TULA RAM JAIN vs ONKAR CHAND
- Court
- High Court of Himachal Pradesh
1 2026:HHC:25426
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
High Court of H.P.
RSA No. : 615 of 2009
.
Reserved on : 24 06.2026
Decided on : 30.06.2026
Uploaded on : 30.06.2026
Tula Ram Jain …Appellant
Versus
Onkar Chand and Another …..Respondents
Coram :
The Hon’ble Mr. Justice Virender Singh, Judge.
1
Whether approved for reporting? Yes
____________________________________________________________
For the Appellant : Mr. Prashant Sharma, Advocate.
For the Respondents : None for respondent No.1.
Mr. H.S. Rawat, Additional
Advocate General with Mr. Rohit
Sharma and Ms. Avni Kochhar
Mehta, Deputy Advocates General,
for respondent No.2.
__________________________________________________________
Virender Singh, Judge
AppellantTula Ram Jain has filed the present
appeal, under Section 100 of the Code of Civil Procedure
(hereinafter referred to as ‘the CPC’), against the judgment and
decree dated 30.09.2009, passed by the learned District Judge
(Forest), Shimla, H.P., (hereinafter referred to as the ‘learned
First Appellate Court’), in Civil Appeal No.40S/13 of 2008/06,
titled as Tula Ram Jain versus Onkar Chand & Another.
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
2 2026:HHC:25426
2. By way of judgment and decree dated
High Court of H.P.
30.09.2009, the learned First Appellate Court has dismissed
the appeal preferred by appellant Tula Ram Jain against the
judgment and decree dated 31.07.2006, passed by the learned
Civil Judge (Senior Division), Court No.1, Shimla (hereinafter
referred to as the learned trial Court’), in Civil Suit No.107/1 of
1999, titled as Tula Ram Jain versus Onkar Chand & Another,
by granting the following relief:
“Thus, in view of the above discussion the
plaintiff has no prima facie case in his favour
for the relief of the injunction. The trial Court
has wrongly decreed the suit partly granting
permanent prohibitory injunction. Therefore,
appeal, as well as the suit of the plaintiff are
dismissed with costs throughout. The decree
sheet be prepared accordingly. The record of
the trial Court along with copy of this judgment
be sent back forthwith and the file of this Court
be consigned to the record room.”
3. By way of judgment and decree dated
31.07.2006, the learned trial Court has partly decreed the suit,
by granting the following relief:
“ In view of my abovesaid discussion and
findings, the suit succeeds in part and
accordingly decreed partly with costs. A decree
of permanent prohibitory injunction is passed in
favour of the plaintiff and against the defendant
No./1restraining him from causing any kind of
interference in the suit land and set backs area
and wall comprising in Khata Khatoni
No.30/35, Khasra No.696. 679/351/1
measuring 4 biswas situated at Mohal
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
3 2026:HHC:25426
Chakdyal Harbast No.352, Tehsil and District
Shimla, H.P. However, suit qua mandatory
injunction fails. Decree sheet be prepared
accordingly and file after needful be consigned
to the records.”
High Court of H.P.
4. For the sake of convenience, parties to the
present appeal, are hereinafter referred to, in the same manner,
in which, they were referred to, by the learned trial Court.
5. Brief facts, leading to the filing of the present
appeal, as borne out from the record, may be summed up, as
under:
5.1. Plaintiff Tula Ram Jain has filed a suit for
Permanent Prohibitory Injunction, against the defendants on the
ground that he is ownerinpossession of single storeyed
building, constructed over the land bearing Khata Khatauni
No.30/35, Khasra No.696/ 679/351/1, as per the Tatima of the
spot, measuring 4 biswas, including the vacant land/set backs,
left by the plaintiff, situated at Mohal Chhakdayal, Hadbast
No.353, Tehsil and District Shimla, H.P. (hereinafter referred to
as the suit land).
5.2. The plaintiff, while constructing the building,
left the proper set backs, as per the interim development plan
(IDP) of Shimla, prescribed by defendant No.2, and a ‘No
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
4 2026:HHC:25426
Objection Certificate’ has also been issued in favour of the
High Court of H.P.
plaintiff, on 24.01.1996.
5.3. It is the further case of the plaintiff that
adjoining to the suit land, defendant No.1, has started
construction work, over the plot, consisting of Khasra No.696/
679/351/2/1, as per Tatima of the spot. However, defendant
No.1, while constructing the building, did not leave proper set
backs, as per the norms of the IDP and further encroached upon
the suit land and set backs left by the plaintiff, by extending
projection of lentil and beams over the land of the plaintiff. This
has been done by defendant No.1, despite request made by the
plaintiff.
5.4. On the basis of the above stand, the plaintiff
has sought the decree of Permanent Prohibitory Injunction,
restraining the defendant from damaging and encroaching upon
the suit land and also sought a decree for mandatory injunction
thereby directing the defendant to remove the encroachment or
projections made over the suit land/set backs of the plaintiff
and to provide proper set back, as per the provisions of the
Town and Country Planning Act.
6. When, put to notice, the suit has been
contested by defendant No.2. Defendant No.1, despite repeated
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
5 2026:HHC:25426
opportunities granted to file the written statement, could not
High Court of H.P.
file the same. As such, his defence was ordered to be struck off,
by the learned trial Court vide order dated 30.08.2001.
6.1. Defendant No.2, has filed its written statement
by taking preliminary objections that the suit is not
maintainable; the suit is bad for non joinder of parties; and no
notice, under Section 80 CPC, has been served upon the
defendant by the plaintiff, as such, the suit is liable to be
dismissed, on this score.
6.2. On merits, the factual position, as asserted, in
the plaint, has been contested, by pleading that the plaintiff has
not carried out the construction work after obtaining permission
from the defendant department. Defendant No.1, has started
construction work on the land bearing Khasra No.679/851/2/1,
for which, sanction was accorded, by the department, on
15.10.1998.
6.3. It is the further case of defendant No.2 that
during investigation, when it was found that defendant No.1 has
raised projections of RCC Slab over the set backs, notice, under
Section 38 of the Town and Country Planning Act, was issued,
however, the encroachment could not be ascertained, in the
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
6 2026:HHC:25426
absence of demarcation report, which is to be provided, by the
High Court of H.P.
revenue authorities.
6.4. According to defendant No.2, action has been
taken for the chhajja/projection on the set backs and ‘No
Objection Certificate’ for water connection has also not been
issued to defendant No.1, for encroachment on set backs, being
part of the suit land.
6.5. On the basis of the above facts, a prayer has
been made to dismiss the suit.
7. Plaintiff has filed replication, denying the
preliminary submissions, as well as, contents of the written
statement, by virtue of which, the suit has been contested and
reasserted that of the plaint.
8. From the pleadings of the parties, following
issues were framed, by the learned trial Court, vide order dated
27.05.2004:
1) Whether the defendant No.1 has encroached
upon the land of the plaintiff as alleged and has
also not left set back if so to what effect?
OPP
2) Whether the plaintiff is entitled to the relief of
Permanent Prohibitory Injunction and in the
alternative of Mandatory Injunction as prayed
for? OPD
3) Whether the suit is not maintainable in the
present form? OPD
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
7 2026:HHC:25426
4) Whether the suit is bad for non joinder of
High Court of H.P.
necessary parties as alleged? OPD
5) Whether the suit is bad for want of notice under
Section 80 of CPC as alleged? OPD
6) Relief.
9. Thereafter, parties to the lis were directed to
adduce evidence.
10. After closure of the evidence, the learned trial
Court, upon hearing learned counsel for the parties, has partly
decreed the suit, as referred to above.
11. Feeling aggrieved from the said judgment and
decree, the plaintiff has preferred the appeal, under Section 96
of the CPC, before the learned First Appellate Court. The
learned First Appellate Court, while dismissing the appeal, has
also dismissed the suit of the plaintiff.
12. Feeling aggrieved from the said judgment and
decree, the present appeal has been preferred, before this Court
which has been admitted on 19.05.2011, on the following
substantial questions of law:
1. Whether the learned lower appellate court has
erred in reversing the findings and relief of
permanent probability injunction in the appeal
of the appellant without there being any cross
appeal or crossobjections on the part of
respondent No.1?
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
8 2026:HHC:25426
2. Whether the learned lower appellate court has
erred in not granting mandatory injunction to
the appellant?
High Court of H.P.
SUBSTANTIAL QUESTION OF LAW No.1
13. Admittedly, in the present case, defendants have
not preferred the appeal, against the judgment and decree,
passed by the learned trial Court on 31.07.2006, by virtue of
which, the suit of the plaintiff was partly decreed, by granting
the relief of permanent prohibitory injunction, against defendant
No.1, restraining him from causing any kind of interference in
the suit land and the set back area.
14. Interestingly, the learned First Appellate Court,
while dismissing the appeal, has also set aside the relief of
permanent prohibitory injunction, which has been granted to
the plaintiff, by the learned trial Court. The relief, which has
not been assailed by defendant No.1, attains finality and in the
absence of any appeal/crossobjection, the said relief, cannot be
interfered with, by the learned First Appellate Court.
15. No doubt, the relief of mandatory injunction
has not been granted to the plaintiff, by the learned trial Court,
for which, he has filed the appeal, under Section 96 of the CPC,
before the learned First Appellate Court and the learned First
Appellate Court was in its full competence to decide the said
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
9 2026:HHC:25426
appeal, on the basis of the material available before it. However,
High Court of H.P.
the learned First Appellate Court has no power to dismiss the
suit, by setting aside the relief, which has been granted to him
by the learned trial Court, which has not even been assailed by
defendant No.1, who could be the best person to assail the
same, being aggrieved person.
16. The judgment and decree passed by the learned
trial Court, by virtue of which, the said relief has been granted
to the plaintiff, has not been assailed, by either of the
defendants, nor, have they bothered to file the crossobjections,
before the learned First Appellate Court. By filing first appeal,
the plaintiff has assailed the judgment of learned trial Court
only to the extent that the mandatory injunction has been
declined to him. In the absence of appeal/cross appeal, learned
First Appellate Court was not competent to tinker with the
judgment and decree of learned trial Court, by virtue of which,
the relief of Permanent Prohibitory Injunction was granted to the
plaintiff and which has attained finality, being not challenged by
the aggrieved party i.e. defendants.
17. In view of the above discussion, the substantial
question of law No.1, is decided in favour of the plaintiff.
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
10
2026:HHC:25426
SUBSTANTIAL QUESTION OF LAW NO.2:
High Court of H.P.
18. As per the arguments of the learned counsel for
the appellant/plaintiff, the learned trial Court has wrongly
declined the relief of mandatory injunction to him, whereas,
according to the learned counsel appearing for the appellant/
plaintiff, it has been proved on record that defendant No.1 has
encroached upon the set backs, left by the plaintiff.
19. The learned trial Court has declined the said
relief on the ground that the plaintiff has not offered any
explanation for not getting the demarcation of the suit land, as,
in order to grant the mandatory injunction, evidence should be
there to demonstrate as to how much area has been
encroached upon, by defendant No.1. In the absence of any
material on record, the relief of mandatory injunction, has
rightly been declined, by the learned trial Court. The
substantial question of law No.2, is answered accordingly.
CONCLUSION
20. In view of the above discussion, the judgment
and decree passed by the learned First Appellate Court, by
virtue of which, the suit of the plaintiff was ordered to be
dismissed, does not sustain, in the judicial scrutiny, by this
Court. Consequently, the appeal is partly allowed; the judgment
::: Downloaded on - 30/06/2026 15:01:50 :::CIS
11
2026:HHC:25426
and decree, passed by the learned First Appellate Court is set
High Court of H.P.
aside and the judgment and decree passed by the learned trial
Court is revived and upheld. Decree sheet be prepared
accordingly.
21. Pending application(s), if any, are also disposed
of.
Record be sent back.
(Virender Singh)
Judge
June 30, 2026 (ps)
::: Downloaded on - 30/06/2026 15:01:50 :::CIS