IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.468 of 1998 Date of decision:3.12.2008 ______________________________________________________ Shoju Ram Appellant Versus Jeet Ram Respondents Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant:Mr.K.D.Sood, Advocate along with Mr. B.N.Gupta, Advocate. For the respondent: None. V.K.Ahuja, J. (Oral): This is a Regular Second Appeal filed by the appellant under Section 100 CPC against the judgment and decree of the Court of learned District Judge, Solan dated 4.7.1998, vide which he affirmed the judgment and decree passed by the Court of learned Sub Judge, Ist Class, Solan dated 21.2.1998 decreeing the suit of the appellant for permanent injunction as against the respondent but the relief of mandatory injunction as prayed for was not granted in favour of the appellant. Briefly stated, the facts of the case are that the appellant as plaintiff, filed a suit for permanent injunction as well as for mandatory injunction as against the respondent who was impleaded as a defendant. It was alleged by the plaintiff that he is one of the co-owners in exclusive possession of the suit land. The Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. defendant was alleged to be the owner in possession of the land adjacent to the suit land. It was further alleged that the defendant has started a sand quarry for the last about one year and is extracting sand therefrom and that his land is on the upper slope having vertical support of the adjoining land on the lower side of the defendant’s land and the land of the plaintiff is likely to come down due to the excavation work being carried out by the defendant. The plaintiff prayed that the defendant be restrained from further cutting in an indiscriminate manner. The plaintiff also prayed for the relief of mandatory injunction that the defendant be directed to construct a breast wall in his own land at his own cost. The defendant contested the suit and took up the plea that the plaintiff was not in exclusive possession of the suit land. He also pleaded that he is not carrying out any indiscriminate cutting in the land as alleged by the plaintiff and he has not caused any damage or loss to the land of the plaintiff. The averments in this regard were denied and it was pleaded that the plaintiff was not entitled to the relief of permanent injunction or for that matter the relief of mandatory injunction as prayed by the plaintiff. The learned trial Court framed the following Issues: “1. Whether the defendant is interfering in the possession of the plaintiff over the land in suit by extracting sand as alleged? OPP 2. If Issue No.1 is proved in affirmative whether the plaintiff is entitled to a decree for permanent prohibitory injunction and for mandatory injunction as prayed for? OPP 3. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 4. Whether the plaintiff has no cause of action to file the present suit as alleged? OPD 5. Relief.” After conclusion of the trial, the learned trial Court granted the relief of permanent injunction in favour of the plaintiff and as against the defendant restraining him from interfering in any manner in the suit land but the relief of mandatory injunction was declined by the learned trial Court. On appeal, the findings were affirmed by the learned first appellate Court. Being aggrieved against the decisions of the Courts below for non-grant of mandatory injunction, the plaintiff-appellant has filed this second appeal. I have heard the learned counsel for the parties and have gone through the record. On appraisal of the record of the case, it is clear that the appeal was admitted on the substantial questions of law framed along with the memorandum of appeal. The first question of law framed was whether the Courts below were justified in declining the relief of mandatory injunction when the relief of permanent prohibitory injunction had been granted to the appellant/plaintiff. The next question framed was whether the application for appointment of Local Commissioner under Order 26 Rule 9 CPC was rightly rejected by the Court below. On appraisal of the record of the Courts below, it is clear that the learned trial Court has referred to in detail the documentary as well as the oral evidence placed on record by the both the parties. The learned trial Court held that the defendant is not disputing the title of the plaintiff over the suit land nor is claiming any relief qua possession and that the plaintiff being owner in possession, has every right to claim the injunction against the probable threat to his land and granted relief of an injunction. However, keeping in view the facts of this case, no relief of mandatory injunction was granted by the learned trial Court by observing that the quarry has been stopped in the year 1977 which findings were also affirmed by the learned first appellate Court by holding that after 1979 no permission was granted to the defendant by the Mining Department of the State to work the mine and as the permission has not been granted in favour of the defendant, he is not entitled to start the work in the absence of the permission from the State Government and, accordingly, the relief of mandatory injunction was not granted by the learned trial Court. In view of the above discussion, it is clear that both the Courts below have referred to oral as well as the documentary evidence in detail led by the parties and both the Courts below have rightly held that the plaintiff was entitled to relief of permanent injunction and not the mandatory injunction in view of the fact that there was no act attributable to the defendant causing loss to his property and the plaintiff was not entitled to the relief of mandatory injunction, which findings call for no interference by this Court in this appeal. In regard to the other ground that the application for appointment of the Local Commissioner was wrongly rejected, no specific arguments were advanced and there is nothing on record to show as to how the appointment of Local Commissioner was justified in the facts and the circumstances of the case since no wrongful act is being done by the defendant. In view of the above discussion, I find no merit in the appeal which is dismissed accordingly. Parties are left to bear their own costs. 3rd December, 2008. (V.K.Ahuja) (sds)