Himachal Pradesh High Court
Usha Devi vs Panna Lal & Another on 17 November, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.222 of 2015
Decided on: 17.11.2025
.
Usha Devi ...Appellant
Versus
Panna Lal & another ...Respondents
Coram
of
Hon'ble Mr. Justice Satyen Vaidya, Judge
Whether approved for reporting?
For the appellant:
rt Mr. Mohinder Verma, Advocate.
For the respondents: Mr.Sudhir Thakur, Senior Advocate with Mr. Somesh Sharma, Advocate.
Satyen Vaidya, Judge (oral) The instant Regular Second Appeal has been filed against the judgment and decree-dated 31.12.2014, passed by learned Additional District Judge (1) Solan, in Civil Appeal No.34- S/13 of 2013, whereby the judgment and decree dated 05.06.2013, passed by learned Civil Judge (Senior Division), Solan in Civil Suit No.71/1 of 2013 has been affirmed.
2. This appeal has been filed by the defendant against the decree of permanent prohibitory and mandatory injunction passed against him by both the Courts.
3. Indisputably, the land comprised in Khewat-Khatauni No.5/5 min, Khasra No.118, total measuring 8-16 bighas, situated in Mauza Pajon, Tehsil and District Solan was owned by one ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 2 Chatter Singh to the extent of ½ share. Remaining ½ share in Khasra No.118 was owned by Sumitra Devi and Jasminder in .
equal proportions. Thus, the total land in Khasra No.118 was co-
owned by Chatter Singh, Sumitra Devi and Jasminder.
4, Chatter Singh had sold 8 Biswas of land out his share in favour of the plaintiff vide sale deed dated 31.03.2001 of (Ext. PW-1/A). The extent of land sold by Chatter Singh to plaintiff was identified by Khasra No.118/1 as depicted in 'tatima' Ext. PW-
rt 1/B annexed with the sale deed.
4. Chatter Singh further sold 4 Biswas of land in favour of defendant out of remaining share in land comprised in Khasra No.118 vide sale deed dated 31.03.2003 (Ext DW-3/A).
5. The plaintiff filed the suit against the defendant claiming the right of passage to the land purchased by him from Chatter Singh in Khasra No.118/1 for connection to Nauni to Pajon Dhar Road. It was averred that at the time of sale deed executed by Chatter Singh in favour of the plaintiff, the right over said passage was specifically granted to plaintiff. As per plaintiff, though, the defendant had purchased 4 Biswas of land from Chatter Singh, but he was unauthorizedly and illegally claiming his right over the path over which the right had been granted to the plaintiff by Chatter Singh. In this backdrop, the plaintiff prayed for a decree of permanent prohibitory injunction as also ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 3 mandatory injunction against the defendant in respect of afore mentioned path.
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6. The defendant in his written statement had raised a plea that Chatter Singh had entered into an agreement to sell 4 Biswas of land with father-in-law of defendant in the year 1990 and in terms of said agreement, the father-in-law of defendant of had been using the said land by raising construction thereon. It has further been the case of the defendant that he purchased the rt said agreed land by way of sale deed dated 31.03.2003 Ext. DW-
3/A. It was also claimed that the passage/path being claimed by the plaintiff for connection to Nauni to Pajon Dhar Road was through the land purchased by the defendant and hence, the plaintiff had no right to claim such a passage.
7. Learned trial Court had framed the following issues:
"1. Whether one meter wide path is existing at the spot which was also sold to the plaintiff through sale deed, as alleged? OPP 2. Whether the defendant has been obstructing the said path illegally, as alleged? OPP
3. Whether the plaintiff is entitled to relief of injunction, as alleged? OPP.
4. Whether the suit of the plaintiff is not maintainable in the present form? OPD
5. Whether the plaintiff has not come to the court with clean hands and has concealed the material facts from the court? OPD ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 4
6. Whether the plaintiff is estopped from filing the present suit due to his own act and conduct? OPD.
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7. Relief."
8. Issues No.1 to 3 were answered in affirmative, whereas all other issues were answered in negative. The suit was decreed and the decree to the following effect was passed:
of "25. Judged in the light of my findings returned on the foregoing issues above, the suit of the rt plaintiff succeeds and the same is hereby decreed for permanent injunction restraining the defendant from interference and making any sort of construction over the suit path as shown in Tatima Ex.PW1/B as well as in the site plan Ex.PW4/A in any manner whatsoever and defendant is also directed to remove the encroachment by way of mandatory injunction made by her as shown in the red colour in site plan Ex.PW4/A in favour of the plaintiff against the defendant with costs of Rs.500/-. Decree sheet be drawn accordingly. File after due completion be consigned to record room."
9. Aggrieved against the judgment and decree passed by learned trial Court, the defendant assailed the same by filing first appeal under Section 96 of the Code, which also has been dismissed by learned first appellate Court vide impugned judgment and decree.
::: Downloaded on - 05/12/2025 21:56:25 :::CIS 510. The instant appeal was admitted on 07.11.2016 on the following substantial questions of law .
"1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal of being perverse and vitiated is not legally sustainable?
rt2. Whether on account of dismissal application under Order 26 Rule 9 of the of Code of Civil Procedure Code, the findings as recorded by learned lower appellate Court are vitiated, hence not legally sustainable?"
11. I have heard learned counsel for the parties and have also gone through the record carefully.
12. Learned counsel for the defendant/appellant would contend that Chatter Singh being one of the co-owners of Khasra No.118 was not competent to sell a specific portion of joint land.
He also alleged that the suit path as claimed by the plaintiff did not find any mention in the sale deed of plaintiff Ext. PW-1/A and even otherwise a common alternative passage had already been provided to all the residents of the area. He also took exception to contents of tatima Ext. PW-1/B particularly to the extent the suit passage was reflected in the said document between letters 'A' ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 6 and 'B'. Learned counsel further contended that if the disputed land is demarcated under the provisions of Section 107 of H.P. .
Land Revenue Act, the claim of plaintiff will be proved false.
13. On the other hand, learned Senior Advocate representing the respondent/plaintiff has supported the judgment and decree concurrently passed by both the Courts by referring to of the pleadings as also the evidence on record.
14. Learned trial Court on appraisal of oral as well as rt documentary evidence has held that tatima Ext. PW-1/B was part of the sale deed Ext. PW-1/A, by way of which Chatter Singh had sold the land measuring 8 Biswas in Khasra No.118/1 to the plaintiff. It has also been held that the plaintiff had been successful in proving the encroachment/incidents of obstructions in the passage delineated between letters "A" and "B" in 'tatima' Ext. PW-1/B. As regards the contention that Chatter Singh could not have executed sale deed of a specific area or could not have marked a specific passage for plaintiff the same has been discredited by learned trial Court on the premise that since the defendant was a subsequent purchaser of share in Khasra No.118, he had no right to oppose the transfer made by the original owner in favour of the plaintiff.
::: Downloaded on - 05/12/2025 21:56:25 :::CIS 715. Learned first appellate Court has also reappraised that material on record and thereafter has formed an opinion to .
concur with the findings of fact recorded by learned trial Court.
16. Admittedly, at the time of execution of sale deed, Ext.
PW-1/A, two other persons, namely, Sumitra Devi and Jasminder were co-owners in land comprised in Khasra No.118 with Chatter of Singh. None of them had come forward at any stage to raise objection against the execution of sale deed Ext. PW-1/A. rt Learned trial Court has observed that the co-sharers, namely, Sumitra Devi and Jasminder had extended their no objection for execution of sale deed Ext. PW-1/A and such finding of fact is also borne from the record as signatures of said co-owners are available on sale deed Ext. PW-1/A with the endorsement that they had no objection in the sale of the land by Chatter Singh in favour of the plaintiff in the manner, as reflected in the said sale deed. Thus, the defendant cannot legitimately raise any objection to such a sale deed.
17. Learned counsel for the defendant/appellant has made reference to Clause 8.37 of Chapter 8 of the Himachal Pradesh Land Records Manual to urge that the sale deed of a specific area in a joint land was prohibited. The argument so raised deserves rejection for the reason that there is no such absolute bar. The only bar is with respect to that area which is not ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 8 in a specific possession of a seller. In the facts of this case, there is nothing on record to prove that Chatter Singh was not in .
possession of the specific area which he had sold to the plaintiff.
Rather, the conduct of other co-owners as reflected from their concurrence with the sale deed Ext. PW-1/A proves otherwise.
18. The right of passage over that portion of Khasra of No.118 which had been reflected in 'tatima' Ext. PW-1/B by letters "A" and "B" has been claimed by the plaintiff as grant by the rt original owner. The said passage has duly been identified in 'tatima' Ext. PW-1/B which indisputably was annexed with sale deed Ext. PW-1/A. In the inter se dispute between the plaintiff and defendant, both of whom are subsequent purchasers from Chatter Singh, the defendant could non-suit the plaintiff if he had been able to prove that the area covered by the passage claimed by the plaintiff overlapped with the area of 4 Biswas sold to him by Chatter Singh. On the scrutiny of entire material on record, I have not found any such indicator. The fact of the matter is that the land purchased by defendant from Chatter Singh vide sale deed Ext. DW-3/A was not specifically identified which means that what had been purchased by the defendant was only a share in the remaining land of Chatter Singh. Without identification of the land sold to the defendant by the plaintiff, the defendant could not ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 9 have raised any claim over the passage claimed by the plaintiff as suit passage.
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19. The defendant has examined Shri Amar Singh as DW-6, who was son of Chatter Singh. Though, in the examination-in-chief, which was tendered by way of affidavit, DW-
6 had tried to support the case of defendant, but in cross-
of examination the entire edifice so built, stood demolished when the said witness had categorically admitted that his father had rt executed the sale deed Ext. PW-1/A with 'tatima' Ext. PW-1/B in favour of the plaintiff and it included the passage shown by letters "A" and "B" in Ext. PW-1/B. He had further admitted that the sale deed of plaintiff and 'tatima' annexed therewith, in which the passage was reflected, had been correctly prepared.
20. As regards the plea that without demarcation the rights of the parties could not have been settled, it is sufficient to observe that from the nature of dispute raised by the parties, it could not be said to be a boundary dispute more particularly, when the land purchased by the defendant was without any identification. Though, learned counsel for the appellant has cited the judgments passed by Hon'ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup and others, (2008) 8 SCC 671 and the judgments by this Court in Balbir Singh vs. Pohu Khan & Others, Laest HLJ 2017(HP) 296 and Kangru Ram vs. ::: Downloaded on - 05/12/2025 21:56:25 :::CIS 10 Sriram, 2018(2) Shim. LC 1170, but I do not consider all such judgments to be of any relevance as I have already held that the .
demarcation of land was not a relevant factor to decide the dispute.
21. It is more than settled that this Court in Regular Second Appeal will not disturb the concurrent findings of fact of unless shown to be illegal or perverse. As noticed above, I have found the findings recorded by both the Courts to be inconformity rt with the facts proved on record. The view formed by both the Courts, on the basis of material before them, is a possible view and for such reason also it needs no interference.
22. In result, the substantial questions of law, as noticed above, are decided against the appellant/defendant. The appeal is dismissed. Judgments and decrees passed by both the Courts are affirmed.
23. Decree Sheet be accordingly prepared.
24. Accordingly, the appeal is disposed of along with pending application(s), if any.
(Satyen Vaidya) Judge 17th November, 2025 (vt) ::: Downloaded on - 05/12/2025 21:56:25 :::CIS