2026:HHC:36274 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 236 of 2009 Reserved on: 20.8.2026 Date of Decision: 26.08.2026 Ujjal Sukh (since deceased) through LRs ...Appellants Versus Mansua ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr Bhupender Gupta, Senior Advocate, with Mr Harshit Sharma, Advocate. For the respondent : Mr Mohinder Verma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the Judgment and decree dated 23.04.2009, passed by the learned District Judge, Kinnaur at Rampur Bushehr (learned Appellate Court), vide which the judgment and decree dated 01.08.2008, passed 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:36274 by the learned Civil Judge (Senior Division), Kinnaur at Rekong Peo (learned Trial Court) were upheld. (The parties shall hereinafter be referred 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 possession of the suit land, mentioned in para-1 of the plaint, consequential relief of Permanent Prohibitory Injunction for restraining the defendants from raising construction over the suit land and mandatory injunction to restore the suit land to its original condition by demolishing the structure raised on the suit land. It was asserted that the suit land was allotted to the plaintiff during the partition proceedings conducted before the learned Assistant Collector, 1st Grade, in the year 1989. The defendants forcibly dispossessed the plaintiff from the suit land in the year 1999. They constructed a single-storied house consisting of two rooms. They started adding two rooms to the structure. The plaintiff requested the defendants not to do so, but in vain. Hence, the suit was filed for seeking the relief mentioned above. 3 2026:HHC:36274 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and jurisdiction, the plaintiff being estopped from filing the suit by his act and conduct, the suit being barred by limitation, the plaintiff having not come to the Court with clean hands and the suit being bad for mis-joinder of necessary parties. It was admitted that the suit land was partitioned by the revenue authorities. It was asserted that the plaintiff had not sought the delivery of possession after the partition and defendant No. 1 remained in possession of the suit land. He had become the owner by adverse possession. The plaintiff filed an application for delivery of possession on 03.05.2003, which was dismissed by the revenue authorities. The rooms were roofed with wooden planks and polythene sheet, and they required repair. Defendant No.1 was repairing the rooms. The suit was filed without any basis. Hence, 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. The learned Trial Court framed the following issues on 28.04.2007: - 4 2026:HHC:36274 1. Whether the plaintiff is entitled to the possession of the suit land by demolition of the structure standing over the suit land? OPP. 2. Whether defendant No.1 was in possession of the suit land prior to partition and was not evicted from it pursuant to the order of partition at any point of time and has become the owner of the suit land by way of adverse possession? OPD. 3. Whether the jurisdiction of the Court is barred as per the provisions of H.P. Land Revenue Act? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1) and Bhag Chand (PW2). The defendants examined defendant No.1 (DW1), Mir Sukh (DW2), Narayan Sukh (DW3) and Sangya Mani (DW4). 7. Learned Trial Court held that the plaintiff was recorded to be the owner of the suit land in the revenue record. The plea taken by the defendant No.1 that he had become the owner by way of adverse possession was not proved. The plaintiff filed suit based on the title. The defendants failed to prove the adverse possession, and the plaintiff was entitled to seek possession based upon his title. Therefore, learned Trial Court answered Issue No.1 in the affirmative, Issues No. 2 to 4 in the negative and decreed the suit. 5 2026:HHC:36274 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, Kinnaur (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the possession was delivered to the parties after the partition, and the entries in the revenue record were recorded to this effect. The defendants forcibly dispossessed the plaintiff, and they failed to prove any right to retain possession. The defendant No.1 had claimed adverse possession in the previous proceeding, and this claim was not accepted by the Court. There was no infirmity in the judgment and decree passed by learned Trial Court. Hence, the appeal was dismissed. 9. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law on 28.05.2009: - 1. Whether both the Courts below have misunderstood and failed to apply the appropriate provisions of the Specific Relief Act by not considering the possibility of plaintiff- respondent being compensated monetarily instead of grant of mandatory injunction. When defendants- appellants were admitted in possession of the suit land 6 2026:HHC:36274 much before the institution of the suit, have not both the Courts below acted in excess of their jurisdiction in granting the mandatory injunction by removal of the structures? 2. Whether both the Courts below have misconstrued the provisions of Articles 64 and 65 of the Limitation Act in not upholding the claim of defendants-appellants to be in adverse possession of the suit property? When the possession of defendants-appellants was proved to be before the commencement of the partition proceedings in their own right, which fact was also asserted during the partition proceedings? Was not the suit of plaintiff- respondent barred by limitation and on account of defendants-appellants having perfected their title by adverse possession over the suit land, especially when essential ingredients of adverse possession was duly pleaded and proved? 10. I have heard Mr Bhupender Gupta, learned Senior Advocate, assisted by Mr Harshit Sharma, learned counsel for the appellants and Mr Mohinder Verma, learned counsel for the respondent. 11. Mr Bhupender Gupta, learned Senior Advocate, for the appellants, submitted that the learned Court below erred in ignoring the application for seeking possession filed by the plaintiff. The plaintiff had projected a false case that he was dispossessed by the defendants in the year 1999. The possession was never delivered to the plaintiff, and defendant No.1 was in possession. He had become the owner by way of adverse 7 2026:HHC:36274 possession. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside. 12. Mr Mohinder Verma, learned counsel for the respondent, submitted that the learned Courts below had rightly held that the possession of the suit land was delivered to the plaintiff after the partition and the defendants had dispossessed the plaintiff in the year 1999. These are pure findings of fact, and this Court should not interfere with the pure findings of fact while deciding Regular Second Appeal. There is no perversity in the findings recorded by learned Courts below. 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. It was laid down by this Court in Bhagwan Dass Vs. Jagdish Chand (2001) 1 SLJ 165 that in case of trespass, the possession is the only remedy and no compensation can be awarded. It was observed: 8 2026:HHC:36274 17. In Dip Narain Singh vs. Jagmohan Ahir (AIR 1925 Allahabad 576), the plaintiff therein filed a suit for possession of the land alleging that the same, after having been encroached upon by the defendants, a house has been built therein. The learned trial court, while declining the relief of possession, awarded compensation in favour of the plaintiffs. The first appellate court affirmed the findings of the trial court. In the Second Appeal before the High Court, at the instance of the plaintiff, it was held that where immovable property is trespassed upon, monetary compensation is not the proper remedy to the plaintiff. The High Court accordingly granted a decree for possession in favour of the plaintiffs by demolition of the super-structure raised therein by the defendants. 18. Similarly, in Jiwan Ram and others vs. Hussain Bakhsh and others (AIR 1927 Lahore 534(2)), it has been held that no court can force a party to part with his property for money compensation to his adversary who has taken unlawful possession of it by erecting his building on it. 19. A Division Bench of the High Court of Madras also, in Ladooram Sowcar and another vs. Nidamarti Jala Durgaprasadaraydu (AIR 1938 Madaras 463), has held that the principle that award of damages as more appropriate remedy instead of an injunction has no application in cases of actual encroachment or trespass by the encroacher on the land of the owner. The appropriate remedy is the delivery of possession to the owner and not the award of damages. 20. The above ratio is applicable to the facts of the present case on all fours. The defendant has been proved to have encroached upon the land belonging to the plaintiff. He is a trespasser, and there is no equity in his favour. His unauthorised possession cannot be protected simply on the ground that he has raised some superstructure therein. 9 2026:HHC:36274 15. Apart from legal reasons, a jurisprudential reason for not awarding compensation in case of trespass has been provided by Ward Farnsworth in his Legal Analyst: A Toolkit for Thinking about the Law (2007, University of Chicago) at page 7: “Let’s look at some other examples. I build a house. Unfortunately, I was mistaken in my measurements, and the structure extends onto your neighbouring property by eighteen inches. There is no cheap way to correct the problem; either the house stays where it is or much of it will have to be torn down. What to do? The ex-post style of thought accepts the situation as it is and asks how it might best be resolved. Nothing the court says can change the fact that the house encroaches; all we can do now is try to keep the damage caused by the mistake to a minimum. So the natural remedy might be an order that I pay you for the strip of land I built on, perhaps with a little premium since the sale is, in effect, being forced on you. Why waste a perfectly good house by tearing much of it down? But the ex-ante perspective is entirely different. On this view, it matters little how our particular mess gets resolved. The important question is how the resolution of it will affect our behaviour in the future— and the behaviour of others like us. From this standpoint, an award of damages—a forced sale—might seem a terrible solution. It deals sensibly with the problem we already have, but it doesn’t give me or anyone else an incentive to be more careful next time. Indeed, it might create the opposite incentive: if I wanted to build on a bit of your property but were unsure whether you would be willing to sell, my best plan would be to go ahead and build and then let you sue for the value of the land. Even if I have to pay a premium, I still might be better off this way than by negotiating with you. And notice also that the ex-ante point of view is more than just a useful tool for courts to use in deciding cases. 10 2026:HHC:36274 It’s also important to remember when deciding more broadly how well a rule works. A rule requiring buildings to be torn down when they encroach might look ugly if you just study the cases where the rule actually gets used. All you would see are buildings getting torn down or neighbours demanding extortionate prices from each other to avoid that result. But the consequences of the rule don’t appear only in those cases, or even primarily in those cases. The results of the rule also include all the cases where the building never encroaches in the first place because everyone was careful to get a proper survey done—for fear that otherwise the house would have to be torn down later. So new houses that don’t get torn down are evidence of the rule’s operation, too. A rule that looks brutal and wasteful when invoked might actually be working beautifully, if invisibly, by causing the occasions for its use to be rare.” 16. He also deliberates on this issue at page 44 as under: “Recall the rule that if I mistakenly build a house that encroaches on my neighbour’s land, he usually can get an injunction ordering me to remove it; the law won’t let me wriggle out of the problem by writing him a check. (He might decide to let me do that, but we’ll come back to that possibility later.) Notice that this rule often will violate the single-owner principle; if a single owner of the two properties built a house on one of them that encroached on the other, he would be most unlikely to deal with the problem by tearing the thing down. The law doesn’t use the single-owner principle to guide its solution here because it would create bad incentives. When people choose where to build their houses, we don’t want them thinking that if they bungle the decision the law will bail them out by ordering their favoured solution—the solution they would have wanted if they owned all the land in question, which they don’t. This amounts to saying that tearing down the house is an inefficient solution to a case of encroachment—or, to be more precise, to an individual case of it. Tearing down 11 2026:HHC:36274 offending houses may well be an efficient solution to the problem of encroachment in general; it may be the rule that keeps the total cost of such fiascos lowest by causing them to occur so rarely. This reasoning might make you wonder whether the single-owner solution—letting the encroacher buy his way out of the problem—should at least be available in cases where it seems clear that there was no such abuse because the extent of the encroachment was tiny and the court is sure that it was an honest mistake. Indeed, most courts do make exceptions for those cases. 17. Therefore, no compensation could have been awarded to the owner in case of a trespass as per the judgment of this Court, and this substantial question of law is answered accordingly. Substantial Question of Law No.2: 18. The judgment of learned Trial Court in the previous suit (Ex. P2) shows that the present defendant No.1 had taken a plea of adverse possession in RSA No. 81 of 2002. However, this Court had negated this plea by holding that the plaintiff himself, while appearing as (PW1), had not stated even a single word about his adverse possession. He had not stated that he was in adverse possession and, if so, since when. This judgment was passed on 23.12.2002. Thus, the defendant no. 1 had failed to prove his plea of adverse possession on 23.12.2002. A person 12 2026:HHC:36274 becomes the owner if he remains in possession adverse to the real owner for 12 years, which period had not expired on 01.08.2008, on the date of the judgment in the present suit, and the learned Trial Court could not have held in the present suit that the defendant no. 1 had become the owner by adverse possession. Thus, there is no infirmity in the findings recorded by learned Courts below that the defendants had not proved their adverse possession. 19. It was submitted that the suit was barred by limitation because the possession was never delivered to the plaintiff. This fact was evident from the application filed by the plaintiff under Section 134 of the H.P. Land Revenue Act for the delivery of possession. This submission cannot be accepted. Once this Court has held in RSA No. 81 of 2002 that the possession was delivered to the parties after the partition, it is not possible to record any finding to the contrary in the present proceeding. It was laid down by the Hon’ble Supreme Court in Sharada Sanghi v. Asha Agarwal, 2026 SCC OnLine SC 480 that when a question has been determined between the parties in one manner, it is not permissible to litigate it again or decide it 13 2026:HHC:36274 in any other way in the subsequent proceedings. It was observed: 47. Quite apart, it would also not be unfair to criticise the conduct of the appellants as amounting to an abuse of the process of the court. Having allowed their earlier challenge to the sale deeds to attain finality, they cannot now seek to reopen the same issue in execution. Such attempt is impermissible. The process of the court cannot be used to revive what has already been consciously abandoned. This position stands squarely covered by the decision of this Court in K.K. Modi v. K.N. Modi (1998) 3 SCC 573, wherein it was authoritatively held that re- litigation of an issue already raised, or capable of being raised, constitutes an abuse of process, even if the strict requirements of res judicata are not satisfied. This Court held thus: 43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase “abuse of the process of the court” thus: “This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.” 44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The re-agitation may or 14 2026:HHC:36274 may not be barred as res judicata. But if the same issue is sought to be re-litigated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation, may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court, especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding. 45. In the case of Greenhalgh v. Mallard [(1947) 2 All ER 255] the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court. 46. In Mcllkenny v. Chief Constable of West Midlands Police Force [(1980) 2 All ER 227] the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the 15 2026:HHC:36274 court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel. (emphasis ours) 20. This position was reiterated in Nagaraj V. Mylandla v. PI Opportunities Fund-I, 2026 SCC OnLine SC 1218 wherein it was observed: ISSUE ESTOPPEL 58. It would be appropriate to consider the concept of ‘issue estoppel’ first before turning to the doctrine of ‘transnational issue estoppel’. In Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905: 1970 SCC (Cri) 584, this Court considered as to what would constitute ‘issue estoppel’ and opined to the effect that the basic principle underlying the ‘rule of issue estoppel’ is that, the same issue of fact and law must have been determined in the previous litigation and if there is any likelihood of facts or conditions changing during the two periods which are under consideration, then it would be difficult to say that the finding in the previous proceeding on a similar issue of fact would be binding during the later proceeding. Thereafter, in Hope Plantations Ltd. v. Taluk Land Board, Perinade (1999) 5 SCC 590, a 3-Judge Bench of this Court observed that it is settled law that the principles of estoppel and res judicata are based on public policy and justice, though these two doctrines differ in some essential particulars. It was noted that the rule of res judicata prevents the parties to a judicial determination from litigating the same question over again, even though the determination may be demonstrably wrong, as the parties would be bound by the judgment once it attains finality and they would be estopped from questioning it. It was further observed that the parties cannot litigate again on the same cause of action nor can 16 2026:HHC:36274 they litigate any issue which was necessary for decision in the earlier litigation and these two aspects are - ‘cause of action estoppel’ and ‘issue estoppel’. Noting that these two phrases are of common law origin, the Bench stated that, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. It was held that the determination of the issue between the parties gives rise to an ‘issue estoppel’ which would operate in subsequent proceedings in the same suit in which the issue has been determined. It was further held that it would operate even in subsequent suits between the same parties, in which the same issue arises. In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787, this Court pointed out that there is a distinction between ‘issue estoppel’ and ‘res judicata’. Per this Court, res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties, whereas the doctrine of ‘issue estoppel’ is invoked against the party if such an issue has been decided against him; he would be estopped from raising the same in a later proceeding. 59. Reference was made to the decision of the Court of Appeal in Thoday v. Thoday [1964] 1 All ER 341 (CA), wherein it was observed that estoppel per rem judicatam is a generic term which, in modern law, includes two species - the first species ‘cause of action estoppel’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties; and the second species ‘issue estoppel’ is an extension of the same rule of public policy and was explained in the following terms - there are many causes of action which can only be established by proving that two or more different conditions are fulfilled and such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the 17 2026:HHC:36274 plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in a litigation on one such cause of action, any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, neither party can, in a subsequent litigation between them, on any cause of action which depends upon fulfilment of the identical condition, assert that the condition was fulfilled if the court in the first litigation determined that it was not or deny that it was fulfilled if the court in the first litigation determined that it was. 21. Once this Court had held in contested proceedings that the parties were put in possession of the respective land allotted to them after the partition, it is impermissible for the subsequent Court to say that the parties were not so put in possession. Therefore, any evidence led before the learned Trial Court in the present proceedings to prove that the possession was not so delivered cannot be looked into and learned Courts below had rightly held that the plaintiff’s plea that he was put in possession of the suit land after the partition and was dispossessed by the defendant has to be accepted as correct. Hence, this substantial question of law is answered accordingly. Final Order: 22. In view of the above, the present appeal fails, and the same is dismissed. 18 2026:HHC:36274 23. The appeal stands disposed of, so also the pending application(s), if any. 24. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 26th August, 2026 (Chander)