2026:HHC:12194

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 229/2024

Reserved on: 6.4.2026

Decided on: 17.04.2026

State of H.P. & anr. ..…Appellants

Versus

Inderjeet …..Respondent

Coram

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting ?

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For the appellants: Mr. Diwakar Dev Sharma, Addl. A.G.

For the respondent: Mr. Arun Kaushal, Advocate.

Romesh Verma, Judge

The present appeal arises out of the judgment and

decree, dated 6.11.2019, as passed by the learned District

Judge, Hamirpur, H.P. in C. A. No. 133/2017, whereby the

appeal preferred by the present appellants/defendants has

been partly allowed and the judgment and decree dated

1.9.2017, as passed by the learned Senior Civil Judge,

Hamirpur, H.P. in Civil Suit No. 184/2009, have been

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Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

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modified, decreeing the suit of the plaintiff for vacant

possession of the suit land comprised in Khewat No. 242,

Khatauni No. 250, Khasra No. 1088, previous Khasra No.

756 min, measuring 0-00-22 hectares and Khewat No.243,

Khatauni No. 251, Khasra No.1199, previous Khasra No.758,

measuring 0-07-27 hectares, situated in Village Hatli, Tehsil

Nadaun, District Hamirpur, H.P.

2 Brief facts of the case are that the

plaintiff/respondent filed a suit for possession under Section

6 of the Specific Relief Act. It was averred in the plaint that

the plaintiff is recorded as owner in possession of the suit

land. Though he is recorded as joint owner in possession of

the suit land along with other co-sharers, however he is an

absolute owner of the same by way of family arrangement.

The suit land has been utilized by the defendants/appellants

i.e. State of Himachal Pradesh, for construction of road,

namely “Dhanet Hamirpur via Kangoo Galore Road” and

nature of the suit land is being depicted in the revenue

record as “Gair Mumkin Sarak”. It was further averred that

neither the defendants/appellants acquired the suit land nor

they paid any compensation to the plaintiff/respondent.

When the protest was made by the plaintiff/respondent

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against the use and utilization of the suit land, the State

Government initiated acquisition proceedings and requisite

notifications were also issued. One of such notifications was

published in Danik Tribune on 6.3.2001, however the same

was allowed to lapse and was not taken to its logical end.

Though, the plaintiff/respondent was made to understand

that the acquisition process shall be finalized and adequate

compensation shall be paid to him, but nothing was done

qua the same, therefore, the plaintiff filed a suit for recovery

of vacant possession of the suit land.

3 The suit was contested by the

defendants/appellants by raising preliminary objections with

regard to maintainability, cause of action, locus standi, non-

joinder of necessary party, estoppel etc. On merits, it was

averred that the suit land was recorded as “Gair Mumkin

Sarak” and the defendants/appellants utilized the suit land

for the construction of “Dhanet Hamirpur via Kangoo Galore

Road”. The aforesaid road was constructed before 1980 and

the same was done with oral consent of the

plaintiff/respondent and other co-sharers. It was further

averred that it is not possible to acquire the suit land at

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such a belated stage that too after elapse of more than 30

years.

4 The plaintiff/respondent filed replication to the

written statement filed by the defendants and all the

averments as made in the plaint were reiterated.

5 On the pleadings of the parties, the learned trial

court on 18.11.2010 framed the following issues:-

1. Whether the plaintiff is entitled for the relief of

vacant possession, as claimed? OPP

2. Whether the suit is not maintainable, as alleged?

OPD

3. Whether the plaintiff has no cause of action to

file the present suit, as alleged? OPD

4. Whether the plaintiff has no locus standi to file

the present suit, as alleged? OPD

5. Whether the suit is bad for non-joinder and mis-

joinder of necessary parties, as alleged? OPD

6. Whether the plaintiff is estopped by his own act,

conduct and acquiescence, as alleged? OPD

7. Whether the road has been constructed with

the consent of plaintiff and other co-owners.

Hence, the plaintiff is not entitled for relief of

possession, as claimed? OPD

8. Relief.

6 The learned trial court directed the parties to

adduce evidence in support of their contentions to

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corroborate their respective case and ultimately, the learned

trial court vide its judgment and decree dated 1.9.2017

decreed the suit of the plaintiff/respondent directing the

defendants/appellants to complete the acquisition

proceedings and pay the compensation to the

plaintiff/respondent equal to his share in the suit land within

one year and in failure to do so, the plaintiff/respondent was

held entitled for vacant possession of the suit land and the

execution was ordered to be followed against the

defendants/appellants on their cost.

7 Feeling dissatisfied by the judgment and decree,

dated 1.9.2017, the defendants/appellants preferred an

appeal before the learned first Appellate Court on

16.10.2017, which came to be partly allowed vide judgment

and decree dated 6.11.2009, as aforesaid.

8 Still feeling aggrieved by the aforesaid judgments

and decrees, the defendants/appellants have preferred the

present regular second appeal.

9 It is contended by Mr. Diwakar Dev Sharma,

learned Additional Advocate General, appearing for the

appellants/State that the impugned judgments and decrees,

as passed by the learned Courts below, are erroneous and

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liable to be quashed and set aside. He has submitted that

since the respondent has given his oral consent for the

construction of the road in question, therefore, suit is liable

to be rejected. He has further submitted that the road in

question was constructed way back in the year 1980,

therefore, the suit filed by the plaintiff/respondent, is

hopelessly time barred and on this sole ground, suit ought to

have been rejected.

10 On the other hand, Mr. Arun Kaushal, learned

counsel appearing for the respondent, has defended the

judgments and decrees as passed by the learned courts below

and has submitted that since the land of the respondent was

utilized for the construction of the road in question,

therefore, in view of the mandate as laid down by the Hon’ble

Supreme Court, whereby it has been repeatedly held that no

person can be deprived of his property without following the

due process of law, the impugned judgments and decrees

deserve to be upheld. He has further submitted that once the

defendants/appellants have utilized the suit land, being

owned by the plaintiff/respondent, it was incumbent upon

the defendants/appellants either to have paid the

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compensation or to have handed over vacant possession of

the suit land.

11 I have heard the learned counsel for the parties

and have also gone through case file.

12 With consent of the parties, the instant appeal is

finally disposed of at the admission stage.

13 Admittedly, in the present case, the suit land

being owned by the plaintiff/respondent has been utilized by

the defendants/State for the construction of road i.e. “Dhanet

Hamirpur via Kangoo Galore Road”.

14 In order to substantiate his case, the

plaintiff/respondent has examined three witnesses including

himself and also tendered in evidence copy of Missal Hakiyat

Bandobast Jadid Sani, Ext. P-1, copy of Missal Hakiyat

Bandobast, Ext. P-II, Legal Notice Ext. PX, Postal Receipt Ext.

PY, copy of Tatima Ext. P-3, Missal Hakiyat Istemal Ext. P-IV

to Ext. P-VIII and notifications, Ext. PW3A, Ext. PW3/B and

Ext. PW3/C.

15 In order to controvert the case of the

plaintiff/respondent, the defendant has taken stand that

road in question was constructed by the State of Himachal

Pradesh on the oral and express consent of the

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plaintiff/respondent. It is averred that though the road was

constructed way back in the year 1980, therefore, the suit in

the present form is belated and the claim, as projected by the

plaintiff/respondent, is stale.

16 The defendants/appellants in order substantiate

their case examined two witnesses, namely, DW1 Shiv Kumar

and DW2 Joginder Pal.

17 DW1 Shiv Kumar deposed that neither any

person nor plaintiff or his co-sharers ever objected to

construction of the road in question.

18 DW2 Joginder Pal has also deposed that the road

in question was constructed with the consent of the people.

He also stated that the great grand-mother of the plaintiff,

namely, Udku Devi, had also not raised any objection. Even

when the road was being metalled, no person had objected.

19 Missal Hakiyat Bandobast Jadid Sani, Ext.P-1 for

the year 2003-04 reveals that the suit land is owned and

possessed by the plaintiff/respondent along with other co-

sharers. In the revenue record, the suit land is being depicted

as “Gair Mumkin Sarak”. The road in question is passing

through the suit land.

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20 It has been vehemently argued by the learned

Additional Advocate General that the plaintiff/respondent

has orally consented for the construction of the road in

question, however I find no force in the aforesaid submission

as admittedly, the defendants/appellants are not in

possession of any document to show that the

plaintiff/respondent had ever consented for construction of

road in question through the suit land.

21 It has come in the statement of PW1 Vipin Kumar

Kanungo that a notification, Ext. PW3/C was issued by the

State Government for acquiring the suit land. Though in his

cross-examination he stated that Khasra No.756 was not

mentioned in notification, Ext.PW3/C, however he clarified

that Khasra numbers were mentioned as per Jamabandi for

the year 1996-97.

22 As regards missal Hakiat for the year 1991-92,

Khasra No. 756 was having earlier Khasra No. 677 and

Khasra No. 1088 was having earlier Khasra No. 756. Perusal

of notification, Ext. PW3/C would go to show that Khasra

No. 756 has been mentioned therein meaning thereby the

notification had been issued qua acquisition of Khasra

No.756 i.e. suit land.

10

23 In case the plaintiff or any of his co-sharers had

ever consented for the construction of the road in question,

as is claimed by the defendants/appellants, then what was

the necessity to have issued notification, Ext. PW3/C for

acquisition of Khasra No.756, which is the suit land. Thus,

notification, Ext. PW3/C itself falsifies the unsubstantiated

stand qua consent taken by the defendants/appellants for

acquisition of the suit land for the construction of the road in

question.

24 The defendants/appellants are constituents of a

welfare State. It is well settled that the welfare State cannot

claim adverse possession against its citizens. Thus, the suit

on the basis of title cannot be said to be time barred, which

right could only be defeated by proof of perfection of title by

way of adverse possession by the other.

25 As observed above, the respondent/plaintiff is the

title holder of the suit property. Being owner of the suit

property, he may file a suit at any stage until and unless the

said right is defeated by the appellants/defendants by

perfection of title by way of adverse possession. Thus, the

plaintiff/respondent was well within his right to file a suit

for possession since the suit land was admittedly utilized by

11

the State for construction of the road in question without

adopting due process of law including the payment of

compensation.

26 The learned first Appellate Court below after

appreciating the oral as well as documentary evidence placed

on record and on the basis of the title decreed the suit as

filed by the respondent for vacant possession of the suit land,

which has been admittedly utilized by the

defendants/appellants for the construction of the road in

question.

27 The Hon’ble Supreme Court has repeatedly held

that no person can be deprived of his property without

adopting due process of law, therefore, under such

circumstances, the plea as set up by the appellants-State is

not tenable in the facts and circumstances of the case, once

they have utilized the land of the villagers without adopting

due process of law. Now the plea as raised by the present

appellants is not permissible that too at the stage of Regular

Second Appeal. There are concurrent findings of fact by the

learned Courts below.

28 In catena of judgments, it has been held by the

Hon’ble Supreme Court that the first appellate is the final

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court of the fact. No doubt, second appellate court exercising

the power under Section 100 CPC can interference with the

findings of fact on limited grounds such as - (a) where the

finding is based on inadmissible evidence; (b) where it is in

ignorance of the relevant admissible evidence; (c) where it is

based on misreading of evidence; (d) where it is perverse, but

that is not case in hand.

29 The Hon’ble Supreme Court while dealing with

scope of interference under Section 100 in Hero Vinoth

(minor) vs. Seshammal, (2006) 5 SCC 545 has held as

under:

“18. It has been noted time and again that without

insisting for the statement of such a substantial

question of law in the memorandum of appeal and

formulating the same at the time of admission, the High

Courts have been issuing notices and generally

deciding the second appeals without adhering to the

procedure prescribed under Section 100 of the CPC. It

has further been found in a number of cases that no

efforts are made to distinguish between a question of

law and a substantial question of law. In exercise of

the powers under this section in several cases, the

findings of fact of the first appellate court are found to

have been disturbed. It has to be kept in mind that the

right of appeal is neither a natural nor an inherent right

attached to the litigation. Being a substantive statutory

right, it has to be regulated in accordance with law in

13

force at the relevant time. The conditions mentioned in

the section must be strictly fulfilled before a second

appeal can be maintained and no court has the power

to add or to enlarge those grounds. The second appeal

cannot be decided on merely equitable grounds. The

concurrent findings of facts will not be disturbed by the

High Court in exercise of the powers under this section.

Further, a substantial question of law has to be

distinguished from a substantial question of fact. This

Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century

Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :

"The proper test for determining whether a question of

law raised in the case is substantial would, in our

opinion, be whether it is of general public importance or

whether it directly and substantially affects the rights

of the parties and if so whether it is either an open

question in the sense that it is not finally settled by this

Court or by the Privy Council or by the Federal Court or

is not free from difficulty or calls for discussion of

alternative views. If the question is settled by the

highest court or the general principles to be applied in

determining the question are well settled and there is a

mere question of applying those principles or that the

plea raised is palpably absurd the question would not

be a substantial question of law.

19. It is not within the domain of the High Court to

investigate the grounds on which the findings were

arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court

should not ordinarily reject witnesses accepted by the

trial court in respect of credibility but even where it has

rejected the witnesses accepted by the trial court, the

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same is no ground for interference in second appeal

when it is found that the appellate court has given

satisfactory reasons for doing so. In a case where from

a given set of circumstances two inferences of fact are

possible, one drawn by the lower appellate court will

not be interfered by the High Court in second appeal.

Adopting any other approach is not permissible. The

High Court will, however, interfere where it is found

that the conclusions drawn by the lower appellate court

were erroneous being contrary to the mandatory

provisions of law applicable or its settled position on

the basis of pronouncements made by the Apex Court,

or was based upon inadmissible evidence or arrived at

by ignoring material evidence.

20. to 22 xx xx xx xx

23. To be "substantial" a question of law must be

debatable, not previously settled by law of the land or

a binding precedent, and must have a material bearing

on the decision of the case, if answered either way,

insofar as the rights of the parties before it are

concerned. To be a question of law "involving in the

case" there must be first a foundation for it laid in the

pleadings and the question should emerge from the

sustainable findings of fact arrived at by court of facts

and it must be necessary to decide that question of law

for a just and proper decision of the case. An entirely

new point raised for the first time before the High Court

is not a question involved in the case unless it goes to

the root of the matter. It will, therefore, depend on the

facts and circumstance of each case whether a

question of law is a substantial one and involved in the

case, or not; the paramount overall consideration being

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the need for striking a judicious balance between the

indispensable obligation to do justice at all stages and

impelling necessity of avoiding prolongation in the life

of any lis.”

30 The Hon’ble Supreme Court in Annamalai vs.

Vasanthi, 2025 INSC 1267, has held as follows:-

“16. Whether D-1 and D-2 were able to discharge the

aforesaid burden is a question of fact which had to be

determined by a court of fact after appreciating the evidence

available on record. Under CPC, a first appellate court is the

final court of fact. No doubt, a second appellate court

exercising power(s) under Section 100 CPC can interfere with

a finding of fact on limited grounds, such as, (a) where the

finding is based on inadmissible evidence; (b) where it is in

ignorance of relevant admissible evidence; (c) where it is

based on misreading of evidence; and (d) where it is perverse.

But that is not the case here.

17. In the case on hand, the first appellate court, in paragraph

29 of its judgment, accepted the endorsement (Exb. A-2) made

on the back of a registered document (Exb. A-1) after

considering the oral evidence led by the plaintiff-appellant and

the circumstance that signature(s)/thumbmark of D-1 and D-2

were not disputed, though claimed as one obtained on a blank

paper. The reasoning of the first appellate court in paragraph

29 of its judgment was not addressed by the High Court. In

fact, the High Court, in one line, on a flimsy defense of use of a

signed blank paper, observed that genuineness of Exb. A-2 is

not proved. In our view, the High Court fell in error here. While

exercising powers under Section 100 CPC, it ought not to have

interfered with the finding of fact returned by the first

appellate court on this aspect; more so, when the first

appellate court had drawn its conclusion after appreciating the

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evidence available on record as also the circumstance that

signature(s)/thumbmark(s) appearing on the document (Exb.A-

2) were not disputed. Otherwise also, while disturbing the

finding of the first appellate court, the High Court did not hold

that the finding returned by the first appellate court is based

on a misreading of evidence, or is in ignorance of relevant

evidence, or is perverse. Thus, there existed no occasion for

the High Court, exercising power under Section 100 CPC, to

interfere with the finding of the first appellate court regarding

payment of additional Rs. 1,95,000 to D-1 and D-2 over and

above the sale consideration fixed for the transaction.

18. Once the finding regarding payment of additional sum of

Rs.1,95,000 to D-1 and D-2 recorded by the first appellate

court is sustained, there appears no logical reason to hold that

the plaintiff (Annamalai) was not ready and willing to perform

its part under the contract particularly when Rs. 4,70,000, out

of total consideration of Rs. 4,80,000, was already paid and,

over and above that, additional sum of Rs.1,95,000 was paid

in lieu of demand made by D-1 & D-2. This we say so,

because an opinion regarding plaintiff’s readiness and

willingness to perform its part under the contract is to be

formed on the entirety of proven facts and circumstances of a

case including conduct of the parties. The test is that the

person claiming performance must satisfy conscience of the

court that he has treated the contract subsisting with

preparedness to fulfil his obligation and accept performance

when the time for performance arrives.”

31 No other point was urged by the learned counsel

for the defendants/appellants.

32 The learned first Appellate Court have rightly

appreciated the point in controversy vide the impugned

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judgment, whereby it decreed the suit of the

plaintiff/respondent for vacant possession of the suit land,

after considering the oral as well as documentary evidence

placed on record. No question of law much less substantial

question of law arises in the instant appeal.

33 In view of aforesaid discussions and for the reasons

stated here-in-above, the present appeal being devoid of

any merit deserves to be dismissed. Ordered accordingly.

Pending application(s), if any, also stands disposed of.

17

th April, 2026 (Romesh Verma)

(pankaj) Judge