted the cogent and reliable evidence on record to arrive at a conclusion contrary to public policy by dismissing the first appeal and the Civil Suit. ? 22. I have heard the learned counsel for the parties and gone through the material placed on record. 23. The plaintiff had approached the trial Court for the grant of decree of permanent prohibitory injunction and possession of the land on the ground that the parties entered into an agreement dated 3rd June 1991. That as per the written agreement, the plaintiff gave 4-5 marlas of land to the defendant, and the defendant is now covering more than the agreed area. This acts to cause irreparable loss to the plaintiff and deprives him of his valuable right. 24. It is case of the plaintiff that the controversy qua the possession of defendant over the suit land was raised by the plaintiff in -8- (2026:HHC:31248) Civil Suit No. 1/2003 in the Court of learned Civil Judge, Dehra. In the said suit, the defendant pleaded an agreement dated 3rd June 1991 executed by the plaintiff about 4/5 marlas of the land in suit on the premise that the said land was gifted to him by the plaintiff. The agreement dated 3.6.1991 was held by the court to be irrevocable license on 19.2.2008 and the suit as preferred by the present plaintiff for possession of one room and Palli was ordered to be dismissed. Though plaintiff had preferred an appeal before the First Appellate Court but the same was dismissed. 25. It is a case of the plaintiff that as per the writing dated 3rd June 1991, the plaintiff had given 4/5 marlas of the land to the defendant. However, the defendant is intending to cover more area than agreed between the parties. As per plaintiff the defendant cannot raise and cover more land than the area described in the writing dated 3rd June 1991. The said case has been refuted by the defendant on the ground that plaintiff had executed an agreement for 4-5 marlas of the land comprising of Khasra No. 159 min in the shape of gift deed where he agreed that he will execute the sale deed whenever he will get the right to do so. As per defendant since the relations between the parties were good and he intended to raise the construction of his house, therefore, after carrying the demarcation over the suit land and with the express consent of the plaintiff, he raised the construction over the -9- (2026:HHC:31248) suit land as agreed, strictly in accordance with the writing dated 03.06.1991. 26. The case as set up by the plaintiff that defendant is exceeding his construction over and above 4/5 marlas of the land was required to be pleaded and proved by him. Though it is admitted case between the parties that 4-5 marlas of land was given to the defendant by the plaintiff as per writing dated 03.06.1991. The said writing was found to be irrevocable license as per the judgment as passed by the learned Civil Judge, Dehra on 19th February 2008, and the said findings were affirmed by the First Appellate Court. 27. In order to substantiate his case that the defendant is raising the construction over and above the agreed area, the onus lies upon the plaintiff. In the present case, twice Local Commissioners were appointed to demarcate the suit land and in order to verify the contentions and the rival contentions as raised by the respective parties. Field Kanungo, Sukhdev Singh, was appointed as Local Commissioner during the pendency of suit. Though he had filed the report in Court, but interestingly, the plaintiff has failed to examine the said Field Kanungo in order to corroborate or substantiate his case. Similarly, another Local Commissioner, namely, Sh. Rajdeep, Advocate, was appointed commissioner and he visited the spot on 9th November 2010. He had tendered his report Ext. PW-3/C and there is -10- (2026:HHC:31248) no iota of evidence in the same that the defendant is raising construction over and above 5 marlas of land. 28. On the spot, Sh. Raj Deep, Advocate, Local Commissioner, had recorded the statement of the defendant, whereby defendant had categorically stated that he does not intend to raise construction beyond 5 marlas, and he shall raise the construction and confine himself within the said limit. 29. In order to seek the decree of possession, it was incumbent upon the plaintiff to have established and substantiated that the defendant has encroached more than 5 marlas of suit land. 30. In order to establish his case, though plaintiff has entered the witness box as PW-1, and he has also examined PW-2 Sh. Vicky, PW-3 Sh. Rajdeep, however, in order to obtain the decree of injunction and possession, it was incumbent upon the plaintiff to have established that the defendant has exceeded his area by raising the construction over the land, i.e., more than 5 marlas. 31. In the report of Local Commissioner, whereby he has prepared the Tatima, it did not establish the case of the plaintiff and further, there is a glaring defect in the said report, which cannot be relied upon by this Court in the absence of examination of the said local commissioner. Plaintiff has failed to examine the Local Commissioner and in the absence of his examination, it cannot be said that the defendant had exceeded the area comprising of 5 marlas of -11- (2026:HHC:31248) the land. Except of making bald statement, there is no material placed on record to establish that the defendant has exceeded his share. 32. The plaintiff has failed to establish, plead, and prove that the defendant was raising construction beyond 5 marlas, and being the plaintiff, it was incumbent upon him to have established by leading independent evidence and placing on record the documents to show that defendant is raising construction, if any, beyond 5 marlas. In the absence of the same, both the learned Courts below have concurrently held that the plaintiff has failed to prove that the construction was being raised by the defendant beyond his share, i.e., 4/5 marlas. 33. The Hon’ble Supreme Court while dealing with the scope of interference under Section 100 CPC 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 -12- (2026:HHC:31248) 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 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 laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts -13- (2026:HHC:31248) 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.” 34. 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 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.A2) -14- (2026:HHC:31248) 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 preparedness to fulfill his obligation and accept performance when the time for performance arrives.” 35. The findings as returned by the learned Courts below are purely findings of fact. 36. Both the Courts have concurrently appreciated the point in controversy after taking into consideration the oral as well as documentary evidence placed on record, and in the considered opinion of this Court, there is no perversity, illegality in the same. The plaintiff has failed to establish his claim, therefore, his suit has been rightly rejected by the learned trial Court, which findings stood affirmed by the First Appellate Court. -15- (2026:HHC:31248) 37. Consequently, in view of the concurrent findings, this Court does not find any illegality, perversity in the same. No other point urged by the learned counsel for the parties. The substantial question of law is answered accordingly. 38. In view of the above, the present appeal, being devoid of any merit, deserves to be dismissed and is accordingly dismissed. Pending application(s), if any, also stands disposed of. (Romesh Verma) Judge July 20, 2026. (Nisha)