Point of law: Imaginative endangerment - There is only a surmisal or imaginative threat etched in the mind of the plaintiff, that there is a potentiality of invasion on to the suit land by the defendants. The afore imaginative endangerment hence etched in the mind of the plaintiff, would cause the ill effect of the plaintiff’s prayer for injunction against the defendants, being vindicated, even when there is no actual or proven threatened invasion upon the suit land hence by the defendants.

JUDGMENT :

The predecessor-in-interest of the appellants herein (for short the plaintiff) instituted a Civil Suit bearing No. 24/1 of 2000 before the learned Civil Judge (Jr. Div) Arki, District Solan, H.P. In the afore suit the plaintiff claims the making of a decree of permanent prohibitory injunction, and, for possession, vis-à-vis, land comprised in khata-khatauni No. 12/12, Khasra No. 64, measuring 1-13 bighas, situated in Village Chhamrol, Pargana Rohanj, Tehsil Arki, District Solan, H.P (for short ‘the suit land”), and against the defendants/respondents (for short “the defendants”).

2. The learned Civil Judge concerned on 23.7.2005, upon, Civil Suit No. 24/1 of 2000, made a verdict of dismissal. The plaintiff being aggrieved by the verdict of dismissal, hence recorded by the learned trial Court, preferred Case No. 14-A/FTC/13 of 05/06, before the learned Addl. District Judge (Presiding Officer Fast Track Court) Solan, District Solan, H.P. Upon the afore Civil Appeal, the learned first Appellate Court, made a verdict rather affirming the verdict (supra) as made by the learned trial Court. Consequently, the plaintiff being aggrieved therefrom, is, led to institute there-against the instant Regular Second Appeal before this Court.

3. When the instant appeal came up for admission before this Court, this Court had admitted the appeal on 4.3.2008, on the herein- after extracted substantial questions of law No.1 to 3:-

“1. Whether the Lower Appellate Court has committed grave procedural illegality and irregularity in confining its findings only to the question of maintainability of the suit as formulated under Point No.1 without deciding the merits of the case when points No.2 and 3 were specifically formulated?

2. Whether both the Courts below have fell in grave procedural error and committed illegality and irregularity in holding that the suit filed by the plaintiff-appellant was barred by the provisions of Order 2 Rule 2, Order 9 Rule 9 and Order 23 Rule 1 of the Code of Civil Procedure, are not the findings returned by both the Courts below erroneous, illegal and perverse when cause of action and the relief claimed in both the suits were not same?

3. Whether the trial Court has committed grave error of law and jurisdiction in not appointing the Local Commissioner when the dispute between the parties was boundary dispute especially when the trial court rejected the demarcation reports proved on record by the plaintiff-appellant?”

4. The relief(s) as encapsulated in the relief cause of the plaint become extracted hereinafter:-

“It is therefore, prayed that the defendant may kindly be restrained from dispossessing the plaintiff from the suit land and from diverting the filthy water of their houses into the suit land by granting decree for permanent prohibitory injunction.

(ii) The defendant No.1 may also kindly be directed to handover back the possession of 4 biswansi of land shown in the annexed tatima as mark 64/1 by granting decree of possession in favour of the plaintiff. Any other relief which this Court deem fit may kindly be awarded.”

5. The plaintiff in proving the afore aspired relief, and, concomitantly also for the relief supra becoming granted to them, hence made reliance(s) respectively upon Ex. PW-4/A prepared on 19.7.1996, and, upon Ex. DW-1/C, prepared on 29.1.1998. Both the afore alluded exhibits are the demarcation reports prepared by the demarcating Officer, and, both reveal therein that a part of the suit land becoming encroached, upon by the defendants. The making of the afore alluded exhibits was respectively visible prior to the institution of instant suit.

6. The plaintiff had earlier to the institution of Civil suit No. 24-1 of 2000, rather instituted a suit carried in Ex. DW-1/E, before the learned Civil Judge (1st Class) Arki. The afore Civil Suit suffered, on 12.1.2000, the ill fate of its dismissal in default. A reading of Ex. DW-1/E, discloses that the suit khasra numbers as carried therein are completely