IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 327 of 2009 Date of Decision : April 28, 2010 Sh. Abnash Chander Mehra Appellant Versus Sh. Ravinder Singh Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Anand Sharma, Advocate, for the appellant. For the respondent : Mr. Ravinder Thakur, Advocate, for the respondent. Sanjay Karol, J. (Oral) The plaintiff is the appellant and the defendant is the respondent and are referred to as such. 2. The plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure assailing the concurrent findings of fact recorded by the Courts below. The parties are immediate neighbours and this is the second round of litigation. The dispute is with regard to 10 sq. mts. of land, on part of which the defendant has allegedly raised a stair case. He has also opened his window towards the same and laid the C.I. and G.I. down pipes. Whether reports of Local Papers may be allowed to see the judgment? 2 3. Plaintiff filed a suit for permanent prohibitory injunction claiming himself to be the owner of the suit land. Without any authority the defendant is alleged to have encroached upon the same. Plaintiff prayed for a relief of permanent prohibitory and mandatory injunction for removing the unauthorized construction and the encroachment in the suit land. The defendant resisted the suit inter alia on the ground that the land in question was a subject matter of the earlier suit wherein the parties had arrived at a compromise on the basis of which a decree was passed by the Court. Plaintiff had no right, title or interest thereupon. 4. In the instant suit following issues were struck: (I) Whether the plaintiff is owner in possession of the suit land as alleged? OPP (II) Whether defendant has encroached upon about 10 sqm. area of the land of the plaintiff as alleged? OPP (III) Whether defendant has opened windows, ventilators and door over the path belonging to the plaintiff as alleged? OPP (IV) Whether defendant has laid C.I. and G.I. Pipes over the path and has raised projections over the same in an illegal manner? OPP (V) Whether suit is not maintainable? OPD (VI) Whether plaintiff is estopped by his act and conduct to file the present suit? OPD (VII) Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD (VIII) Whether plaintiff is entitled for the relief of mandatory injunction as prayed? OPP 3 (IX) Whether plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? OPP (X) Relief. 5. Plaintiff only examined himself in support of his case. The defendant, apart from himself examined Sh. Ram Kumar (DW-2). The trial Court dismissed the plaintiff’s suit in terms of its judgment and decree dated 29.8.2008. Aggrieved of the same plaintiff filed Civil Appeal No. 65-S/13 of 2008 which also stands dismissed in terms of the judgment and decree dated 2.3.2009 passed by the learned District Judge, Solan, H.P. 6. I have gone through the entire record. Now the plaintiff has filed an application being CMP No. 286 of 2010 placing on record certain documents. The site plan now sought to be filed cannot be considered at this stage. No case for exercise of discretionary relief has been made out. 7. The Courts below have held that the plaintiff has failed to prove that the path existing over 10 sq. mts. of land was exclusively used by him or that the defendant was not entitled to use the same. In the earlier suit being Civil Suit No. 85/1 of 1998 the parties had arrived at a compromise (Ext. D-4). The statements of the parties (Ext. D-2) were recorded and order dated 3.8.1998 (Ext. D-1) was passed by the Court. The compromise agreement categorically records the defendant to be the owner of 10 sq. mts. of land. 8. In this background, in my considered view, there is no merit in the appeal. Mr. Anand Sharma, learned Counsel for the appellant 4 has relied upon the decision rendered by the Apex Court in Laxmi Ram (Dead) by LR. and others versus Bietshwar Singh and others, (2008) 10 SCC 697 to contend that the Courts below have seriously erred in appreciating the oral evidence led by the parties. Each case has to be decided on its own facts. In the instant case the documentary evidence is evidently clear. Plaintiff has no right, title or interest over10 sq.mts. of land. He has failed to show as to how the defendant had encroached upon the same. No expert has been examined. The dispute also could not be resolved amicably. Parties must put an end to their litigation. 9. 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. April 28, 2010 (PK)