2026:HHC:35432 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 200 of 2008 Reserved on: 18.8.2026 Date of Decision: 21.8.2026 Laxmi Singh ...Appellant Versus Balak Ram and others ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Mohinder Verma, Advocate. For the Respondents : Mr Vinay Thakur, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 26.12.2007, passed by learned Additional District Judge, Fast Track Court, Shimla (learned Appellate Court), vide which the judgment and decree passed by learned Civil Judge (Junior Division), Theog, District Shimla, HP (learned Trial Court) were upheld. (The parties shall hereinafter be referred 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:35432 to in the 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 plaintiff filed a civil suit before the learned Trial Court for seeking an injunction to restrain the defendants and their family members from uprooting and disturbing the water pipes from Khasra No.4, situated in Chak Kuftu, Pargana Kalanj and restraining the defendants from using the water of kuhal in Khasra Nos. 37 and 64 situated in Chak Kuftu, Pargana Kalanj exclusively. It was asserted that the plaintiff is a resident of Village Kuftu. There is a water source/nallah in Khasra No.4 known as Chair nallah. A water kuhal starts from Khasra No.4, passes through Khasra No. 37, and leads to a water pond situated in Khasra No. 64. The water source, kuhal and pond are located on government land. The kuhal and water source are being used by the plaintiff, Tulsi Ram and Jia Ram, for irrigation and drinking. The plaintiff has an easementary right to take water from the water source by way of prescription. The plaintiff's rights to take water are recorded in Wajib-ul-Arj. The plaintiff has taken the water pipe from Chair Nallah from Khasra No. 4, and he has been using the water for irrigation of crops for more 3 2026:HHC:35432 than 25 years. The plaintiff is also using the water of the kuhal passing through Khasra No. 37 and leading to Khasra No. 64. The defendant No.1 laid a water pipe from the kuhal with the understanding that the plaintiff's right to use water would not be affected. The defendants threatened to uproot the plaintiff’s water pipes from Khasra No.4 and use the water of the kuhal and pond exclusively. Hence, a suit was filed for seeking the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action. The contents of the plaint were admitted to the extent that the plaintiff is an agriculturalist and there exists a water source in Khasra No. 4, which is known as Chair Nallah. It was asserted that the defendant has taken water through an Alkathine pipe which passes through Khasra Nos. 31, 32, 37 and reaches Khasra No. 64 where the pond is located. The defendant has been using the water for more than 35 years openly, without interruption and continuously. The plaintiff has no right to use the water from Chair nallah, and he has been using the water from Khasra No. 3 of Chak Satriyur for 37 years for irrigation. The plaintiff wanted to insert a new water pipe in the water 4 2026:HHC:35432 source, but the defendant did not allow him to do so. It was specifically denied that the defendants had uprooted the plaintiff’s water pipe. Hence, it was prayed that the suit be dismissed. 4. No replication was filed. 5. Learned Trial Court framed the following issues on 21.12.2001: - (i) Whether there exists a water channel which originates from Khasra No.4 and after passing through Khasra No.37, leads towards water pond situated in Khasra No.64, as alleged? OPP. (ii) If Issue No.1 is held in the affirmative, whether the plaintiff has acquired a right of easement in respect of use of the water of the aforesaid water channel, as alleged? OPP. (iii) If Issue No.2 is held in the affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. (iv) Whether the plaintiff has got no cause of action to file the present suit? OPD. (v) Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1) and Karam Singh (PW2). The defendant No. 1 examined himself (DW1), Bhoop Ram (DW2) and Narayan Singh (DW3). 5 2026:HHC:35432 7. Learned Trial Court held that Khasra No.37 has been described in Jamabandi (Ex. P3) as remains of kuhal. Therefore, no active water channel exists over Khasra No. 37. The Patwari visited the spot and issued the report (Ex.D2) stating that the plaintiff had not connected any water pipe to the source located in Khasra No.4. The defendant Balak Ram and Tulsi Ram had connected their water pipe to this water source. This report falsified the plaintiff's version. Hence, learned Trial Court answered Issue Nos. 1 to 3 in the negative, Issue No. 4 in the affirmative and dismissed the suit. 8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal which was decided by the learned Additional District Judge, Fast Track Court, Shimla (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the report of Patwari (Ex.D2) falsified the plaintiff's version. The record of settlement for the year 1929-30 had not been exhibited. No villager has supported the plaintiff's version. Khasra No. 37 was recorded to be a ruined kuhal in the revenue record. The learned Trial Court had rightly dismissed the suit, and no interference was required with the judgment and decree 6 2026:HHC:35432 passed by the learned Trial Court. Hence the appeal was dismissed. 9. Being aggrieved by the judgment and decree passed by the learned Courts below, the plaintiff filed the present appeal which was admitted on the following substantial questions of law on 18.12.2008: - (i) Whether copy of Wazib Ul Urz (Exhibit P2) as produced by Appellant during course of trial of the suit has wrongly been ignored from consideration by Ld. Lower Appellate Court by observing that same was not exhibited, and thus jurisdiction has not been exercised properly? (ii) Whether Ld. Additional District Judge below has drawn adverse inference against appellant under Section 114(g) of the Indian Evidence Act unlawfully, and such an inference could not be drawn though a copy of settlement record for 1929- 30 has been brought on record as Exhibit P-2? (iii) Whether both Courts below have acted illegally by failure to appreciate and consider Exhibit P-1 to P- 4 and Exhibit D-1 to D-3; therefore, jurisdiction has not been exercised properly; therefore, findings are to be set aside? 10. I have heard Mr Mohinder Verma, learned counsel for the appellant/plaintiff and Mr Vinay Thakur, learned counsel for the respondent/defendants. 11. Mr Mohinder Verma, learned counsel for the appellant/plaintiff, submitted that the learned Appellate Court 7 2026:HHC:35432 had ignored Wajib-ul-Arj and held that Wajib-ul-Arj was not proved, whereas it was proved as Ex.P2. This vitiated the judgment of the learned Appellate Court. The learned Courts below have failed to properly appreciate the material on record. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside. 12. Mr Vinay Thakur, learned counsel for the respondents/defendants, submitted that the learned Courts below had rightly held that the plaintiff's claim was falsified by the report of the Patwari and the revenue record. The plaintiff had not based his claim on the customary rights, and the Wajib- ul-Arj would not have assisted his claim. The judgment of learned Trial Court is not vitiated by the non-consideration of the Wajib-ul-Arj. Therefore, 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. 8 2026:HHC:35432 Substantial Questions of law No.1 and 2: 14. Learned Appellate Court held in para 21 that the record of settlement relating to the years 1929-30 has not been exhibited and an adverse inference has to be drawn against the plaintiff. This was contrary to para 15 wherein it was noticed that a copy of Wajib-ul-Arj (Ex.P2) was proved by Karam Singh, Patwari (PW2). Therefore, the learned Appellate Court had erred in holding that the plaintiff had not proved the copy of Wajib- ul-Arj and that an adverse inference has to be drawn against him. 15. The Wajib-ul-Arj records the custom of the area. The plaintiff has come to the Court with a plea that he has a right of easement by way of prescription. He never claimed any right by way of custom. Therefore, the Wajib-ul-Arj was proof of a fact which was never pleaded by the plaintiff. It was laid down by the Judicial Committee of the Privy Council about 100 years ago in Siddik Mahomed Shah v. Saran, 1929 SCC OnLine PC 79: AIR 1930 PC 57 (1): (1930) 58 Mad LJ 7: PLR (1930) 31 PC 150 (1) that no amount of evidence can be looked into on a plea never put forward by the party. It was observed: 9 2026:HHC:35432 “This is a hopeless appeal. A certain Hote Khan is alleged by the appellant, who is in possession of certain lands which belonged to Hote Khan, to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Courts. After Hote Khan's death, there was a transference of the lands in question by mutation of names effected upon the application of Hote Khan's widow. The Judicial Commissioners think it very probable that Hote Khan's widow, being an ignorant person and with no one to help her, transferred the lands in that way in order that her spiritual adviser might hold them as trustees. The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward. The result is that their Lordships will humbly advise His Majesty that the appeal should be dismissed. As the respondents have not appeared, there will be no order as to costs.” (Emphasis supplied) 16. This judgment has been consistently followed by the various Courts. It was held by the Hon’ble Supreme Court in Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah, (1987) 1 SCC 254 that any amount of proof offered without appropriate pleadings is generally of no relevance. It was observed: - 6. There can be no doubt that under the law of pleadings facts mentioned in sub-clause (iii) are to be pleaded in the petition and thereafter proved at the trial for the 10 2026:HHC:35432 purpose of an order of eviction against the tenant. In a decision of this Court in Hasmat Rai v. Raghunath Prasad [(1981) 3 SCC 103, 109: AIR 1981 SC 1711 : (1981) 3 SCR 605] it has been observed by Desai, J. that in order to obtain an order of eviction of a tenant under Section 12(1)(f) of Madhya Pradesh Accommodation Control Act, 1961, the landlord has to plead and establish (i) that he bona fide requires the accommodation let to the tenant for non- residential purposes for the purpose of continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or the town concerned. Further, it has been observed that any amount of proof offered without appropriate pleading is generally of no relevance. We respectfully agree with the above statement of law and reiterate the same. We are, however, not inclined to interfere with the impugned order of eviction in the instant case for the reasons stated hereinafter.” (Emphasis supplied) 17. Similarly, it was held in Kishor Kirtilal Mehta v. Lilavati Kirtilal Mehta Medical Trust, (2007) 10 SCC 21 that evidence led beyond the pleading has to be discarded and no amount of the evidence led regarding the fact which was never pleaded can be looked into by the Court. It was observed: - 13. By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discusses the evidence. There cannot also be any doubt that no amount of evidence can be looked into on a plea never put forward. (See Siddik Mohd. Shah v. Saran [AIR 1930 PC 57 (1)].) Therefore, at this stage, if the operation of those two orders is not stayed, it would mean that the examination of the witnesses will cover only that portion of the plea admitted to be put forward by Defendants 11 to 13 or in the 11 2026:HHC:35432 plaint, and that would cause inconvenience to the trial which has been directed to be expedited by this Court. Merely because some more or not strictly necessary questions are also asked either in cross-examination or in chief examination, that cannot also prejudice the contesting defendants since they can always plead either that a part of the evidence has to be discarded as not being covered by the pleadings in the case, or that it is irrelevant.” 18. It was laid down by this Court in Deepak Parkash v. Sunil Kumar, 2014 (1) Him. L.R. 654, that no amount of evidence beyond pleadings can be looked into. It was observed: 17. It is a settled law that no amount of evidence beyond pleadings can be looked into. It is further the well-settled principle of law that the evidence adduced beyond the pleadings would not be admissible, nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial, as also the Appellate Court, having regard to the rule of pleading would be entitled to reject the evidence wherefore there does not exist any pleading." 19. This position was reiterated in Sonam Chomdan v. Ranjit Singh, 2017 SCC OnLine HP 2617, wherein it was held: - 31. Mr Verma, while placing reliance upon Deepak Prakash v. Sunil Kumar, (2014) 2 Shim LC 822 and C. Mackertich v. Stuart & Co. Ltd., (1971) 3 SCC 39: AIR 1970 SC 839, contended that no amount of evidence beyond pleadings can be looked into. There cannot be any quarrel with regard to the aforesaid proposition of law as laid down in the case referred to above. It is well settled that evidence adduced beyond the Pleadings would not be admissible, nor can any evidence be permitted to be adduced which is at variance with the Pleadings. However, the contention 12 2026:HHC:35432 having been made by Mr Verma cannot be accepted since no Plea with regard to nonregistration of agreement, on the basis of which Plaintiff came into possession over the land, was raised in written statement having been filed by appellant-defendant, they cannot be allowed to raise this Plea in the instant appeal because of the fact that submission with regard to non-registration of agreement relied upon by the Plaintiff to claim ownership and possession of the suit land is purely legal submission and can be raised/made at any stage of the case.” (Emphasis supplied) 20. Therefore, the non-consideration of the report of the Wajib-ul-Arj has not vitiated the judgment of the learned Appellate Court, and these substantial questions of law are answered accordingly. Substantial Question of Law No.3: 21. Plaintiff Surat Ram admitted in his cross- examination that he had made a complaint to the Chief Minister and the Patwari had visited the spot to verify the spot position. He admitted that the Patwari had inspected the spot in his presence. Patwari Karam Singh (PW2) stated that he had prepared the spot map (Ex.P1), tatima (Ex.D1 and Ex.D3) and the report (Ex.D2). This report mentions that Khasra No. 37 is owned by the State of H.P. Balak Ram and Tulsi Ram, the present defendants 1 and 2, have put an alkathine pipe in Khasra No. 37, 13 2026:HHC:35432 which has been in existence for 35 years. Plaintiff Surat Ram is not drawing water from this Khasra No. However, he was drawing water from Khasra No.4 located in Mauja Satriyur, and he is collecting the water in a tank. 22. The plaintiff had filed a civil suit regarding Khasra Nos. 4 and 37 located in Mauja Kuftu, whereas the report of the Patwari shows that he is drawing water from Khasra No. 4 located in Mauja Satriyur. Thus, the learned Courts below had rightly held that the report of the Patwari falsifies the plaintiff’s version that he was drawing water from Khasra No. 4 located in Mauja Kuftu or that he was using the water of the kuhal located in Khasra No. 37. 23. The plaintiff stated in his cross-examination that he was not aware of the khasra number in which the pipe was put by him. He did not know the khasra number through which the pipe passes. He admitted that he draws the water from Satriyur. Thus, the admission made by the plaintiff that he is drawing water from Mauja Satriyur corroborates the report of the Patwari (Ex.D2) that the plaintiff was drawing water from Mauza Satriyur. Therefore, the plaintiff’s version that he had a 14 2026:HHC:35432 right to use the water flowing in Khasra Nos. 4 and 37 located in Mauja Kuftu was not proved and learned Courts below had rightly held that the plaintiff was not entitled to the injunction as prayed for. 24. It was submitted that Wajib-ul-Arj (Ex.P2) shows that the people have a right to take water from the water sources and the defendants cannot interfere with the exercise of this right by the plaintiff. This submission will not help the plaintiff because, as already stated, the plaintiff has not based his claim upon the custom but upon the prescription. Further, the plaintiff has been taking water from Khasra no. 4 located in Mauja Kuftu and this right is not being interfered with. Therefore, the right recorded in the Wajib-ul-Arj will not help the plaintiff’s case. 25. Thus, there is no infirmity in the appreciation of the material on record by the learned Courts below and this substantial question of law is answered accordingly. Final Order: 26. In view of the above, the present appeal fails, and it is dismissed. 15 2026:HHC:35432 27. Pending application(s), if any, also stand(s) disposed of. 28. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 21st August, 2026 (Chander)