Himachal Pradesh High Court
Kamla Devi vs Sheela Devi & Others on 9 March, 2026
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.181 of 2024
Reserved on:02.03.2026
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Decided on: 09.03.2026
Kamla Devi ....Appellant
Versus
Sheela Devi & others ...Respondents
of
Coram
Hon'ble Mr. Justice Romesh Verma, Judge
Whether approved for reporting?
rt For the appellant: Mr. H.S. Rangra, Advocate. For the respondents: Ms. Anuja Mehta, Advocate.
Romesh Verma, Judge The present appeal arises out of judgment and decree as passed by the learned District Judge, Mandi, dated 05.03.2024, whereby the appeal filed by the present appellant has been dismissed and the judgment and decree as passed by learned Senior Civil Judge, Court No.1, Mandi, District Mandi, H.P. dated 22.08.2023 has been affirmed.
2. Brief facts of the case are that the plaintiff/appellant filed a suit for permanent prohibitory injunction and mandatory injunction under Sections 38 & 39 of the Specific Relief Act in the Court of learned Senior Civil Judge, Court No.1, Mandi, H.P. on 18.11.2016. It was averred in the plaint that the suit land is joint between the parties, therefore, the defendants/respondents be ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 2 restrained by way of permanent prohibitory injunction from constructing or changing the nature of the suit land and in the .
event of any construction during the pendency of suit, mandatory injunction directing the defendants/respondents to demolish the structure and restore the suit land to its original position. The suit was filed with respect to Khewat Khatauni No.153/171, Khasra of No.633/1, measuring 5.8.5 bighas, situated in Muhal Chadyara, Hadbast No.346, Patwar Circle Manyana, Tehsil Sadar, District rt Mandi, H.P. It was averred that the parties are co-sharers as per jamabandi for the year 2012-13 and the land, in question, being joint between the parties and till the time the suit land is not partitioned by metes and bounds, the defendants/respondents should be restrained from interfering or raising any construction on the best and valuable portion of the land. It was averred that the defendants with an intention to grab the best and valuable portion, started raising construction over the suit land and when they were requested not to raise any construction, the defendants/respondents have failed to accede to her request.
3. The suit was contested by the defendants/respondents by taking various objections such as maintainability, non-joinder and mis-joinder of necessary parties, valuation, jurisdiction, court fee etc. On merits, it was averred that ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 3 the status of the parties is that of co-sharers and admittedly, the land is joint between the parties. However, it was specifically .
denied that any construction is being raised over the suit land or the nature of suit land is being changed by making any developmental activity.
4. Learned trial Court framed the following issues:
of "1. Whether plaintiff and defendants are in joint ownership and possession of the land comprised rtunder Khewat Khatauni No.153/171, Khasra no.633/1, measuring 5-8-5 bighas situated in Muhal Chadyara hadbast No.346 Patwar Circle Manyana, Tehsil Sadar, District Mandi, HP? OPP.
2. Whether the defendants have raised construction over the suit land? OPP.
3. Whether the suit of the plaintiff is maintainable, as alleged?OPD.
4. Whether the plaintiff has no cause of action to file the present suit? OPD.
5. Whether the suit is bad for non joinder and mis joinder of parties, as alleged?OPD.
6. Whether the suit is not correctly valued for he purpose of court fee and jurisdiction, as alleged? OPD.
7. Relief."
5. The respective parties were directed to adduce evidence in support of their contentions and ultimately, vide judgment and decree dated 22.08.2023, the suit filed by the plaintiff was dismissed.
::: Downloaded on - 10/03/2026 20:31:45 :::CIS 46. Feeling dissatisfied, the plaintiff/appellant preferred an appeal in the Court of learned District Judge, Mandi, on .
01.11.2023. The first appellate Court, vide its judgment dated 05.03.2024, dismissed the appeal preferred by the plaintiff/appellant.
7. Still feeling aggrieved, the present regular second of appeal has been preferred by the plaintiff/appellant.
8. It is contended by learned counsel for the rt plaintiff/appellant that the learned Courts below have erred in appreciating the real point of controversy and wrongly dismissed the claim as put forward by the plaintiff/appellant. It is contended by learned counsel for the plaintiff/appellant that since the land in question being joint between the parties, the plaintiff/appellant is entitled for permanent prohibitory injunction and mandatory injunction to restore the suit land since the defendants/respondents have raised construction over the suit land.
9. On the other hand, learned counsel for the defendants/respondents has defended the judgments as passed by learned Courts below and averred that the Courts below have rightly appreciated the real point of controversy between the parties. There are concurrent findings of facts as rendered by ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 5 learned Courts below, therefore, no interference of any kind is required in the present case.
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10. It is contended that the Courts below have thrashed the oral as well as documentary evidence placed on record and rightly come to the conclusion that the plaintiff/appellant has failed to prove her case.
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11. I have heard learned counsel for the parties and with the consent of learned counsel, the case is taken up for final rt disposal at admission stage.
12. In order to corroborate her case, the plaintiff/appellant has filed her affidavit Ext. PW-1/A. Copy of jamabandi Ext. PW-1/B has also been placed on record. It has been averred in the affidavit that the suit land is joint between the parties and instead of getting the suit land partitioned, the defendants/respondents are raising construction over the best and valuable portion of the suit land. Jamabandi Ext.PW-1/B reveals that the suit land bearing Khewat No.153/171, Khasra No.633/1, measuring 5.8.5 bighas, situated in Muhal Chadyara, hadbast No.346, Patwar Circle Manyana, Tehsil Sadar, District Mandi, H.P. is in the joint ownership and possession of the plaintiff/appellant and the defendants/respondents along with other co-sharers. The learned Courts below have rightly come to ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 6 the conclusion by relying upon the copy of jamabandi that the suit land is joint between the parties including other co-sharers.
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13. As far as the other issues especially, whether the defendants/respondents have raised the construction over the suit land, the learned Courts below have come to the conclusion that the plaintiff/appellant has failed to prove her case on the said of issue. While stating her case in her examination-in-chief Ext. PW-
1/A, it has only been reproduced that the status of the suit land is rt joint and in order to defeat the rights of the plaintiff, the defendants/respondents are raising construction over the suit land without effecting any proper partition of the suit land.
Though, the defendants were requested not to raise any construction on the suit land, but, they have failed to accede to the request as made by the plaintiff/appellant. In the cross-
examination, the plaintiff/appellant has stated that the defendants/respondents have constructed a bathroom and latrine after the filing of the suit. It was denied that the construction was completed by the predecessor-in-interest of the defendants/respondents during his life time. In the cross-
examination, the plaintiff/appellant has categorically admitted that she has not placed on record any tatima in order to substantiate her claim. The plaintiff has only examined herself to prove her ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 7 case and no other independent witness has been examined on record to corroborate her case. Apart from that, neither any .
documentary evidence nor any photograph has been placed on record, which may demonstrate that any construction has been or is being raised by the defendants/respondents over the suit land.
The contention of the defendants/respondents that whatever of construction was raised by them, that was raised prior to the institution of the suit, seems to be plausible from the cross-
rt examination of the plaintiff/appellant, whereby there is no direct evidence to prove that any construction was raised in any manner over the suit land by the defendants/respondents.
14. From the perusal of the case file, it is evident that the construction, if any, raised by the defendants/respondents was completed prior to the institution of the suit and there is no evidence contrary to this. The case of the plaintiff/appellant is solely based upon the assumption and presumption. The plaintiff/appellant cannot succeed on her sole testimony in order to obtain any discretionary relief of injunction and mandatory injunction. The plaintiff/appellant was required to lead and prove her case and she was required to strengthen her by leading oral as well as documentary evidence.
::: Downloaded on - 10/03/2026 20:31:45 :::CIS 815. In the present case the sole testimony of the plaintiff does not support the case as set up by her in the plaint. Neither .
any witness has been examined to corroborate her case nor any tatima, photograph or any official from the local body has been examined in order to show that the structure/construction was raised by the present defendants on the spot.
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16. The Hon'ble Apex Court as well as this Court in its various decisions has held that merely on the ground that the suit rt land is joint between the parties cannot entitle one party to get the discretionary relief of injunction, until and unless, it is shown by the party that the proposed construction raised by the other side is detrimental to his/her rights and it amounts to his/her ouster from the suit land. In the present case, the essential ingredients for grant of injunction are missing. Therefore the learned Courts below have rightly rejected the claim of plaintiff/appellant. The jointness of the suit land will not automatically grant any relief to the plaintiff/appellant. The case of the plaintiff/appellant that the defendants/respondents are raising construction over the suit land, coupled with the fact that they are raising construction over the best and valuable portion of the land, has to be established that the said construction, if any, is prejudicial to her rights and it would amount to ouster of the plaintiff/plaintiff from the suit land.
::: Downloaded on - 10/03/2026 20:31:45 :::CIS 917. The Hon'ble Supreme Court in n Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545, held as under:-
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"19. 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 of procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no rtefforts 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 ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 10 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 of 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."
rt
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 ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 11
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 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 of and it must be necessary to decide that question of law for a just and proper decision of the case. An rtentirely 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."
18. This Court in case titled Ashok Kapoor vs. Murtu Devi, 2016 (1) SLC 2007 has laid down the legal parameters as under:-
"46. On consideration of the various judicial pronouncements and on the basis of the dominant view taken in these decisions on the rights and liabilities of the co-sharers and their rights to raise construction to the exclusion of others, the following principles can conveniently be laid down:-::: Downloaded on - 10/03/2026 20:31:45 :::CIS 12
i) a co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property absolutely .
and simply because he is a co-owner unless any act of the person in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out of possession.
ii) Mere making of construction or improvement of of, in, the common property does not amount to ouster.
(iii) If by the act of the co-owner in possession rt the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to prevent the diminution of the value and utility of the property.
(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-
owners, a co-owner out of possession can seek an injunction to prevent such act which is detrimental to his interest.
(v) before an injunction is issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or an accustomed user of the joint property would be inconvenienced or interfered with.
(vi) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 13 convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience."
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19. The Coordinate Bench of this Court has held that mere making of the construction or improvement in the common property does not amount to ouster. It has further been held that the co-owner is not entitled to an injunction restraining another of co-owner from exceeding his rights in the common property, absolutely and simply because he is a co-owner unless any act of rt the person in possession of the property amounts to ouster prejudicial or adverse to the interest of co-owner out of possession.
20. Therefore, both the Courts below have rightly concluded that there is no proof that the defendants/respondents raised construction over the suit land, as alleged by her. The plaintiff/appellant has also admitted that there are several litigations going on between the parties. It has been admitted by the plaintiff/appellant that neither any tatima nor photographs have been placed on record in order to show that any construction has been raised by the defendants over the suit land that too over the best and valuable portion of the suit land. The bald statement of the plaintiff/appellant will not establish her case.
Therefore, the concurrent findings of facts as rendered by learned ::: Downloaded on - 10/03/2026 20:31:45 :::CIS 14 Courts below are legal, valid and sustainable and do not call for any interference. No question of law much less substantial .
question of law arises in the present appeal.
21. Consequently the present appeal being devoid of any merit is dismissed along with pending application(s), if any.
of
( Romesh Verma )
rt Judge
9th March, 2026
(vt)
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