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2025 Supreme(Online)(HP) 5088
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Satyen Vaidya, J
Krishni Devi – Appellant
Versus
State of H.P. – Respondent
RSA No. 38 of 2018
For the Appellants/Petitioners: Mr. Rajneesh K. Lal
For the Respondents: Mr. Gautam Sood
The appellate court upheld concurrent findings of fact, emphasizing that evidence must substantiate claims of encroachment for an appeal to succeed.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Regular Second Appeal filed against judgments of lower courts dismissing plaintiff's suit for permanent prohibitory injunction and mandatory injunction regarding encroachment claims on plaintiff’s land - Findings by both courts regarding the insufficiency of evidence upheld. (Paras 8, 10, 14, 15)
(B) Appellate Procedure - Standard of review - Appellate courts must respect concurrent findings of facts made by lower courts unless shown to be perverse or illegally substantiated. (Paras 11, 13)
Facts of the case:
The plaintiff claimed ownership and sought injunction against the construction of a road through her land, claiming encroachment by the defendants. Evidence presented was found insufficient to support the claim.
Findings of Court:
The courts found no evidence of encroachment on the suit land, affirming the trial court's dismissal of the case.
Issues: The primary legal issue was the sufficiency of evidence regarding encroachment on the plaintiff's land.
Ratio Decidendi: The court reinforced the principle that appellate courts should not interfere with well-supported findings of fact.
Result: Appeal dismissed.
| Table of Content |
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| 1. appellate procedure regarding appeal representations. (Para 1) |
| 2. details of the plaintiff's ownership claim and alleged encroachment. (Para 2 , 3) |
Satyen Vaidya, Judge (oral):
This Regular Second Appeal has been filed against the judgment and decree dated 13.10.2017, passed by the learned Additional District Judge, Hamirpur in Civil Appeal No. 30 of 2016, whereby the judgment and decree dated 14.3.2016, passed by the learned Civil Judge (Jr. Division) Court No.3, in Civil Suit No. 131 of 2009 has been affirmed.
2. The appellant herein was the plaintiff in Civil Suit No. 131 of 2009, decided by the learned Civil Judge, (Junior Division) Court No.3, Hamirpur on 14.3.2016. The Whether reporters of Local Papers may be allowed to see the judgment?
suit was filed for permanent prohibitory injunction, restraining the defendants (respondents hereiPn) for constructing any road through the suit land, comprised in Khewat No.14, Khatoni No. 14, Khasra No. 98/7/1, situated in Mauja Chabutra Rira Gordu Udhwala, Tehsil Sujanpur, District Hamirpur and for mandatory injunction, directing the respondents to restore the suit land to its original position.
3. The suit was filed on the premise that the plaintiff was owner of the suit land and the respondents without consent had started construction of road through the shuit land.
4g. The defendants had contested the suit by idenying the allegation.
5. Learned trial Court framed the following issues:-
“1. Whether the defendants have constructed the motorable road through the suit land of which the plaintiff is owner in possession, as alleged ? OPP.
2. If Issue No.1 above is answered in affirmative, whether the plaintiff is entitled for mandatory injunction, as prayed for? OPP.
3. Whether no cause of action accrued to plaintiff to file the present suit, as alleged? OPD.
4. Whether plaintiff has no locus-standi to file the present suit, as alleged ? OPD.
5. Whether suit of the plaintiff is bad for non compliance of mandatory provision of Section 80 CPC ? OPD.
6. Whether suit of the plaintiff has not been properly valued for the purpose of court fee a.nd jurisdiction as alleged? OPD. H
7. Whether plaintiff is estopped from filing the present suit by her own act and conduct, as alleged? OPD. f
8. Whether suit of the plaintiff is bad for non-joinder and mis-joinder of necessary of necessary parties, as alleged? OPD.
9. Relief”.
6. Issues No. 1, 5, 6 and 8 were answered in negative, whereas remaining issues were answered in affirmative. The suit of the plaintiff was dismissed by holding that the plaintiff had failed to prove any encroachment over the suit land by the defendants.
7. The first appeal under Section 96 of the Code of Civil Procedure filed by the plaintiff has also been dismissed by the learned Additional District Judge, Hamirpur vide judgment impugned by way of this appeal.
8. The appeal was admitted on 8.4.2018 on the following substantial question of law:-
“Whethr on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?
9. I have heard learned counsel for the parties and have also gone through the record carefully.
10. Both the learned Courts i.e . the learned trial Court and learned First Appellate oCourt have concurrently held that the evidence on reco rd was not sufficient to prove the allegation of encroachrment on the suit land leveled by the plaintiff against the defendants.
11. The appellant has not been able to show any material to discredit the above noticed concurrent findings of facts. Rather, record reveals that this Court had appointed a Local Commissioner vide its order dated 20.5.2024 with direction to demarcate the suit land. The Local Commissioner has submitted his report on 28.6.2024, which reveals that the demarcation was conducted in terms of order passed by this Cour
