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2026 Supreme(Online)(HP) 3103

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Romesh Verma, J
Vivek Kumar – Appellant
Versus
Labh Singh – Respondent
RSA No. 241 of 2020

Advocates:
For the Appellants/Petitioners: Bimal Gupta, Simran
For the Respondents: B.S. Chauhan, Aditi Rana, Sahil Verma

The High Court, in a second appeal under Section 100 of the Civil Procedure Code, cannot interfere with concurrent findings of fact made by lower courts unless such findings are perverse, based on no evidence, or involve an error of law. Re-appreciation of evidence is not permitted.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope and ambit - Interference with concurrent findings of fact by courts below must be avoided by High Court unless warranted by compelling reasons or perversity - High Court is not expected to re-appreciate evidence to replace findings of lower courts - Sufficiency or adequacy of evidence is matter for court of facts - If finding is based on relevant and admissible evidence, it cannot be agitated in second appeal. (Paras 10, 12, 13, 14)

Facts of the case:
The plaintiff filed a suit for permanent prohibitory injunction regarding a path, alleging obstruction by the defendants. The defendants contested the suit and filed a counter-claim seeking permanent prohibitory and mandatory injunctions, alleging that the plaintiff had encroached upon their land and the path. The trial court dismissed the plaintiff’s suit and partially decreed the counter-claim by granting permanent prohibitory injunction but declining the relief of mandatory injunction. The first appellate court affirmed these findings. The present appeal was filed by the counter-claimant specifically against the refusal of the mandatory injunction.

Findings of Court:
The findings of the lower courts were based on the lack of concrete evidence, such as a formal demarcation report, to prove the alleged encroachment. The evidence submitted by the counter-claimant, including the testimony of an architect, was found to be weak and failed to substantiate the claim of encroachment. Consequently, the courts were justified in declining the relief of mandatory injunction.

Issues: Whether the impugned judgments failing to grant a decree for mandatory injunction were based on misreading or misconstruction of evidence, and whether such findings were perverse.

Ratio Decidendi: In exercise of its jurisdiction under Section 100 of the Civil Procedure Code, the High Court cannot interfere with concurrent findings of fact by lower courts simply because it might reach a different conclusion on re-appreciation of evidence. Interference is permissible only if the findings are contrary to law, based on no evidence, or clearly perverse. Since the counter-claimant failed to provide substantive proof (such as a demarcation report) to establish the alleged encroachment, the refusal of the mandatory injunction was legally sustainable.

Result: Appeal dismissed.

Romesh Verma, Judge :

The present regular second appeal arises out of judgment and decree as passed by learned Additional District Judge, Sirmaur District at Nahan, dated 30.07.2019, whereby the cross-objections bearing No.2/2019, titled Vivek Kumar vs. Labh Singh have been dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib, District Sirmaur, in Counter Claim No.149/1 of 2009, was affirmed, whereby the relief of mandatory injunction was declined to him.

Whether approved for reporting?, (Whether reporters of Local Papers may be allowed to see the judgment?)

Brief facts of the case are that respondent Labh Singh filed a suit for permanent prohibitory injunction against the present appellant Vivek Kumar and Virender Singh alias Khalsa alias Guru Rakha, restraining them from digging or obstructing the passage/gali leading to the house, four gathas in breadth of the p.laintiff on land comprised In Khata Khatauni No.224/460 Khasra No.96/654/494/65 (old) and Khasra Nos. 2132 to 2138 and 2140 (new) Kitta 8, total measuring 429-56 Sq. mtrs situated at mauja Up-Sampada Paonta Sahib, Tehsil Paonta Sahib, Distt. Sirmour (HP). It was averred in the plaint that defendant No.1 is rowner of a vacant plot on the northern side and length of which is 19 gathas and the length of the house of the plaintiff is 21 gathas. The plaintiff has been using the gali for his egress and ingress for the last more than 20 years, as shown in the site plan in red ink, which is the only entrance to the houses of the plaintiff and defendants. The defendants have no right, title or interest to obstruct the said entrance/gali by digging, raising construction and causing obstruction because the entire plot of the defendant No. 1 measuring 193-20 Sq.mtrs situated on the land in Khewat Khatauni No.169/385, Khasra Nos.995/654/2 (old) and 2141 (new) is connected with the main gali leading from Bhatia place to the house of Sh. S. S. Saini. Therefore, the defendants have no concern with or any right to cause obstruction over the said approach/ gali.

The plaintiff sought a decree for permanent prohibitory injunction, restraining the defendants from digging and causing any obstruction on the approach/gali leading to the house of the plaintiff, as shown in the Aksh Sajra of four gathas in breadth leading to the house of the plaintiff constructed on the land comprised in Khata Khatauni No.224/460, Khasra No.96/654/494/65 (old) and Khasra. Nos. 2132 to 2138 and 2140 (new) Kittas 8, total measuring 429-56 Sq. mtrs, situated at Mauja Up-Sampada Paonta Sahib-1 Tehsil Paonta Sahib, Distt. Sirmour (HP) by themselves or through their agents, servants, family members or assignees in any manner.

The suit was contrested by defendants No.1 and 2 by filing a written statement. They raised preliminary objections with regard to maintainability, concealment, cause of action, misjoinder etc. On merits, it was averred that the plaintiff is the owner of Khasra Nos.2132 to 2138 a nd 2140. It was stated that one of the Khasra numbers of the suit land, bearing No.2140, adjoins the land of defendant No. 1 comprised of Khasra No. 2141. Further, there is a path comprised of Khasra Nos.2110 and 2112, which adjoins Khasra Nos. 2141 and 2140. Father of defendant No.1 was owner of Khasra No.2141 and after his death, the same devolved upon defendant No.1, his brother and his mother vide mutation No. 191. Defendant No.1 is a resident of Punjab and taking advantage of his absence, the plaintiff covered Khasra No.2112 and portion of Khasra No.2141 by raising construction over it. When defendant No.1 was informed by his friends regarding the construction work, he immediately reached Paonta Sahib and requested the plaintiff to stop the construction over Khasra Nos. 2141 and 2112. Instead of stopping the construction, the plaintiff filed the suit, which is false, frivolous and incorrect.

It was stated that the

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2026 Supreme(Online)(HP) 3103

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLARomesh Verma, JVivek Kumar – AppellantVersusLabh Singh – RespondentRSA No. 241 of 2020

The High Court, in a second appeal under Section 100 of the Civil Procedure Code, cannot interfere with concurrent findings of fact made by lower courts unless such findings are perverse, based on no evidence, or involve an error of law. Re-appreciation of evidence is not permitted.

Cases Referred (7)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Romesh Verma, J
Vivek Kumar – Appellant
Versus
Labh Singh – Respondent
RSA No. 241 of 2020