IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 171 of 2002 Date of Decision : September 8, 2011 Sunder Singh …Appellant Versus: Prem Chand …Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the appellant: Mr. Karan S. Kanwar, Advocate For the respondent : Mr. Sanjeev Kuthiala, Advocate. Sanjay Karol, J. (Oral) This regular second appeal filed under Section 100 of the Code of Civil Procedure, 1908 was admitted on the following substantial question of law:- “1. Whether any further identification of offending obstruction, construction is required by plaintiff when prayer for mandatory injunction pertains to whole of khasra no. 151 measuring 14.64 sq. metres and decision dated 7.1.2002 of learned Distt. Judge for denying mandatory injunction to the plaintiff for want of identification is wrong and not sustainable? 2. Plaintiff (appellant herein) Sunder Singh filed suit for permanent prohibitory and mandatory injunction against defendant Prem Chand (respondent herein). The suit was partly - 2 - decreed in terms of judgment and decree dated 8.3.2000 passed by Senior Sub Judge, Sirmaur at Nahan in Civil Suit No. 186/1 of 1994. 3. Based on the rival contentions of the parties, trial Court framed the following issues. (i) Whether the plaintiff is entitled for the decree of permanent injunction, as alleged? ……OPP (ii) Whether the plaintiff is entitled to relief for the decree of mandatory injunction, as alleged? …OPP (iii) Whether the suit is not maintainable? …OPD (iv) Whether the plaintiff has no cause of action? ……..OPD (v) Whether the defendant has acquired the title to the suit land comprised in khasra No. 151 part of Khasra No. 459 (min old) and the plaintiff never used the said passage, as alleged? ……..OPD (vi) Relief. 4. It was held that the suit land was recorded in the revenue record to be in joint ownership and possession of both the parties. As such, defendant was restrained from causing any sort of interference, raising construction, hindrance or obstruction over the path existing on the suit land. Issue No.1 was decided accordingly. Qua issue No.2, trial Court found that plaintiff had failed to prove by leading legal evidence, the fact that defendant had raised any construction over the suit land which obstructed use of the path over the suit land. - 3 - 5. Defendant’s appeal assailing the findings of fact, judgment and decree passed by the trial Court stands dismissed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 142-CA/13 of 2000 in terms of impugned judgment and decree dated 7.1.2002. 6. Lower Appellate Court dismissed the appeal by making following observations: “11. At the very out-set, I may point out that no material shown to me suggesting as to whether any request was made for local inspection by the plaintiff before the learned trial Court. On the other hand, the application filed by the plaintiff under Order 6 Rule 17 C.P.C. is on record and the same was dismissed by the learned trial Court vide its separate order. 12. It has been urged by the learned counsel for the respondent that even the relief of prohibitory injunction could not have been granted to the appellant and this fact can be taken into consideration even if no cross-objections have been filed. I do not agree with this contention of the learned counsel for the respondent because it was specifically pleaded by the defendant that the plaintiff in connivance with the revenue authorities got the suit land entered as common passage, whereas it was the land exclusively owned by him. The onus of this issue was on the defendant. I may point out that ordinarily presumption of truth is attached to the entry of jamabandi and the same is presumed to be correct unless rebutted by a very strong, reliable and cogent evidence. Since no material to this effect was shown to me, I hold that this submission of learned counsel for the respondent is not tenable. Moreover, since the finding of the learned trial Court - 4 - regarding the relief of prohibitory injunction has not been assailed, therefore, I hold that the finding returned by the learned trial Court does not want any interference. 13. With respect to the relief of mandatory injunction or the relief of joint possession, it can be safely said that the decree has to contain the description of the property sufficient to identify it, though where such property can be identified by boundary or numbers in the record of settlement or survey, the decree shall specify such boundary or numbers. In this case, the only relief claimed by the plaintiff is that the defendant be directed to remove the construction raised by him in the common path i.e. suit land. He has, during the course of his examination, stated that not only the common path has been obstructed by the defendant but he has raised construction in the land exclusively owned by the plaintiff. These averments clearly suggests that not only the obstruction has been raised by the defendant on the suit land, but also on the land owned and possessed by the plaintiff. However, a decree cannot be effectively executed unless it is shown what portion of the suit land has been encroached upon by the defendant by raising his construction. For this purpose the best evidence was the demarcation report. The said report is stated to have been accepted by the defendant. However, the plaintiff did not care either to prove the said demarcation report in accordance with law or get the suit land again demarcated so that a definite and exact area could be determined, from which the defendant may be asked to remove his construction in case decree of mandatory injunction is passed against him. However, for want of this material, the Court found itself unable to pass any decree of mandatory injunction. This aspect of the case was discussed in detail in paras 8 to 14 of the - 5 - judgment. Though the learned trial Court has held that it cannot be said that the defendant encroached upon the suit land, but in my view an effective decree cannot be passed even if the defendant had encroached upon any portion of the suit land. 14. As a result of my above discussion, I hold that unless the exact description of the land from where the defendant is to be directed to remove his construction is made known, the relief of mandatory injunction cannot be granted to the plaintiff. Here, I may also point out that the relief of injunction is a discretionary relief and has to be awarded only when there is definite and exact evidence on record. No other point was urged before me. Hence, keeping in view the facts and circumstances of the case, I decide this point against the appellant.” 7. From the record, it could not be pointed out that as to how the aforesaid findings of fact are either erroneous, perverse or based on wrongful appreciation of evidence or incorrect appreciation/application of provisions of law. 8. Plaintiff did not produce any legal evidence to prove the site plan indicating the alleged unauthorized construction of the stair case carried out by the defendant. Testimonies of Sh. Som Chand (PW-2) and Mohd. Rehman (PW-3) also could not prove the plaintiff’s case of any such unauthorized construction on the disputed land. In view of the same, there was no question of decreeing the suit qua the relief of mandatory injunction. Hence concurrent findings of facts recorded by the Courts below cannot be interfered with in the instant appeal. Courts below - 6 - have held the parties to be in joint ownership and possession of the suit land over which there is a common path. 9. Hence in my considered view no question of law much less substantial question of law arises for consideration in the present appeal and the same is accordingly dismissed. ( Sanjay Karol ), Judge. September 8, 2011 (rana)