IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.66/2023

Date of Decision: 01st January, 2026.

Jaimal .....Appellant

Versus .

Om Prakash and Others. …..Respondents

Coram

The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

W hether approved for reporting?1

For the Appellant: Mr. Kashmir Singh Thakur, Sr. Advocate

with Mr. Harpreet Singh, Advocate.

F or the Respondents: M r. Kutlwant Chauhan, Advocate.

Bipin Chander Negri, Judge (oral).

The appellant, by filing this appeal under section 100 of

the Code of Civil Procedure (for short, CPC), has assailed the judgment Cand decree dated 15.10.2022, passed by the learned Additional District Judge-III, Kangra at Dharamshala, Camp At Pahlampur, District Kangra, HP in Civil Appeal No.22- P/XIII/2018, affirming the judgment and decree dated 13.09.2017, passed by the learned Civil Judge (Senior Division),

HPalampur, District Kangra, HP, in Civil Suit No.232 of 2011.

2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in

which they were referred before learned trial Court.

3. Briefly stated, the facts giving rise to the present appeal are that the plaintiff-appellant had filed a suit for permanent prohibitory injunction restraining the defendants-respondents from interfering, taking forcible possession, raising construction,

1 Whether reporters of Local Papers may be allowed to see the judgment? YES

encroaching upon, extending projection of their structure, causing any nuisance on land comprised in Khata NoP. 94, Khatoni No. 144, Khasra No.540/164, measuring 00-01-58 hectares, situated in Mohal Bharoon, Mouja Sidhpur-Rani, Tehsil Palampur, District Kangra, H.P., and in the alternative for possession by way of demolition of encroachment.

4. The case of the plaintiff was that he is the exclusive owner in possession of the stuit land, which he uses as a passage to his house, and the defendants, being adjoining landowners and strangers to the title, have no right over it. He alleged that defendant No.1 started unlawful interference by digging and collecting material to encroach upon the land, and defendants No. 2 to 4 were diverting water towards the suit land, causing nuisance.

g5. The defendants contested the suit, asserting that after a Khangi partition, a portion of the land (Khasra No.540/164/9) was kept as a 'Gair Mumkin Rasta' (common passage) for the use of all co-sharers, including the parties. They claimed that the plaintiff had executed a sworn affidavit agreeing that this 2 meter wide passage could be used by all co-sharers, including the defendants, and they had been using it since without objection. They denied all allegations of encroachment or nuisance

6. On the pleadings of the parties, the following issues were framed by the learned trial court:-

1. Whether plaintiff is entitled for decree of permanent prohibitory injunction as prayed for ?OPP

2. Whether plaintiff in alternative is entitled for a decree of possession by way of demolition, as prayed for ?OPP

3. Whether suit of the plaintiff is not legally maintainable ?OPD 4. Whether plaintiff has no cause of action to file the present suit ?OPD

5. Whether plaintiff h as no locus standi to file the present suit ?OPD

6. Whether plaintiff is estopped from filing the present suit due to his own act & conduct ?OPD

7. Relief.

7. Upon considering the evidence, the trial court decided the issues against the plaintiff and dismissed the suit.

8. Feeling aggrieved, the plaintiff preferred the first appeal. It was contended before the First Appellate Court that the impugned judgment was against the law and evidence. The findings were alleged to be incorrect as the plaintiff was the exclusive owner. It was argued that the report of the Local Commissioner, which indicated that defendant No.1 had encroached upon the plaintiff's land to the extent of half a meter, was ignored.

9. The appellant argued that the defendants admitted being in possession of the total land they bought, and the trial court's view that th