MATHRA DASS vs Sukhdei deceased through LR RAM ASRA

2026:HHC:47335
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
RSA No. 218 of 2008
Reserved on: 08.10.2026
Date of Decision: 29.10.2026
Mathra Dass & Anr ...Appellants
Versus
Sukh Dei (since deceased) through LR Ram Asra ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Appellants : Mr. N.K. Thakur, Senior
Advocate, with Mr Karan Sadyal,
Advocate.
For the Respondent : Nemo
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 28.02.2008 passed by learned Additional District Judge, Una
(learned Appellate Court) vide which the judgment and decree
dated 21.10.2005 passed by learned Civil Judge (Junior Division),
Court No. 1, Una, District Una (learned Trial Court) were set aside.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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(The parties shall hereinafter be referred to in the same manner as they
High Court of H.P.
were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the plaintiff filed a civil suit before the learned Trial Court
seeking permanent prohibitory injunction for restraining the
defendants from interfering with the suit land described in the
head note of the plaint, changing its nature, character or raising
any construction over it. A relief of demolition was also sought in
case the defendants succeed in raising any superstructure over the
suit land or any part thereof. It was asserted that the suit land is
owned and possessed by the plaintiff. The plaintiff has constructed
an abadi on a part of the suit land, and some portion is lying
vacant. The defendants have no right, title or interest in the suit
land. The defendants threatened to change the nature and
character of the suit land by raising construction over it. They were
requested not to do so, but in vain. Hence, the suit was filed for
seeking the relief mentioned above.
3. The suit was opposed by filing a written statement
taking preliminary objections regarding lack of maintainability
and cause of action, the plaintiff being estopped from filing the
present suit by his act and conduct, and the plaintiff having
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suppressed the material facts from the Court. The contents of the
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plaint were denied on merits. It was asserted that the defendants
are owners in possession of the land located adjacent to the suit
land. The plaintiff has covered the entire suit land by raising
construction of the house and cowshed. No part of the suit land is
lying vacant. The suit land was demarcated before filing the suit,
and the plaintiff was duly satisfied with the report of the
demarcation. The suit has been filed without any basis. Hence, it
was prayed that the suit be dismissed.
4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
5. The learned Trial Court framed the following issues on
08.08.2002: -
(i) Whether the plaintiff is entitled to the relief of
injunction as prayed for? OPP
(ii) Whether the suit is not maintainable in the present
form? OPD
(iii) Whether the plaintiff is estopped by her act and
conduct to file the present suit? OPD
(iv) Whether the plaintiff has suppressed true facts from
the Court, if so, its effect? OPD
(v) Whether the plaintiff has no cause of action to file the
present suit? OPD
(vi) Whether the defendants are entitled to special costs, if
so, to what amount? OPD.
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(vii) Relief.
High Court of H.P.
6. The parties were called upon to produce the evidence
and the plaintiff examined Ram Asra (PW1) and Sher Singh (PW2).
The defendants examined Madan Lal (DW1) and defendant No. 2
Vinod Kumar (DW2).
7. The learned Trial Court held that the plaintiff was the
owner in possession of the suit land. The defendants are the
owners of the adjacent land. The copy of jamabandi showed that
the entire suit land was covered by the construction, and the
plaintiff’s plea that some part of the suit land was lying vacant was
not established on record. The plaintiff had failed to prove any
overt act on the part of the defendants, and she was not entitled to
the relief of permanent prohibitory injunction. Hence, the learned
Trial Court answered issue No. 1 in the negative, issue Nos. 2, 3 and
5 in the affirmative, issue Nos. 4 and 6 as not pressed and
dismissed the suit.
8. Being aggrieved by the judgment and decree passed by
the learned Trial Court, the plaintiff filed an appeal which was
decided by the learned Additional District Judge, Una, H.P. (learned
Appellate Court). The learned Appellate Court held that the plaintiff
is the owner in possession of the suit land. The defendants
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admitted the ownership and possession of the plaintiff over the
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suit land. The defendants relied upon the demarcation but failed to
produce its report, and an adverse inference has to be drawn
against them for withholding the report. The plaintiff is seeking to
protect her lawful possession, and the learned Trial Court erred in
dismissing the suit. The judgment and decree passed by the learned
Trial Court was not sustainable. Hence, the appeal was allowed, and
the judgment and decree passed by the learned Trial Court were set
aside.
9. Being aggrieved by the judgment and decree passed by
the learned Trial Court, the appellants/defendants filed the present
appeal which was admitted on the following substantial question of
law on 01.07.2008:
(i) What is the effect of non-stepping of the plaintiff in
the witness box, and in the absence of which the suit
ought to have been dismissed
(ii) Whether without proving any overt act of interference
by the defendants/appellants, the plaintiff can legally
claim the discretionary and equitable relief of
injunction, more particularly in the absence of the site
plan to show that the defendants are threatening to
interfere in her land when apparently the defendants
are owners of the adjoining land?
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10. I have heard Mr N.K. Thakur, learned Senior Advocate,
High Court of H.P.
assisted by Mr Karan Sadiyal, learned counsel for the
appellants/defendant.
11. Mr N.K. Thakur, learned Senior Advocate for the
appellants/defendants, submitted that the plaintiff had failed to
prove any overt act on the part of the defendants to justify the
grant of injunction. The learned Appellate Court erred in setting
aside the well-reasoned judgment passed by the learned Trial
Court. The Power of Attorney of the plaintiff admitted in his cross-
examination that the demarcation was conducted and the plea
taken by the defendants that the suit land was demarcated before
filing the suit and the plaintiff was satisfied with the report of the
demarcation was probable. The plaintiff had not stepped into the
witness box and examined her Power of Attorney. An adverse
inference should have been drawn against her. Therefore, he
prayed that the present appeal be allowed and the judgment and
decree passed by the learned Trial Court be set aside.
12. The plaintiff did not appear before the Court despite
service and could not be heard.
13. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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Substantial Question of Law No. 1 :
High Court of H.P.
14. Ram Asra (PW1), plaintiff’s general power of attorney,
stated that the plaintiff is the owner in possession of the suit land.
Some portion of the suit land is lying vacant, and some is covered
by Abadi . The defendants threatened to raise construction over the
vacant portion of the suit land.
15. The defendant Vinod Kumar (DW2) stated in his
affidavit containing examination-in-chief that the plaintiff has
constructed 2 rooms and 1 cowshed on her land and has covered the
whole of the land. This statement shows that the plaintiff's
ownership and possession are not disputed by the defendants. The
copy of jamabandi for the year (Ext.P1) also shows the plaintiff to
be the owner in possession of the suit land. The entry in the copy of
jamabandi carries with it a presumption of correctness and the
version of the plaintiff's Power of Attorney is duly corroborated by
the entry in the jamabandi. There is nothing in the cross-
examination of Ram Asra that some facts are within the exclusive
knowledge of the plaintiff and that her appearance before the Court
was essential. It was laid down by the Hon’ble Supreme Court in
Rattan Dev v. Pasam Devi, (2002) 7 SCC 441: 2002 SCC OnLine SC 86 ,
that the non-appearance of the party will become insignificant
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when there is other evidence on record. It was observed at page
High Court of H.P.
443: -
"5. Learned counsel for the respondent has placed reliance
on Iswar Bhai C. Patel v. Harihar Behera [(1999) 3 SCC 457]
wherein this Court has emphasised that withholding of the
plaintiff himself from the witness box and thereby denying
the defendant an opportunity for cross-examination of
himself results in an adverse inference being drawn against
the plaintiff. That proposition of law is undoubted. However,
as we have already said, that is a fact to be kept in view and
taken into consideration by the appellate court while
appreciating other oral and documentary evidence available
on record. Maybe, from other evidence — oral and
documentary — produced by the plaintiff, or otherwise
brought on record, the plaintiff has been able to discharge
the onus which lay on him, and, subject to the court forming
that opinion, a mere abstention of the plaintiff himself from
the witness box may pale into insignificance."
16. It was laid down by the Karnataka High Court in Smt.
Gangavva vs. Arjunsa AIR 2001 Karnataka 231 that it is not necessary
that a party should examine himself in all the cases. If some facts
are in the exclusive knowledge of the party, it has to appear before
the court; otherwise, it can rely upon the other evidence. It was
observed:
“It is also not necessary in law that always the party to the
proceedings should examine himself. The requirement of
law insists only that the party who puts forth his case should
prove the material facts set up. A party without examining
himself can as well establish his case, if possible, by
examining the witnesses who are competent to testify.
However, in cases where there is an onus placed on the party
to discharge and if the facts required to be deposed are
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necessarily to be testified by the party in person, in such a
situation, such a party runs the risk of facing adverse
inference for non-examination. Otherwise, it is also open for
the party to give evidence through the power of attorney,
and such evidence would be valid substituted evidence of the
plaintiff. Ultimately, appreciation of the probative value of
the evidence and competence of the person testifying is a
matter that is to be tested in the course of the cross-
examination.”
High Court of H.P.
17. This position was reiterated in Janki Vashdeo Bhojwani v.
IndusInd Bank Ltd., (2005) 2 SCC 217: 2004 SCC OnLine SC 1538, and it
was held that the power of attorney can depose for the principal for
the acts done by him as a power of attorney. It was observed at page
222:
“13. Order III, Rules 1 and 2 CPC, empowers the holder of
power of attorney to "act" on behalf of the principal. In our
view, the word "acts" employed in Order III, Rules 1 and 2
CPC, confines only in respect of "acts" done by the power of
attorney holder in the exercise of the power granted by the
instrument. The term "acts" would not include deposing in
place and instead of the principal. In other words, if the
power of attorney holder has rendered some "acts" in
pursuance to power of attorney, he may depose for the
principal in respect of such acts, but he cannot depose for
the principal for the acts done by the principal and not by
him. Similarly, he cannot depose for the principal in respect
of the matter which only the principal can have personal
knowledge and in respect of which the principal is entitled to
be cross-examined.”
18. It was held in Man Kaur v. Hartar Singh Sangha , (2010) 10
SCC 512: 2010 SCC OnLine SC 1125 that a power of attorney can
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appear as a witness to prove the transactions carried out by him as
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an attorney. It was observed at page 523:
18. We may now summarise for convenience the position as
to who should give evidence in regard to matters involving
personal knowledge:
( a ) An attorney-holder who has signed the plaint and
instituted the suit, but has no personal knowledge of the
transaction, can only give formal evidence about the
validity of the power of attorney and the filing of the suit.
( b ) If the attorney-holder has done any act or handled
any transactions, in pursuance of the power of attorney
granted by the principal, he may be examined as a
witness to prove those acts or transactions. If the
attorney-holder alone has personal knowledge of such
acts and transactions and not the principal, the attorney-
holder shall be examined, if those acts and transactions
have to be proved.
( c ) The attorney-holder cannot depose or give evidence in
place of his principal for the acts done by the principal or
transactions or dealings of the principal, of which the
principal alone has personal knowledge.
( d ) Where the principal at no point of time had personally
handled or dealt with or participated in the transaction
and has no personal knowledge of the transaction, and
where the entire transaction has been handled by an
attorney-holder, necessarily the attorney-holder alone
can give evidence in regard to the transaction. This
frequently happens in the case of principals carrying on
business through authorised managers/attorney-holders
or persons residing abroad managing their affairs
through their attorney-holders.
( e ) Where the entire transaction has been conducted
through a particular attorney-holder, the principal has to
examine that attorney-holder to prove the transaction,
and not a different or subsequent attorney-holder.
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( f ) Where different attorney-holders had dealt with the
matter at different stages of the transaction, if evidence
has to be led as to what transpired at those different
stages, all the attorney-holders will have to be examined.
High Court of H.P.
( g ) Where the law requires or contemplates the plaintiff
or other party to a proceeding to establish or prove
something with reference to his “state of mind” or
“conduct”, normally the person concerned alone has to
give evidence and not an attorney-holder. A landlord who
seeks eviction of his tenant, on the ground of his “bona
fide” need and a purchaser seeking specific performance
who has to show his “readiness and willingness” fall
under this category. There is, however, a recognised
exception to this requirement. Where all the affairs of a
party are completely managed, transacted and looked
after by an attorney (who may happen to be a close family
member), it may be possible to accept the evidence of
such attorney even with reference to bona fides or
“readiness and willingness”. Examples of such attorney-
holders are a husband/wife exclusively managing the
affairs of his/her spouse, a son/daughter exclusively
managing the affairs of an old and infirm parent, a
father/mother exclusively managing the affairs of a
son/daughter living abroad .
19. The present suit was filed based on the revenue record
and the assertion made by the plaintiff that the defendants
threatened to interfere with the suit land is not within the
plaintiff’s exclusive knowledge. Therefore, the non-appearance of
the plaintiff in the witness box will not be material. Hence, this
substantial question of law is answered accordingly.
Substantial Question of Law No. 2 :
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20. The learned Trial Court held that the plaintiff's version
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that some portion of the suit land is lying vacant is falsified by the
revenue entry, wherein the suit land was shown to be constructed,
and no portion of the suit land was shown to be vacant. This
finding is not correct because only 0-0-48 hectares were shown to
be Gair Mumkin Gohran (cowshed), whereas 0-0-25 hectares were
shown to be Gair Mumkin Raun, which is not a constructed area.
The Gair Mumkin merely means that it is not cultivable and does
not refer to the constructed portion as inferred by the learned Trial
Court. Therefore, the finding recorded by the learned Trial Court
that the whole of the suit land was constructed is not correct.
21. Madan Lal (DW1) stated that the plaintiff has
constructed a cowshed and she has covered the whole portion of
the land. The suit land was demarcated in his presence. The learned
Appellate Court had rightly held that the best evidence of the
demarcation was the report of demarcation, and in the absence of
the report, the oral evidence is not admissible. Further, the
statement of this witness that the whole portion was constructed is
not supported by the revenue record, in which only some portion is
shown to be constructed in the form of a cowshed.
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22. The defendants have taken a plea that the whole of the
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suit land was covered by the construction, which is not found to be
correct as per the revenue record. Therefore, the defendants have
restricted the plaintiff’s ownership and possession to the
constructed portion only, and this was sufficient interference with
the plaintiff’s right justifying the grant of injunction to her.
23. Even otherwise, the plaintiff is the owner in possession
of the suit land. She apprehends the interference from the
defendants, which is corroborated by the plea taken by the
defendants that no portion of the suit land is lying vacant.
Therefore, the plaintiff had a reasonable belief that the defendants
would interfere with her ownership and possession, justifying the
grant of injunction. It was laid down in Lakshmamma vs. M.P.
Krishnappa, 1999(1) Civil Court Cases 650 (Karnataka) that once the
plaintiff is found to be in possession, the injunction should have
been issued on the complaint of interference. It was observed: -
3. Once the Appellate Court finds the possession is with the
plaintiff, thus rendering a concurrent finding with the Trial
Court, there should not be any hesitation on the part of the
Appellate Court to grant an injunction. An aggrieved person
comes to the Court complaining of interference by the
defendant; maybe at a particular point of time the defendant
has not caused interference, but once the fear stands heavily
in the mind of the aggrieved person, there shall be no
difficulty for the Court to grant an injunction, especially
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when it is found that the particular person is in possession.
The fact that the plaintiff is in possession of the property has
not been disputed. On the other hand, the Courts below
rendered a concurrent finding on such possession. It is a fit
case wherein injunction ought to have been granted by the
First Appellate Court.
High Court of H.P.
24. Similarly, it was held in Shri Ram vs. Rakesh Kumar
2019(3) Civil Court Cases 787 that the plaintiff in possession is
entitled to a decree for an injunction. It was observed: -
9. At the outset, it needs to be observed that the suit is
simpliciter for an injunction and, therefore, what is required
to be seen is only whether the plaintiff is in possession of the
suit land. Once it is proved that the plaintiff is in possession,
then regardless of the title of the property or the capacity in
which the plaintiff is holding the property, he would
normally be entitled to an injunction. This decision has to be
arrived at on the basis of the pleadings and evidence of the
parties.
25. This position was reiterated in Atma Ram Vs. Onkar
Singh 2018(2) H.L.J. 1620 wherein it was held: -
9. At the outset, it needs to be observed that an owner of a
property is entitled to enjoy and seek the protection of such
enjoyment of his property, and this right can never be denied
by any Court. Therefore, the third party normally has no
right to interfere or claim any title over the property
belonging to the real owner, save and except based on the
right of an easement or by way of adverse possession etc.
26. It was submitted that the plaintiff was required to
produce the site plan showing the vacant area and the area covered
by the construction. This submission is not acceptable. It was laid
down in Ghisa Ram v. Sukhi Ram , 1977 SCC OnLine P&H 139: PLR
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(1977) 79 P&H 745 that the plaint has to accompany a copy of
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jamabandi in respect of a defined khasra no. and a map in case of
part of khasra no. It was observed at page 747:
5… ….Rule 9(ii) of Chapter I-C of the Rules and Orders of the
Punjab High Court, Volume I, is in the following terms: —
“Every such plaint shall be accompanied by a statement,
in the prescribed form setting forth the particulars
relating thereto recorded in the Settlement record and in
the last Jamabandi. This statement shall be verified by a
signature of the Patwari of the Circle in which the land
concerned is situate. Where by reason of partition, river
action or other cause, the entries in the Settlement record
in the last Jamabandi do not accord, a brief explanation of
the reason should be given in the column of remarks.
Where the suit is for a specific plot with definite
boundaries, it shall also be accompanied by a map, drawn
to scale, showing clearly the specific plot claimed, or in
relation to which the decree is to be made, and so such of
the fields adjoining it, also drawn to scale, as may be
sufficient to facilitate identification. The specific plot and
adjoining fields shall be numbered in accordance with the
statement, and the map shall be certified as correct by the
Patwari or other person who prepared it. Where, however,
the suit is for the whole of one or more Khasra numbers
as shown in the Settlement map or a share in such
numbers, and not for a specific portion thereof, no map
will be required unless it is necessary for other reasons to
show the boundaries of such Khasra numbers”.
A plain reading of this rule shows that the plaint shall be
accompanied by a statement, in the prescribed form, setting
forth particulars relating thereto recorded to the Settlement
record and in the last Jamabandi, and that the statement
shall be verified by a signature of the Patwari of the Circle in
which the land concerned is situated. According to this rule,
in order to identify the suit land, the particulars recorded in
the Settlement record and in the last Jamabandi are to be
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given, and where the suit is for a specific plot with definite
boundaries, it shall also be accompanied by a map showing
the definite boundaries. The argument of the counsel is that
since the last Jamabandi did not contain Khasra number 191,
this decree is inexcusable. There is no force in this argument
as the land is sufficiently described in the suit. It was Khasra
number 191 which was exchanged, and it was only after the
Consolidation of Holdings proceeding that in lieu of this land
some other land was allotted, particulars of which are given
in the execution application. Hence I do not find any
infringement of rule 9(ii) of Chapter 1-C of the Rules and
Orders of the Punjab High Court, Volume I.
High Court of H.P.
6. The learned counsel for the appellant also relied upon
Order 7, of 3 of the Code of Civil Procedure, which is in the
following terms:—
“Where the subject-matter of the suit is immovable
property, the plaint shall contain a description of the
property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a
record of Settlement or survey, the plaint shall specify
such boundaries or numbers.”
A reading of this rule shows that where the subject-matter of
the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in
case such property can be identified by boundaries in a
record of settlement or survey, the plaint shall specify such
boundaries or numbers. As I have observed earlier, no such
objection was taken in the written statement filed by the
judgment-debtor in the suit. The suit land was sufficiently
described, and a specific decree was passed for possession of
Khasra number 191….
27. In the present case, the suit was filed regarding the
whole of the Khasra number defined in the revenue record, and
there was no necessity to file a site plan showing the constructed
portion or the vacant portion of the land.
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28. Therefore, the learned Appellate Court had rightly
High Court of H.P.
granted the injunction in the plaintiff's favour, and this substantial
question of law is answered accordingly.
Final Order :
29. In view of the above, the present appeal fails, and it is
dismissed.
30. The present appeal stands disposed of, and so also the
pending miscellaneous applications, if any.
31. The record of the learned Courts below be returned along
with a copy of this judgment.
(Rakesh Kainthla)
Judge
th
29 October, 2026
(Nikita)
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