Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.

JUDGMENT :

ROMESH VERMA, J.

1. The present appeal arises out of the judgment and decree, dated 29.04.2022 as passed by the learned Additional District Judge, Hamirpur, H.P. in Civil Appeal No. 31 of 2019, whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree dated 12.03.2019, as passed by the learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in Civil Suit No. 160 of 2013, titled as Raghubir Singh vs. Kuldeep, have been affirmed, whereby the suit filed by the plaintiff/respondent for permanent prohibitory and mandatory injunction was decreed.

2. Brief facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendant through his agents, servants or family members from blocking the path by way of fencing, digging the suit land comprised in Khasra No. 942/112 situated in Tika Saloh, Mouza Hathol, Tehsil Nadaun, District Hamirpur, H.P. In alternative, the plaintiff sought decree for possession in case the defendant succeeded in raising forcible construction over the suit land during the pendency of the suit. It was averred in the plaint that the plaintiff is the owner in possession of the suit land bearing Khasra No. 942/112 measuring 0-05-96 hectares and that the defendant has got no right, title or interest over the suit land and defendant is a stranger and he has no concern with the same. It was further averred that, with an intent to encroach the suit land, the defendant started raising illegal construction, including pillars, chhajja and a water tank without any right, title or interest over the same. Despite repeated requests by the plaintiff not to interfere, the defendant did not desist. Therefore, under such circumstances, the suit was filed by the plaintiff seeking decree for permanent prohibitory injunction restraining the defendant from raising any sort of construction or blocking path by way of fencing, digging suit land over Khasra No. 942/112.

3. The suit was contested by the defendant by filing a written statement and taking therein preliminary objections regarding maintainability, estoppel and special cost etc. On merits, it was admitted that he has got no concern in the suit land, However, the averments and the allegations as levelled in the plaint were refuted and denied in toto. It was stated that the defendant is not interfering in the suit land in any manner nor any construction had been raised over the suit land.

4. The plaintiff filed replication reiterating the averments as made in the plaint.

5. On the pleadings of the parties, the learned trial court on 21.08.2014 framed the following issues:-

“1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for ? OPP
2. Whether, in the alternative, the plaintiff is entitled for decree for possession, as prayed for ? OPP
3. Whether the suit is not maintainable, as alleged ? OPD
4. Whether the plaintiff has no cause of action to file this suit, as alleged ? OPD
5. Whether the plaintiff is estopped from filing the present suit by his act and conduct, as alleged ? OPD
6. Whether the plaintiff has not come to court with clean hands, if so its effect, as alleged ? OPD.
7. Whether the defendant is entitled for special costs under Section 35-A of CPC, as alleged ? OPD
8. Relief.”

6. The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 12.03.2019 decreed the s