IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 1^st DAY OF OCTOBER, 2021 BEFORE HON’BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA REGULAR SECOND APPEAL No.207 of 2008 Between :-

ROOP LAL SHARMA SON OF LATE SH. ISHWAR SINGH, R/O VILLAGE AND P.O. BASARA, TEHSIL RAMPUR BUSHAHR, DISTRICT SHIMLA, H.P.

……APPELLANT (BY SH. B.C. VERMA, ADVOCATE)

AND

1. M/S J.P. HYDRO POWER LIMITED, BASPA-II, CHOLTU, TEHSIL NICHAR, DISTRICT KINNAUR, THROUGH ITS VICE PRESIDENT OF THE COMPANY.

……RESPONDENT

2. SMT. INDIRA DEVI WIDOW OF LATE SH. ISHWAR SINGH

3. SH. NARESH KUMAR SON OF LATE ISHWAR SINGH

4. SH. TILAK RAJ SON OF LATE ISHWAR SINGH ALL RESIDENTS OF VILLAGE AND P.O. BASARA, TEHSIL RAMPUR BUSHAHR, DISTRICT SHIMLA, H.P.

……PROFORMA RESPONDENTS (BY SH. ANAND SHARMA, SR. ADVOCATE WITH MR. KARAN SHARMA, ADVOCATE FOR R-1)

(NONE FOR PROFORMA RESPONDENTS NO.2 TO 4)

H This appeal coming on for orders this day, the Court passed the following :

J U D G M E N T

By way of the present appeal, appellant has challenged the judgment and decree passed by the Court of learned District Judge, Kinnaur Civil Division at Rampur Bushahr, in Civil Appeal No.12 of 2007, dated 10.1.2008, vide which, the learned First Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Senior Division) Kinnaur camp at Rampur Bushahr, District Shimla, in Civil Suit No.11-1 of 2004, dated

21.4.2007.

2. Material facts necessary for adjudication of this Regular Second Appeal are that appellant-plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for mandatory injunction against the respondent-defendant (hereinafter referred to as ‘defendant’) alleging therein that plaintiffs are exclusive owner-in-possession of land comprised in Khasra No.489 to 492, situated in Mauza Basara, Pargana Sarhan, Tehsil Rampur Bushehar, District Shimla. They have built a structure over theo suit land, in Khasra No.490 and 491 and developed apple orchard over the remaining land. Defendant laid 400 KV transmission line from Karchham in District Kinnaur to Jhakhari, District Shimla, and they have erected tower No.108 and 109, outside the land of plaintiffs, but the said transmission line passes through his land. Plaintiffs had requested Officials of the defendant to keep height of transmission lines at sufficient heCight from trees and structures built over the land. The current came in the structure of the plaintiffs and the matter was reported to the pohlice on 18.1.2004 and Police had visited the spot alongwith the Junior Engineer, Electrical and after testing the roof, there was current in it. Neither the defendant shifted the transmission line nor had raised height of transmission lines viz-a-viz the houses and property of the plaintiffs.

3. The suit of the plaintiffs were resisted and contested by the defendant by filing written statement and taking preliminary objections qua maintainability, jurisdiction, non-joinder of necessary parties and estoppel. On merits, it has been admitted that towers No.108 and 109, have been installed outside the land of plaintiffs for transmission of electricity, but the transmission lines have been kept at vertical distance from house and other structures and there is no danger to the plaintiffs and their family members to live in the house.

4. From the pleadings of parties, the learned Trial Court framed following issues:

“1. Whether the plaintiff is entitled to the mandatory injunction, as prayed for ? OPP.

2. Whether the suit of the plaintiff is not maintainable in the present form ?OPD.

3. Whether this Court has no jurisd iction to try the suit, as alleged ? OPD.

4. Whether the suit is bad for non-joinder of necessary parties, as alleged ? OPD.

5. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD.

6. Relief.”

5. The learned Trial Court after deciding Issue No.1 partly in favour of the plaintiff, Issue Nos.2 to 5 in negative, partly decreed the suit.

6. FeeCling aggrieved thereby plaintiffs’ maintained first ap