IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.372 of 2000 Date of decision : May 27, 2010 Roshan Lal and others …Appellants. Versus Padam Chand and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate, for respondent No.1. Surjit Singh, J (Oral) This Regular Second Appeal by the defendants is directed against the judgment and decree dated 17th November, 1999 of learned Additional District Judge, Shimla, whereby accepting the appeal of respondent Padam Chand against the judgment and decree dated 2nd September, 1997 of the trial Court, by which respondent’s suit was dismissed, the said judgment and decree of the trial Court have been set aside and the suit of the respondent-plaintiff decreed. 2. Plaintiff-respondent filed a suit for issuance of permanent prohibitory injunction restraining the defendants- appellants from interfering, in any manner whatsoever, in his possession over Khasra No.744 and also for mandatory injunction for removal of four pillars, which the defendants Whether reporters of the local papers may be allowed to see the judgment? …2… had allegedly erected on a portion of Khasra No.744, to the extent of one biswa area, as shown in Tatima Ex. PW-2/A. It was pleaded that the plaintiff was owner in possession of Khasra No.744 and that the defendants, while constructing their house on the adjoining land, had made encroachment on a portion of that Khasra number, to the extent of one biswa area, by erecting four pillars, behind the back of the plaintiff. 3. Defendants-appellants contested the suit. They denied that they had raised any construction or erected any pillars on Khasra No.744 and that as a matter of fact their entire structure, including the pillars, stood on their own adjoining land bearing Khasra No.1404. It was also stated that the suit was barred by principle of res judicata, as earlier also a suit had been filed by the respondent-plaintiff, claiming that he was in possession of Khasra No.1404, belonging to the appellants-defendants and that the latter were trying to interfere in his possession by raising construction and that suit had been dismissed. 4. Trial Court framed issues based on the pleadings of the parties and recorded evidence adduced by the parties. At the end of the trial, it was held that there was no evidence that any encroachment had been made on Khasra No.744 or that the defendants were threatening to cause any interference in Khasra No.744. Consequently, the suit was dismissed. …3… 5. Appeal was filed against the judgment and decree of the trial Court by the respondent-plaintiff. Learned Additional District Judge accepted the appeal, set aside the judgment and decree of the trial Court and decreed the suit. 6. Defendants have filed the present appeal against the judgment and decree of Additional District Judge. It was admitted on the following substantial questions of law: “1. Whether suit was barred on account of the principle of resjudicata. 2. Whether exhibit PW-2/A, tatima prepared by halqua patwari cannot be held to be valid piece of evidence to determine the boundaries of Khasra No.744 and 1404 and due to mis-reading and mis-appreciations of the pleadings of the parties and also the evidence on record the findings as recorded by Ld. Addl. District Judge, Shimla, are vitiated. 3. Whether due to non-consideration of documents exhibit DB, DC, DE, DF, DG, DH, DJ & DK the findings as recorded by the Learned Addl. District Judge, Shimla vitiated or not?” 7. The subject matter of the earlier suit was different from the subject matter of this suit. It is appellants’ own case that in that case plaintiff’s claim was that he was in possession of Khasra No.1404 and that the same was owned by the appellants-defendants and that they were trying to interfere in his possession. The present suit pertains to Khasra No.744, which is admittedly different from Khasra No.1404, the new Khasra number of which is 1458/743. Therefore, the suit cannot be said to be barred by principle of res judicata. Consequently, substantial question of law No.1 …4… is answered against the defendants-appellants. Substantial question of law No.3 is also answered against the defendants-appellants, because the documents referred to in this question were tendered to support the plea of res judicata only. 8. As regards substantial question of law No.2, a bare look at the statement of the Patwari, namely Basander Dass (PW-2), shows that he did not carry out any demarcation on the spot. Admittedly, Khasra Nos.1458/743 and 744 are adjacent to each other. Plaintiff’s plea is that four pillars have been raised on Khasra No.744. Defendants- appellants denied it and alleged that the construction had been raised by them on their own Khasra No.1404(old), new number of which is 1458/743. 9. Merely by getting prepared a Tatima from Patwari, without getting the boundary of the two Khasra numbers delineated, the plaintiff cannot succeed in his claim. It was incumbent upon him to have led positive evidence to show that four pillars and tin-sheet roof on those pillars existed on a portion of Khasra No.744. This he could have done only by getting the boundary delineated by approaching the concerned Revenue Officer and this he did not do. Thus, there is no evidence on record to show that pillars have been erected on Khasra No.744. 10. Learned counsel for the respondent submits that none of the defendants stepped into the witness-box to …5… controvert the testimony of the plaintiff and, therefore, adverse inference is to be drawn against them. Submission has been noted only to be rejected. When the plaintiff failed to discharge the initial onus, there was hardly any need for the defendants to have adduced evidence to rebut plaintiff’s evidence. 11. It is also submitted by the learned counsel for the respondent-plaintiff that when the defendants-appellants admitted that the plaintiff is the owner of Khasra No.744, suit ought to have been decreed. This submission is also liable to be rejected. In a suit for injunction of this kind, plaintiff can succeed if he proves, in addition to the fact of his being in possession, the fact that there is threat from the opposite side to his right to remain in possession. 12. For the foregoing reasons, substantial question of law No.2 is also answered in favour of the defendants- appellants. 13. As a result of the above discussion and answers to the substantial questions of law, appeal is allowed, judgment and decree of the first Appellate Court, decreeing the suit of the plaintiff-respondent, is set aside and the judgment and decree of the trial Court, dismissing the suit of the plaintiff, is restored. Appeal stands disposed of. May 27, 2010(sd) ( Surjit Singh ), J