Khazana Ram @ Gian Chand v. Chhitri

defendants before the learned trial court on 29.12.2015. As per the averments, as made in the plaint, the land comprised in Khewat No. 289, Khatauni No. 318, Khasra Nos. 434, 435, 437, 445, 466, 434/444, 836/467, Kita-7 measuring 11-4- 18 Bighas, situated in Muhal Chamukha/41, Tehsil Sundernagar, Distt. Mandi, H.P. is recorded in the joint ownership and possession of the plaintiff and defendant No.1 together with other co-sharers, but the same has been partitioned vide mutation No. 1086, dated 31.10.2014 thus, the plaintiff, defendant No.1 and other co-sharers are coming in the separate ownership and possession of their land allotted to them in the partition. The suit land bearing Khasra No. 437/2, measuring 0-8-12 bighas has been allotted to the plaintiff and she is the exclusive owner in possession of the same. The defendants from 25.12.2015 without consent and permission of the plaintiff started digging the suit land and they were adamant to raise 3 unlawful construction over the suit land.

It was averred that in case the defendants are not restrained from causing unlawful interference and raising illegal construction over the suit land, in that event the rights of the plaintiff will be adversely affected. Therefore, it was prayed that the suit of the plaintiff be decreed restraining the defendants from raising any construction over the suit land and changing its nature and converting it into their house use in any manner whatsoever and in case the defendants succeeded in raising construction over the suit land or are found in possession of any part of the suit land in that event a decree for mandatory injunction be passed for demolition of the structure and vacant possession of suit land be got delivered to the plaintiff at the cost of the defendants. 3 The suit was resisted by defendants No. 1 to 4 by filing written statement, wherein preliminary objections qua maintainability, cause of action, locus standi, estoppel etc. were raised.

On merits, it was averred that the plaintiff is not in possession of the joint land, though she is joint owner. The entire joint land comprised in Khewat No. 289, Khatauni No. 318, Khasra Nos. 434, 435, 437, 445, 466, 434/444, 836/467, Kita-7 measuring 11-4-18 Bighas, situated in 4 Muhal Chamukha/41, is in possession of one Mangat Ram, son of Bangali and land measuring 00-04-00 bighas was purchased by defendant No.1 from Mangat Ram vide registered sale deed No. 135/2011, dated 8.3.2011 and at the time of purchase, defendant No.1 was put in possession of Khasra No. 437/1. After purchase of aforesaid land, defendant No.1 levelled the same by cutting it through excavator. 4 It was further averred that one Manpreet Kaur, w/o Kulwant being daughter-in-law of Goldsmith had purchased a share of one Dimple, who was not in possession of the suit land and applied for the partition of land under Section 123 of the H.P. Land Revenue Act vide file No.

45/2011 and being not in possession of the land under partition in connivance with revenue officials and with the abuse of process of law took undue advantage of the illiteracy of simpleton persons of the village and illegally got allotted the entire road frontage of the land in her name. Defendant No.1 came to know about the alleged partition on 4.12.2015 when the Kanungo came on spot and thereafter he filed an appeal before Sub Divisional Collector, Sundernagar. Land for the construction of four-lane had been acquired in the 5 joint holding before partition and the compensation of the acquired land has also been given to the parties as per their respective shares in the joint holding, as such partition was required to be done after deducting the acquired land from the joint holding, which has not been done by the Assistant Collector, 1st Grade, Sundernagar. It was stated that defendant No.1 intended to raise only protection wall in the suit land, which is in his possession as co-sharer and has been levelled by him much prior to filing of the suit. Therefore, defendants No.1 to 4 prayed for dismissal of the suit. 5 The plaintiff filed replication to the written statement, wherein the contents of the plaint were reiterated. 6 On the pleadings of the parties, the learned trial court on 23.06.2018 and 10.10.2022 framed the following issues:-

Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for?...OPP.

Whether the plaintiff is entitled for the decree of mandatory injunction, as prayed for? ... OPP. 2A Whether the partition proceedings on the basis of which plaintiff is laying claim over Khasra No.437/2 is wrong, illegal, null and void? ...OPD. 6

Whether the suit is not maintainable? ... OPD.

Whether the plaintiff has not come to the court with clean hands?...OPD.

Whether the suit is bad for non joinder and mis joinder of necessary parties? OPD.

Whether the plaintiff has no cause of action to file the present suit? OPD.

Whether the plaintiff has no locus standi to file the present suit? OPD.

Whether the plaintiff is estopped from filing the present suit by her own act and conduct? OPD

Relief. 7 The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 1.4.2023 decreed the suit of the plaintiff for permanent prohibitory injunction restraining the defendants from causing any sort of interference over the suit land and changing its nature in any manner, whereas the suit of the plaintiff seeking mandatory injunction was dismissed. 8 Feeling dissatisfied by the judgment and decree, dated 1.4.2023, defendant No.1, Khazana Ram, preferred an appeal before the learned first appellate Court on 16.05.2023 7 which came to be dismissed vide judgment and decree dated

12.6.2025. 9 Still feeling aggrieved by the aforesaid judgments and decrees, the appellant/defendant No.1 has preferred the present regular second appeal. 10 With the consent of the parties, the instant appeal finally heard at admission stage on the following substantial question of law:- Whether the judgments and decrees of both the learned Court below are based on mis-appreciation and misinterpretation of the oral as well as documentary evidence placed on record? 11 It is contended by Mr. H. S. Rangra, learned counsel for the appellant/defendant No.1 that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and, thus, liable to be quashed and set aside. He has submitted that the learned courts below have not taken into consideration the material placed on record in its right perspective. He has further submitted that after accepting the instant appeal, suit as filed by the plaintiff, deserves to be dismissed.

8 12 On the other hand, Mr. J. R. Poswal, learned counsel for the plaintiff/respondent, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, has prayed for dismissal of the instant appeal. 13 I have heard the learned counsel for the parties and have also gone through the material available on the case file. 14 As noticed above, the plaintiff/respondent had filed a suit before the learned trial court seeking permanent prohibitory and mandatory injunction against defendants on the ground that though the land comprised in Khewat No. 289, Khatauni No. 318, Khasra Nos. 434, 435, 437, 445, 466, 434/444, 836/467, Kita-7 measuring 11-4- 18 Bighas, situated in Muhal Chamukha/41, Tehsil Sundernagar, Distt.

Mandi, H.P. is recorded in the joint ownership and possession of the plaintiff and defendant No.1 together with other co-sharers, but the same has been partitioned by competent Court of law vide mutation No. 9 1086, dated 31.10.2014 and the plaintiff, defendant No.1 and other co-sharers are coming in separate ownership and possession of their land allotted to them in the partition. 15 It is the case of the plaintiff that the suit land bearing Khasra No. 437/2, measuring 0-8-12 bighas has been allotted to the plaintiff and she is the exclusive owner in possession of the same. The defendants, being headstrong persons, started to interfere in the peaceful possession of the plaintiff and change the nature of the suit land. 16 On the other hand, defendants No. 1 to 4 resisted and contested the suit, as filed by the plaintiff, by filing written statement, wherein they refuted and denied all the allegations, as levelled in the plaint and prayed for dismissal of the suit.

17 In order to corroborate her case, the plaintiff examined herself as PW1 and tendered in evidence her affidavit, Ext. PW1/A, wherein she reiterated the averments as made in the plaint. She has specifically stated that vide mutation No. 1086, dated 31.10.2014 she was put in possession of the land bearing Khasra No. 836/467/1 measuring 01-09-04 bighas and 437/2 measuring 00-08-12 Bighas, total land 01-17-16 Bighas of land, which has fallen 10 in her share vide rapat rojnamcha No. 60, dated 21.10.2014. The land bearing Khasra No. 437/2, measuring 00-08-12 bighas, is situated abutting the National Highway 21, which is a prime land for construction of shops and house. She further stated that in December 2015, the defendants started construction over the suit land without consent of the plaintiff and in case the defendants are not restrained from causing unlawful interference and raising construction over the suit land, in that event she would suffer huge and irreparable loss.

She prayed that the suit be decreed. In her cross-examination, the defendants could not extract anything material in their favour. 18 PW2 Joginder Pal, proved on record Rapat No. 60 pertaining to year 2014-15, Ext. PW2/A. 19 In order to rebut the case of the plaintiff, defendant No.1 Khazana Ram, appeared in the witness box as DW2 and tendered in evidence his affidavit, Ext. DW2/A, wherein he stated that he had purchased the land measuring 0-4-0 bighas from Mangat Ram vide registered sale deed No. 135/2011, dated 8.3.2011 and at the time of purchase, he was put in possession of Khasra No. 437/2, 11 which has been wrongly and illegally allotted to the plaintiff in the alleged partition proceedings. 20 DW1 Ramesh Chand, DW3 Tilak and DW4 Gama Chisti are the official witnesses examined by the defendants. 21 Perusal of para 4 of the written statement, on merits, as filed by defendants No. 1 to 4, clearly stipulates that defendant No.1/appellant intended to raise only protection wall in the suit land, which is in his possession as co-sharer and has been levelled by him much prior to filing of the suit.

Such admission on the part of defendant No.1 gave right to the plaintiff to file the suit. 22 Learned counsel for the respondent has heavily relied upon copy of document, Ext. PW1/E, whereby Khasra No.437/2 was allotted to the plaintiff in partition proceedings and mutation No. 1086 to this effect was attested by the revenue authority in presence of defendant No.1/appellant. The plaintiff has approached the Court on the strength of mutation attested in respect of Khasra No. 437/2, measuring 00-08-12 Bighas, whereby this parcel of land has been allotted to her in partition proceedings. The plaintiff has been able to prove her title over the same, therefore, the Courts below have rightly decreed her suit. 12 23 As observed above, there is admission on the part of the appellant that he intended to raise protection wall in the suit land, therefore, the learned courts below have rightly and concurrently passed decree for permanent prohibitory injunction restraining the defendants from causing any interference or raising construction over the suit land.

The plaintiff has approached the Court on the strength of the title and the learned Courts below have concurrently held the plaintiff, being owner of the suit land, to be entitled for injunction. The learned trial court had declined relief of mandatory injunction to the plaintiff, but those findings were accepted by the plaintiff and the same were never challenged before the learned first appellate Court. 24 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding 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. 13 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 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 14 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 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

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 15 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 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.

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 16 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.A- 2) 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.

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 17 preparedness to fulfil his obligation and accept performance when the time for performance arrives.” 27 No other point was urged by the learned counsel for the parties. 28 Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any illegality or perversity in the impugned judgments and decrees, as passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly. 29 In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. 3rd July, 2026 (pankaj) (Romesh Verma) Judge