To secure a permanent injunction regarding immovable property, the plaintiff must adequately plead and prove distinct rights and clearly identify the property in question.

JUDGMENT :

Satyen Vaidya, J.

This is plaintiff's second appeal under section 100 of the Code of Civil Procedure against the dismissal of his suit by the trial Court as also the First Appellate Court.

2. Plaintiff and defendants are real brothers. Plaintiff filed a suit before learned trial court bearing Civil Suit No. 7-1 of 2015 on the premise that the suit land comprised in khata khatauni No. 53/112, Khasra No.154, measuring 00-03-79 hectares situated in Chak Thana, Tehsil Jubbal, District Shimla, H.P., was having an ancestral house of the parties, which as per the family settlement has been in their possession as per separate respective shares. The passage for entry and exit to respective portions of the parties was common through the veranda of the defendant. It was alleged that on 6.12.2014, the defendant tried to obstruct the common passage and his attempt was thwarted. Plaintiff expressed the apprehension of being under constant threat of being divested from the common passage. He alleged that the defendant had been threatening to construct a room in the veranda used as a common passage.

3. Reliefs as prayed by the plaintiff in the suit read as under: -

“It is, therefore, most respectfully prayed that the suit of the plaintiff be decreed with costs in his favour as prayed for and against the defendant restraining him by way of permanent prohibitory injunction in any manner encroaching upon or interfering with the peaceful and lawful possession of the plaintiff over the suit land Khata Khatauni No. 53/112 Khasra number 154 area measuring 0- 03-79 hectares situated in Chak Thana, Tehsil Jubbal, District Shimla, H.P. or to make alteration, blockade of passage.

AND

The defendant be also restrained from effecting any construction over any part of suit land comprised in Khata Khatauni No. 53/112, Khasra number 154 area measuring 0-03-79 hectares situated in Chak Thana, Tehsil Jubbal, Distt. Shimla, H.P. either himself or through his agents, servants, workmen, labourers etc., in any manner whatsoever.

AND

Such other relief, injunction order or decree as this Ld. Court deems fit and proper in the facts of circumstances of the case be also passed in favour of the plaintiff and against the defendants.”

4. Defendant contested the suit by alleging that there was a passage available to respective portions of the parties from the court yard. Plaintiff had covered the court yard in front of his house by new construction and thereafter has been making endeavour to claim right of passage through the house of the defendant. The factum of both the parties having settled in their respective portions of ancestral house was not denied. Defendant raised counter allegations against the plaintiff that on 4.12.2014, in the absence of defendant, the plaintiff tried to encroach upon the portion of the hall on the first floor of the house, which otherwise was in possession of the defendant.

5. The learned trial Court framed the following issues:-

1. Whether the defendant himself as well as through his agent, servants etc., is liable to be restrained from causing any interference as well as from raising any construction upon the suit land through a decree of permanent prohibitory injunction, as prayed for? OPP.

2. Whether the suit is not maintainable in the present form, as alleged? OPD.

3. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD

4. Whether the suit of the plaintiff is bad for identification of the suit land house situated over the same, as alleged? OPD.

5. Whether the plaintiff has no locus standi to file the present suit as he has not come to the court with clean hands, as alleged? OPD.

6. Whether the plaintiff has c