Concurrent findings of facts and law recorded by the lower courts cannot be interfered with unless found to be perverse.

JUDGMENT

Sandeep Sharma, J. - Instant Regular Second Appeal filed under S.100 CPC, lays challenge to judgment dated 11.2.2019 passed by learned District Judge Una, District Una, Himachal Pradesh in Civil Appeal No. 93/2018, affirming judgment and decree dated 11.6.2018 passed by learned Civil Judge, Court No.II Una, in Civil Suit No. 514/17/12 titled, Shama vs. Ashwani Kumar and another, whereby suit for injunction having been filed by the plaintiff came to be decreed.

2. Brief facts, germane for the adjudication of the appeal at hand are that the plaintiff filed a suit for permanent prohibitory injunction, restraining defendants from causing interference, taking forcible possession and changing nature by raising construction or in any other manner of the land measuring 0-02- 79 square metres, comprised in Khewat No. 147, Khatauni No. 2 300, Khasra No. 677, as entered in the Jamabandi for the years 2008-09, situate in Mohal Ajnoli, Tehsil and District Una, Himachal Pradesh (hereinafter, 'suit land'), and in the alternative, for mandatory injunction with a direction to the defendants to restore the suit land to its original. Plaintiff claimed before learned court below that suit land is exclusively owned and possessed by her alongwith other co-shares and defendants being total strangers to the suit land has no right to interfere in the same. She further alleged that defendants being strangers to the suit land, with a view to grab land of the plaintiff are threatening to make interference, change nature and character by raising construction on the suit land and since they did not desist from doing so, despite repeated requests, she is compelled to file suit.

3. Defendants by way of written statement besides raising preliminary objections qua maintainability of suit claimed before learned court below that the plaintiff has not approached learned court below with clean hands and has made an attempt to suppress material facts. Defendants also claimed that no cause of action, if any, has accrued in favour of the plaintiff enabling her to file the suit as such, same deserves dismissal on this ground. On merits, defendants submitted before learned court below that the land in Khasra Nos. 2381/642, 2382/642, 2383/642 and land in Khasra Nos. 1379/641 and 1380/641 is owned and possessed by defendants alongwith other co-shares and land in Khasra Nos. 2373/632, 2377/639, 640 and 647 is owned by Himachal Pradesh Government and at present this land is being used as path by inhabitants of the village. Defendants claimed that a Gair Mumkin Rasta exists between the land of the plaintiff and the defendants and plaintiff under the garb of suit, wants to block that passage and at no point of time, they extended threats to the plaintiff and as such, suit deserves dismissal.

4. On the basis of the pleadings adduced on record by the respective parties, following issues came to be framed by learned trial Court on 8.5.2013:

1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

2. Whether in the alternative is entitled to the relief of mandatory injunction, as prayed? OPP

3. Whether there is Gair Mumkin Rasta between the land of plaintiff, as alleged? OP

4. If issue No. 3 is decided affirmative, then whether the defendants are entitled to use the aforesaid Gair Mumkin Rasta as alleged? OPD

5. Whether plaintiff's suit is not maintainable as alleged? OPD

6. Whether the plaintiff has no cause of action and locus standi, as alleged? OPD

7. Whether the plaintiff has not approached with clean hands and concealed the material facts, as alleged? OPD

8. Whether plaintiff has not affixed proper court fee by proper valuation and jurisdiction, as alleged? OPD

9. relief"

5. Plaintiff with a view to prove her case, besides examining herself as PW-1 also examined Suresh Raj (PW-2). Plaintiff also placed on record documentary evidence i.e. Ext. P1 Fard Jamabandi for the years 2008-09, whereas, defendants while examining defendant No.1 as DW-1