( 2026:HHC:14754 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 492 of 2018. Decided on :29 th April, 2026. The Secretary (PWD) to the Govt. of H.P. & Anr. ...Appellants. Versus Tej Singh & Anr. ....Respondents. Coram: The Hon’ble Mr. Romesh Verma, Judge. Whether approved for reporting?1 For the Appellants: Mr. Diwakar Dev Sharma, Addl. A.G. For the Respondents: Mr. Sanjeev Kumar Suri, Advocate. Romesh Verma, Judge (Oral). The present appeal arises out of the judgment and decree, dated 29.06.2017 as passed by learned District Judge, Mandi in Civil Appeal No. 33/2016, whereby the appeal preferred by the present appellants/defendants has been dismissed and the judgment and decree, as passed by learned Civil Judge (Jr. Division), Chachiot at Gohar, District Mandi, H.P. was affirmed, 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2026:HHC:14754 ) whereby the suit filed by the respondents/plaintiffs for possession was partly decreed. 2. The brief facts of the case are that the plaintiffs/respondents filed a suit for possession in the Court of learned Civil Judge (Junior Division) Chachiot at Gohar, District Mandi, H.P. It was averred in the plaint that land comprised in khata khatauni No. 36min/45, bearing khasra No. 501/160, measuring 00-03-12 bigha, situated at Muhal Port/207, Tehsil Chachiot, District Mandi, H.P. is owned and possessed by the plaintiff as per the revenue record. That the defendants through the suit land had constructed a road, namely, Kot-Devidhar road about 25-30 years ago without the acquisition of said land. That at the time of construction of road, the grandfather of the plaintiffs had objected to the said construction and it was requested to the officials of the department that without payment of compensation and without adopting the due process of law, the plaintiffs cannot be deprived of their property. The grandfather of the plaintiffs has made various correspondences for the acquisition of the land but the defendants had not paid any heed 3 ( 2026:HHC:14754 ) to his requests. That after the death of the grandfather of the plaintiff, the father of the plaintiff also made correspondences with the defendants. At the time of construction of road, predecessor-in-interest of plaintiffs was assured by the officials of the department/State that due compensation shall be paid to his predecessor-in-interest in due course of time and on the basis of said assurance, no action was taken by the defendants. That after completion of road, the predecessor-in-interest of the plaintiffs again approached the defendants/State for grant of compensation for utilizing the suit land, but the defendants are making lame excuses on one pretext or the other and that show the malafide intentions on the part of the State/defendants. 3. As per plaintiff, now the defendants are stacking stones on the suit land to construct retaining wall due to which path of the house of plaintiffs will be blocked and no sufficient land will be left for the plaintiffs for his courtyard and water of water channel will also enter into the house of the plaintiffs. Therefore, the suit for possession on the basis of title was filed before the learned trial Court against the defendants/appellants. 4 ( 2026:HHC:14754 ) It was prayed that the suit land, which has been utilized for the purpose of construction of the aforesaid road, the same shall be restored to its original position as it was before the construction of the road and the defendants be restrained from causing any interference over the suit land. 4. The suit was contested by the present appellants/defendants by filing written statement raising various preliminary objections with respect to the maintainability, locus- standi, cause of action, limitation etc. On merits, it was admitted that the road, namely, Kot-Devidhar road was constructed about 30 years back and the said road was constructed on the verbal consent of the predecessor-in-interest of the plaintiffs. That after construction of the road, vehicles were plying on it. The road is metalled one and nobody raised objection to it. It was denied that the department had assured the grandfather of the plaintiff for the payment of amount of compensation. All the averments made in the plaint were refuted and denied and defendants sought the dismissal of the suit. 5 ( 2026:HHC:14754 ) 5. Learned trial Court on 01.06.2012 framed the following issues:- “1. Whether the plaintiffs are entitled to the vacant possession of the suit land which is stated to have been utilized for the purpose of construction of road, as prayed for? OPP. 2. Whether the plaintiffs are also entitled for the relief of mandatory injunction to the effect that the suit land be restored to its original position as it was prior to the construction of the road, as prayed for? OPP. 3. Whether the plaintiffs are also entitled for the relief of permanent prohibitory injunction to the effect that the defendants through its agents etc. be restrained from causing any interference over the suit land or change its nature in any manner, as prayed for ? OPP. 4. Whether the suit is not maintainable, as alleged OPD. 5. Whether the the plaintiffs have no locus standi to file the present suit, as alleged? OPD. 6. Whether the plaintiffs have no enforceable cause of action and right to sue, as alleged? OPD. 7. Whether the suit of the plaintiff is time barred, as alleged?OPD 6 ( 2026:HHC:14754 ) 8. Whether the suit is not correctly valued for the purpose of court fees and jurisdiction, as alleged?OPD 9. Whether the plaintiffs have not come with clean hands, if so its effect, as alleged?OPD. 10. Relief.” 6. Learned trial Court directed the respective parties to adduce evidence in support of their contentions and finally, vide its judgment and decree dated 02.06.2016, the suit filed by the plaintiffs was partly decreed by passing a decree for possession in favour of the plaintiffs and against the defendants for vacant possession of the suit land, comprised in khata khatauni No. 36 min/45, bearing khasra number 501/160, measuring 00-03-12 bigha, situated at Muhal Port/207, Tehsil Chachiot, District Mandi, H.P. to the extent of share of plaintiffs as per jamabandi for the year 2009-10. 7. 7. Feeling dissatisfied, the defendants/appellants preferred an appeal under Section 96 of the CPC before the Court of learned District Judge, Mandi, District Mandi, H.P. on 01.07.2016. Learned first appellate Court vide its judgment dated 7 ( 2026:HHC:14754 ) 29.06.2017 dismissed the appeal preferred by the appellants/defendants. 8. Still feeling aggrieved, the defendants have preferred the present regular second appeal. 9. The appeal was admitted by this Court on 13.12.2018 on the following substantial questions of law:- 1. Whether a decree based on complete mis- appreciation of law and facts can be upheld in the eyes of law? 2. Whether civil courts are competent to entertain a time barred suit for possession and injunction. 3. Whether both the courts below have not considered the plea of limitation raised by the respondent/State and has wrongly decreed the suit and the decree are liable to be set aside on the score alone? 10. It is contended by Mr. Diwakar Dev Sharma, learned Additional Advocate General, appearing for the appellants/State that the impugned judgments and decrees, as passed by the learned Courts below, are erroneous and liable to be quashed and set aside. He has submitted that the learned Courts below have not appreciated the oral and documentary evidence placed on record in right perspective and have passed the impugned 8 ( 2026:HHC:14754 ) judgments and decrees dehors the pleadings and proof by the plaintiffs. 11. On the other hand, Mr. Sanjeev Kumar Suri, learned counsel for the respondents/plaintiffs has defended the judgments and decrees as passed by the learned courts below and has submitted that there are concurrent findings of fact, therefore, no interference is called for by invoking the provisions of Section 100 of the Code of Civil Procedure. He has further submitted that in view of the mandate of law no person can be deprived of his property without adopting the due process of law. In the present case, the State has utilized the land of the plaintiffs for construction of the road, however, neither any acquisition proceedings were initiated before constructing the road on the suit land nor any compensation amount was paid to them. Therefore, the judgments and decrees as passed by the learned Courts below are legally sustainable. 12. The case as set up by the plaintiffs before the learned trial Court is that for the construction of road, the appellants/defendants have utilized the land owned by the 9 ( 2026:HHC:14754 ) plaintiffs, therefore, a decree for vacant possession of the suit land be passed in their favour and against the defendants. 13. In order to corroborate their case, the plaintiffs have examined PW-1 Shri Goverdhan s/o Shri Narotam. In his deposition PW-1 has stated that he is the general power of attorney of plaintiffs. He has placed on record copy of affidavit, Ex. PA, whereby, he has stated that the suit land bearing khata Khatauni No. 36 min/45, khasra No. 501/160, measuring 00-03-12 bigha, situated at Muhal Port/207, Tehsil Chachiot, District Mandi, H.P. is owned by the plaintiffs. That the defendants/State, about 25-30 years ago constructed a road over the suit land known as Kot-Devidhar road and the same was constructed without consent of the plaintiffs. He has further stated that when the road was constructed his grand father has specifically raised objection with respect to utilization of the same without initiating the acquisition proceedings or without payment of amount of compensation. That though the predecessors-in-interest of the plaintiffs made several communications to the department/appellants, however, no steps were taken by them. When the road was being 10 ( 2026:HHC:14754 ) constructed by the defendants, at that relevant time, the officials of the State had assured the plaintiffs that their land will be acquired and appropriate compensation will be paid to them. However, neither the acquisition proceedings were initiated nor compensation amount has been paid to them. Therefore, he prayed for decree of suit filed by the plaintiffs. Though, the said witness was duly cross-examined, however, the defendants failed to extract anything material from him. 14. Shri Khajan Singh stepped into the witness box as PW- 2. He has also stated on the similar lines as has been stated by PW-1 Shri Goverdhan. He has tendered into evidence his affidavit Ex.PB, wherein he has stated that his land is situated adjacent to the suit land. That about 25-30 years ago, the defendants raised construction of road, namely, Kot-Devidhar road and the said construction was carried without the express consent of the plaintiffs and without initiating any acquisition proceedings and no compensation was paid to them. 15. In order to rebut the case of the plaintiffs, defendants examined DW-1 Shri Dhameshwar. At the relevant time, he was 11 ( 2026:HHC:14754 ) working as Inspector in the Public Works department. He filed his affidavit Ex.DW-1/A and in his deposition, he has stated that he retired as a Work Inspector in February, 1999. He has stated that when the road, namely, Kot-Devidhar road was being constructed, he was the Supervisor. He has stated that the road was constructed with the oral consent of the landowners. He has further stated that after obtaining the oral consent of the earlier landowners, the road was constructed and no one raised any objection till the time when the road was mettaled by the department. He has further stated that the grandfather of the plaintiffs had given consent for the construction of the road and he never raised any objection qua the same. 16. Shri Kushal Singh stepped into the witness box as DW- 2 and he has filed his affidavit Ex.DW2/A in evidence. He has stated that at the time when the road was constructed about 25- 30 years ago, he was a Beldar. He has stated that the road was constructed with the oral consent of the plaintiffs and their predecessors and at the relevant time no objection of any kind was raised by the plaintiffs and their predecessors. He has 12 ( 2026:HHC:14754 ) further stated that the grandfather of the plaintiff had given oral consent for the construction of the road. 17. Shri Diwan Singh has stepped into the witness box as DW-3 and has tendered into evidence his affidavit, Ex.DW3/A. He has stated that he had prepared the spot map of the road, namely, Kot-Devidhar road in the year 2011. He has stated that at the time of construction of road, none has filed objection qua the construction of the road. 18. The plaintiffs in order to prove its case has placed on record copy of jamabandi for the year 1989-90, Ex.PW1/B and copy of jamabandi for the year 2009-10, Ex.PW1/C. The revenue record indicates that the plaintiffs are the owners of the suit land and the classification of the land is being shown as “gairmumkin sadak”. The plaintiffs have filed the suit for vacant possession of the suit land on the basis of title. Nowhere in the written statement or in evidence, title of the plaintiffs has ever been objected by the defendants/appellants. Only stand/submission, which has been made by the State/defendants is that the road was constructed 13 ( 2026:HHC:14754 ) with the oral consent of the plaintiffs and their predecessors-in- interest and there is delay in filing the present suit. 19. The defendants/appellants are constituents of a welfare State. It is well settled that the welfare State cannot claim adverse possession against its citizens. Thus, the suit on the basis of title cannot be said to be time barred, which right could only be defeated by proof of perfection of title by way of adverse possession by the other. 20. As observed above, the respondents/plaintiffs are the title holder of the suit property. Being the owners of the suit property, they may file a suit at any stage until and unless the said right is defeated by the appellants/defendants by perfection of title by way of adverse possession. Thus, the plaintiffs/respondents were well within their right to file a suit for possession since the suit land was admittedly utilized by the State for construction of the road in question without adopting due process of law including the payment of compensation. 21. The learned Courts below after appreciating the oral as well as documentary evidence placed on record and on the 14 ( 2026:HHC:14754 ) basis of title decreed the suit as filed by the respondents/plaintiffs for vacant possession of the suit land, which has been admittedly utilized by the defendants/appellants for the construction of the road in question. 22. Admittedly, the defendants/appellants were not in possession of any document to show that the plaintiffs had consented for construction of road through the suit land. When asked specifically to demonstrate from the record that consent was ever given by the predecessor of the plaintiffs to the appellants/defendants, the learned Additional Advocate General could not brought anything material to establish the same. 23. The Hon’ble Supreme Court has repeatedly held that no person can be deprived of his property without adopting due process of law, therefore, under such circumstances, the plea as set up by the appellants-State is not tenable in the facts and circumstances of the case, once they have utilized the land of the villagers without adopting due process of law. Now the plea as raised by the present appellants is not permissible that too at the 15 ( 2026:HHC:14754 ) stage of Regular Second Appeal. There are concurrent findings of fact by the learned courts below. 24. In catena of judgments, it has been held by the Hon’ble Apex Court that the first appellate court is the final court of fact. No doubt, the second appellate court exercising the power under Section 100 of the CPC can interfere with the findings of fact on limited grounds such as – (a) where the findings is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand. 25. The Hon’ble Supreme Court while dealing with scope of interference under Section 100 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 16 ( 2026:HHC:14754 ) 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 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 17 ( 2026:HHC:14754 ) 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 18 ( 2026:HHC:14754 ) 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 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.” 26. 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. 19 ( 2026:HHC:14754 ) 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 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 16 evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A2) 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 20 ( 2026:HHC:14754 ) 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.” 27. No other point was urged by the learned counsel for the defendants/appellants. 28. The learned trial has rightly appreciated the point in controversy and decreed the suit of the plaintiffs for possession and further the learned first Appellate Court has also rightly affirmed the judgment and decree passed by the learned trial court. All the substantial questions of law are answered accordingly. 29. In view of the aforesaid discussions and for the reasons stated hereinabove, the present appeal being devoid of 21 ( 2026:HHC:14754 ) any merit deserves to be dismissed. Ordered accordingly. Decree sheet be prepared accordingly. Pending application(s), if any, also stands disposed of. 30. Records be sent back forthwith. (Romesh Verma) Judge 29th April, 2026. (jai)