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HIMACHAL PRADESH HIGH COURT
SINGLE BENCH

SH. BRAHMA NAND — Appellant

Vs.

SH. BHRIGU NAND — Respondent

( Before : Sandeep Sharma, J. )
Regular Second Appeal No. 29 of 2008
Decided on : 31-08-2022

Civil Procedure Code, 1908 (CPC) - Order 26 Rule 9

Counsel for Appearing Parties

Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for the Appellant; Mr. Arvind
Sharma, Advocate, for the Respondent.
Cases Referred

Ahmed All vs. Shaik Ahmed, AIR 1955 Hyderabad 268

Ambor Ali vs. Nichar Ali, AIR 1950 Assam 79
Fomento Resorts and Hotels Ltd. vs. Gustavo Ranato da Cruz Pinto, AIR 1985 SC
736
Om Prakash and Ors vs. State of Himachal Pradesh and Ors, AIR 2001 Himachal
Pradesh 18
Ram Ranbijaya Prasad Singh vs. Sukar Ahir, AIR 1947 Pat 334 (SB)
Swaminathan Ambalam vs. P.K., Nagaraja Piliai. AIR 1973 Madras 110
JUDGMENT

1. Instant regular second appeal filed under Section 100 of the CPC, lays challenge to the
judgment and decree dated 13.12.2007, passed by the learned Additional District Judge,
Shimla, camp at Rohroo in CA No. 10-R/13 of 2005, reversing the judgment and decree
dated 30.3.2005, passed by the learned Civil Judge ( Sr. Div.), Court No.1, Rohroo, District
Shimla, in CS No. 223/1 of 2003, whereby suit for permanent prohibitory injunction and
mandatory injunction having been filed by the appellant/plaintiff came to be decreed.

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2. Briefly stated facts of the case as emerge from the record are that plaintiff filed a suit for
permanent prohibitory injunction against the defendant averring in the plaint that parties to
the lis were previously having one common ancestor late Sh. Angi Ram, who had four sons
namely Jagat Ram, Chanan Dev, Mohan Dev and Kedar Nand. Plaintiff averred that Angi
Ram and his sons are now no more and parties to the suit are the legal heirs to the aforesaid
persons namely Jagat Ram and Kedar Nand. Plaintiff alleged that land comprised in Khata
Khatauni No. 139/335 min, khasra No. 1568, measuring 0-00-76 hectares situate in Chak
Arhal though has been shown to be owned by the different co-sharers, but in the column of
cultivation the gair mumkin house has been shown to be in the exclusive possession of the
plaintiff as same fell in the share of late Sh. Jagat Ram, father of the plaintiff in the family
partition took place inter-se predecessor-in-interest of the parties way back in December,
2008. Plaintiff claimed that he is coming in peaceful possession of the said house
constructed over the suit land. Plaintiff also averred that land bearing khasra No. 1568/2
has been shown to be Makan and Kuthar. Similarly, over land bearing khasra No. 1585/5
disputed Kuthar of the plaintiff has been shown by the Patwari in tatima issued on
25.9.2000. He alleged that right from December, 2008, the Kuthar is shown in the peaceful
possession of the late Shri Jagat Ram and thereafter, he is in the possession of the same.
Similarly, plaintiff alleged that land bearing khasra No. 1585/3 shown as disputed abadi
has been kept joint between the parties towards land bearing Khasra No. 1568 and
remaining khasra No. 1585/3 was kept joint of all the four brothers being common ukhal
land common abadi, which is jointly being used by the parties to the suit and as such,
defendant has no right to change the nature of the land. Plaintiff further claimed that land
bearing khasra No. 1585/1 is in exclusive possession of the plaintiff in the shape of gair
mumkin courtyard and as such, defendant has no right title and interest over the piece of
land. Plaintiff claimed that in the year, 2000, defendant tried to interfere in the suit land
and as such, he was compelled to file civil suit, which ultimately ended in compromise and
case was withdrawn by the plaintiff after recording the statements of the parties. He alleged
that defendant once again for the last 15 days in his absence has started the construction of
the land bearing khasra No. 1585.
3. Case of the plaintiff came to be resisted by the defendant, who in the written statement
alleged that khasra No. 1568 is owned by about 35 persons and share of the plaintiff out of
area 0-00-76 comes out to be negligible. Defendant denied that disputed Kuthar is in
existence on the Khasra No. 1558/5. He further alleged that tatima issued by the Patwari
dated 29.11.2003 clearly reveals that Kuthar has been shown in Kharsa No. 1558/8. He
alleged that compromise deed dated 2.11.2000 is being complied with in its letter and spirit
by him and he has not deviated from the same in any manner. He further alleged that half
portion of the wooden structure kuthar of the plaintiff is standing in the share of the
defendant and as per compromise dated 2.11.2000 kuthar is in existence on the spot,
however, he reserves his right to take balance portion of the share of the kuthar if the
exigency so arises. While stating that he never changed the nature of the suit land,
defendant also claimed that he constructed new house in khasra No. 1585/2 adjacent to
house in khasra No. 1585/9 and the construction has been carried out by the defendant
inside the stone wall of bara and ukhal, khural and some vacant portion has been kept
vacant as per the terms of compromise for the use of villagers. He also claimed that
remaining portion of the wall of bara shown as khasra No. 1585/4 belongs to the
defendant. He denied that kuthar and gair mumkin sehan remained in exclusive possession

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of the plaintiff. He also denied that he has raised roofing of GE sheets over the land
comprised in khasra No. 1585/6 and there is ukhal mustrika as has been shown in spot
tatima issued by halqua patwari on the spot.
4. On the basis of aforesaid pleadings adduced on record by the respective parties, learned
trial court framed following issues:
'1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction
as prayed ? OPP.
2. Whether the land bearing khasra No. 1568 fell in family partition in the share of the
plaintiff and it is exclusive possession since samvat, 2008, as alleged? OPP.
3. Whether the land khasra No. 1585/3 having ukhal/khural over it was kept joint as
alleged? OPP.
4. Whether the land khasra No. 1585/1 is in exclusive possession of the plaintiff?
OPP.
5. Whether the defendant has retracted from the statement dated 2-11-2000, if so its
effect?OPP
6. Whether the plaintiff is entitled for the relief of mandatory injunction? OPP.
7. Whether the suit is not maintainable?OPD
8. Whether the plaintiff is stopped from filing the suit on account of his acts, deeds
and conducts? OPD
9. Whether the suit is hit by the principle of resjudicata? OPD.
10. Relief.'
5. Subsequently, on the basis of pleadings as well as evidence led on record by the
respective parties, learned trial Court, vide judgment dated 30.3.2005 decreed the suit of
the plaintiff and passed decree of permanent prohibitory injunction in favour of the
plaintiff and against the defendant. Court below also passed decree for mandatory
injunction against the defendant to remove the roofing over the land comprising khata
Khatauni No. 203/500 min khasra No. 1586/6 .
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the
learned trial Court, respondent/defendant filed an appeal in the court of learned Additional
District Judge, Shimla, which came to be allowed vide judgment dated 13.12.2007 as a
consequence of which, judgment and decree passed by the learned trial court came to be
quashed and set-aside. In the aforesaid background, appellant/plaintiff has approached this
Court in the instant proceedings, praying therein to set-aside the impugned judgment and
decree passed by the learned first appellate court.
7. Vide order dated 28.2.2008, instant appeal came to be admitted on the following
substantial questions of law:

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'1. Whether the findings of reversal recorded by the learned Additional District Judge
are vitiated on account of misreading and mis-appreciation of the pleadings of the
parties as well as oral and documentary evidence on record.
2. Whether the appellant having proved on record the violation of the terms and
conditions of the Compromise, Ex. PW-1/A and statements of the parties, Ex.PW-1/B,
at the time of passing of order Ex.PW-1/A, dated 17.12.2004, therefore, the findings
of the learned trial court could not have been reversed.
3. Whether the learned Lower Appellate Court having observed that issues No.l to 4
and 6 could not have been clubbed because those were not interconnected, therefore,
the case was required to be remanded back.
4. Whether the points for determination as involved in issues, as framed by the
learned trial court, that is, issues No. 1 to 9 were required to be kept into
consideration, while reversing the decree of the learned trial court and since this has
not been done, therefore, there has been failure to exercise the jurisdiction in
accordance with law.
5. Whether the Tatimas Ex.PW-2/A and Ex. PW-2/B proved by the appellant on
record by producing PW-2, Halqua Patwari, therefore, these documents have been
misread and misconstrued and third Tatima, Ex.DX brought on record by the
respondent was also required to be considered and discussed.
6. Whether the Tatimas, Ex. PW-2/A and EX. PW-2/B have been disbelieved by the
learned Additional District Judge, therefore, in view of the controversy as involved
about the extension of eaves and roof by the respondent, therefore, in order to do the
substantial and complete justice, provisions of Order 26 Rule 9 C.P.C. should have
been invoked, interalia to find out as to whether the compromise order, Ex. PW-1/A
and Ex. PW-1/B have been complied with or not.
7. Whether the learned Lower Appellate Court has failed to exercise the jurisdiction in
accordance with law by ignoring the grounds which weighed with the learned trial
court for passing a decree and thus the findings recorded by him are liable to be set-
aside.'
8. I have heard the learned counsel for the parties and perused the entire record.
9. Having heard learned counsel for the parties and perused the material available on
record vis-a-vis reasoning assigned by the learned first appellate Court while passing
impugned judgment dated 13.12.2007, thereby setting aside judgment and decree dated
30.3.2005 passed by the learned Civil Judge Rohroo, this Court sees no reason/occasion to
explore/ascertain the answers to the aforesaid substantial questions of law framed by this
Court at the time of admission of the appeal because bare perusal of the judgment passed
by the learned first appellate court itself reveals that learned trial court while decreeing the
suit of the plaintiff failed to return separate findings with the reasons on each issue.
Moreover, judgment passed by the learned first Appellate Court further reveals that there
were three tatimas on record to show encroachment, if any, on the land of the plaintiff and
these tatimas were actually prepared by one person at the instance of the court i.e. learned
Sub-Judge, Rohroo in the present and previous suit. Apart from above, learned first
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Appellate Court has arrived at a conclusion that learned trial court though reproduced the
evidence, but failed to assign any reason in support of its findings, on the basis of which,
suit having been filed by the plaintiff came to be decreed. It would be apt to take note of
para 13 of the judgment passed by the learned first appellate Court:
'13. The judgment and decree passed by the court below deserves to be set aside on
the short ground that issue Nos. 1 to 4 and 6 all have been discussed together. This
has created a confusion. The learned court below simply reproduced all the evidence,
produced by the parties, but did not discuss by assigning reason why and which
portion of the statement, the court believed and judgment does not clearly depict as to
which of them was really acceptable and for what reasons.'
10. Having carefully perused aforesaid finding returned by the learned first Appellate
Court, this Court finds substantial force in the submissions made by Mr. G.D. Verma,
learned Senior counsel appearing for the appellant that once learned first Appellate Court
had arrived at a definite conclusion that all the issues No. 1 to 4 and 6 have been discussed
together and no separate finding has been recorded by the learned trial court qua each
issue, it ought to have remanded the case back to the learned trial court with direction to
return finding on each and every issue. Bare perusal of the aforesaid para itself suggests
that on account of clubbing of issues No. 1 to 4 and 6, confusion arose in the mind of the
learned first Appellate Court. It also emerges from the judgment passed by the learned first
Appellate Court that there were two tatimas Ext.PW2/A and Ex.PW2/B placed on record
by the plaintiff to prove his case with regard to encroachment over his land allegedly made
by the defendant. Apart from above, third tatima Ext.DX was placed on record by the
defendant. Interestingly, all these three tatimas were prepared by one Patwari though on
different dates but on the directions passed by the learned Civil Judge, Rohroo, however
learned first Appellate Court while reversing the decree of trial court was unable to
decipher that on which tatima, learned trial court placed reliance while decreeing the suit
of the plaintiff.
11. By now it is well settled that all the issues framed on the basis of pleadings are to be
decided separately that too by issuing cogent and convincing reasoning. Though this Court
finds substance in the findings returned by the learned first Appellate Court that on account
of clubbing of issues and non-assignment of reasons by the learned trial court while
deciding such issues, much confusion has arisen, but in that situation, there was no scope
left for the learned first Appellate Court to reverse the judgment and decree passed by the
learned trial court, rather best approach would have been to remand the case back to the
learned trial court with direction to decide the same afresh. Reliance is placed on judgment
passed by this Court in Om Prakash and Ors v. State of Himachal Pradesh and Ors,
AIR 2001 Himachal Pradesh 18, wherein it has been held as under:
'12. In the present case, trial Court has framed all the issues and was supposed to give
separate findings on each issue, as admittedly the findings upon any one or more of
them are not sufficient for the decision of the suit. By simply enumerating the
evidence and law and thereafter giving conclusion whereby the case of one party is
accepted and the other party is rejected, is no judgment in the eyes of law. In other
words, the judgment which does not contain the reasons or grounds on the basis of

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which the Judge has come to his conclusion/decision for passing a Judgment and
decree on the points in issue or controversy, is vitiated.
It is all the more necessary, when the judgment is by the Court of fact and is
appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court
in Fomento Resorts and Hotels Ltd. v. Gustavo Ranato da Cruz Pinto, AIR 1985
SC 736, has held in paragraph 27 as under :
"In a matter of this nature where several contentions factual and legal are urged and
when there is a scope of an appeal from the decision of the Court, it is desirable as
was observed by the Privy Council long time ago to avoid delay and protraction of
litigation that the Court should, when dealing with any matter dispose of all the points
and not merely rest its decision on one single point."
(Also see Ram Ranbijaya Prasad Singh v. Sukar Ahir, AIR 1947 Pat 334 (SB);
Ambor Ali v. Nichar Ali, AIR 1950 Assam 79; Ahmed All v. Shaik Ahmed, AIR
1955 Hyderabad 268 and Swaminathan Ambalam v. P.K., Nagaraja Piliai. AIR
1973 Madras 110). There-' fore, by not deciding issues Nos. J to 5 separately by
referring to material evidence on each issue for and against the parties and giving
reasons for its acceptance or rejection, the impugned judgment is vitiated.'
12. There is another aspect of the matter that once three tatimas prepared by one Patwari
that too on the direction of the learned trial court were on record and yet question with
regard to encroachment, if any, made by the defendant over the land of the plaintiff could
not be decided on the same, learned trial court while exercising power under Order 26 Rule
9 CPC ought to have appointed Local Commissioner to ascertain the factual position on the
spot. Though at this stage, Mr. Arvind Sharma, learned counsel for the defendant
vehemently argued that application, if any, under Order 26 Rule 9 CPC was to be filed by
the plaintiff, but having carefully perused provisions contained under order 26 Rule 9 CPC,
this Court is of the view that power under this provision is to be exercised by the court,
especially when it deems it necessary for proper adjudication of the dispute for the purpose
of elucidating any matter in dispute or of ascertaining the market-value of any property, or
the amount of any mesne profits or damages or annual net profits. Since in the case at
hand, there were three different tatimas prepared by the revenue authority depicting
different picture in all tatimas, court should have exercised power vested in it under Order
26 Rule 9 CPC to appoint Local Commissioner, who after visiting the spot may have given
the correct report to the court enabling it to do the substantial justice.
13. Though having taken note of the fact that in the instant proceedings, challenge has been
laid to judgment passed by the learned first Appellate Court, this court ought to have
remanded the case back to the learned first Appellate Court, but since this court has already
formed an opinion that learned District Judge for the reasons stated in para-13 of the
impugned judgment ought to have remanded the case back to the learned trial court, this
court with a view to avoid further delay in proceedings deems it fit to remand the case back
to the learned trial court with direction to decide the same afresh on the basis of evidence
already available on record. However, learned trial court, if finds it necessary, may exercise
power under Order 26 Rule 9 CPC to ascertain correct position on the spot.

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14. Consequently, in view of the above, present appeal is allowed and judgments and
decrees dated 30.3.2005 and 13.12.2007 passed by the courts below are quashed and set-
aside and matter is remanded back to the learned trial court with direction to decide the
same afresh in terms of observations made herein above. Since matter is hanging fire for
more than 20 years, this Court hopes and trusts that learned trial court would conclude the
same expeditiously. Parties are directed to remain present before the learned trial court on
7.9.2022, enabling it to do the needful. In the aforesaid terms, present appeal is disposed of
alongwith pending applications, if any.

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