In second appeals, courts will not interfere with concurrent findings of fact by lower courts on encroachment claims, absent perversity or substantial question of law, particularly when Local Commissioner report confirms no encroachment.

JUDGMENT :

Romesh Verma, J.

The present appeal arises out of judgment and decree, as passed by learned Additional District Judge, Sarkaghat, District Mandi, H.P. dated 23.12.2023, whereby the appeal filed by the present appellant was dismissed and the judgment and decree as passed by the learned Civil Judge( Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. dated 31.3.2023 was affirmed.

2. Brief facts of the case are that the present appellant/plaintiff filed a suit in the Court of learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. on 6 th September, 2014, for permanent prohibitory and mandatory injunction under Sections 38 and 39 of the Specific Relief Act, 1963. It was averred in the plaint that the land comprised in Khewat Khatauni No.130/165, bearing Khasra No.518, land measuring 00-22-60 hects. is situated at Mouza Dharmpur/97, Tehsil Sarkaghat, District Mandi, H.P. The suit land is jointly owned and possessed by the plaintiff/appellant and defendant/respondent along with other co-sharers. The house of the plaintiff/appellant is consisting of two floor, including ground and first floor, and adjoining house is of defendant/respondent. The construction of slabs of plaintiff and defendant houses are connected with each other, however, the plaintiff in order to earmark the extent and boundary of his slabs as well as his first floor, left 3 inches portion of constructed slabs by changing the size and dimension of existing pillars of ground floor of size 12X12 inches to first floor in size 9x12 inches. The plaintiff has made about 4 inche in height bricks wall on the above left area of slabs for the purpose of stopping the flow of water of his house’s slabs towards the slabs of defendant.

4. It was averred that the defendant/respondent has got no right, title and interest to interfere in any manner over the suit property as well as over the slab of the plaintiff and any unwarranted act and deed on the part of defendant/respondent qua the suit property of the plaintiff/appellant amounts to aggression and evasion on her part over the suit property. In order to harm and cause prejudice to the plaintiff/appellant, the defendant/respondent has engaged the mason and labourer on the spot and has undertaken forceful construction. The said construction is of such a nature that it is touching with the exiting exposed steel of pillars of plaintiff/appellant’s house without leaving any necessary space and setbacks. In case the defendant/respondent succeeded in raising the construction in that event the existing steel pillars are going to be covered by the construction of the defendant/respondent and ultimately, the construction of the defendant will come over the suit property and virtually it will cover the area of the plaintiff.

5. The defendant was requested to stop the construction over the suit property, however, being a headstrong persons, he did not adhere to the request of the plaintiff and threatened the plaintiff to implicate him in a false case. Though, local Panchayat was involved in order to resolve the controversy in question by amicable means, but the defendant being headstrong person refused to listen to the request of Panchayat members. Therefore, the plaintiff filed a suit for permanent prohibitor