Failure To Obtain Demarcation To Ascertain Location Of Boundary Wall Fatal To Injunction Suit, Adverse Inference Must Be Drawn: Himachal Pradesh High Court

"If plaintiffs believed the boundary wall was on their land, they should have obtained demarcation to prove it, and failure to do so warrants adverse inference", The Himachal Pradesh High Court has dismissed a Regular Second Appeal and upheld the concurrent findings of the Courts below, holding that the plaintiffs who claimed ownership of a boundary wall but failed to obtain demarcation to establish its precise location cannot succeed in a suit for permanent prohibitory injunction.

Justice Romesh Verma observed that the scope of interference by High Courts while exercising power under Section 100 of the Code of Civil Procedure is very limited and courts cannot interfere with concurrent findings of fact unless they are perverse or without any evidence.

Background of the Case

The plaintiffs Ramesh Kalia and Jitender Kalia filed a civil suit for permanent prohibitory injunction claiming to be joint owners in possession of land at Mauza Chamba Town. They alleged that an old boundary wall belonging to them existed over Khasra Nos. 1958, 1959 and 1960, within which they and other co-sharers had constructed their houses about 15-16 years ago. They further alleged that the defendant Mohammad Hameed, who owned the adjoining Khasra No. 1954, started excavating land beneath their boundary wall on 2nd July 2010, thereby endangering the same.

The Trial Court dismissed the suit vide judgment dated 14th May 2018. The First Appellate Court (District Judge, Chamba) confirmed the dismissal vide judgment dated 1st October 2018. The plaintiffs thereafter approached the High Court by way of Regular Second Appeal under Section 100 CPC.

Legal Issues

The appeal was admitted on the substantial questions of law as to whether findings returned by the Courts below were perverse and contrary to facts and law, and whether evidence beyond the pleadings could be considered for deciding the controversy.

Court's Observations and Judgment

"In his cross-examination, PW-1 has admitted that in order to identify the boundary wall, no demarcation was carried out over the suit land. He admitted that he did not apply for the appointment of Local Commissioner"

The Court noted that while plaintiff Jitender Kalia (PW-1) claimed in his examination-in-chief that the boundary wall existed over Khasra Nos. 1958, 1959 and 1960, he admitted in cross-examination that no demarcation was obtained to ascertain the location of the boundary wall. Significantly, the corroborating witness Sanjay Kumar (PW-2) admitted that he did not know over which khasra number the boundary wall had been erected.

"Neither oral nor documentary evidence has been placed on record and the most important fact is that the ascertainment of the boundary wall has not been got done by taking the demarcation which could have clinched the controversy in question"

The Court observed that the defendant placed on record an agreement dated 26th October 1998 executed between plaintiff Jitender Kalia and defendant Mohammad Hameed, which showed that the plaintiff had installed glaze/window of his house towards the defendant's wall and had given an undertaking that he would not object if the glaze is closed due to construction of the wall. This agreement was admitted by marginal witnesses DW-5 Anand Sagar and DW-6 Vijay Kumar.

"Perusal of agreement shows that it is stipulated that Jitender Kalia-plaintiff had started the construction work of his house and he has installed glaze/window towards the wall of the defendant and an undertaking was given by the plaintiff that in future, if the glaze of the plaintiff is closed, then, he will not raise any objection"

The Court further noted that a prior decree dated 30th April 2014 had been passed by the Civil Judge (Senior Division), Chamba in favour of the present defendant, restraining the present plaintiffs from discharging dirty and filthy water towards the defendant's property.

"There is no material on record to establish that the defendant tried to dig the earth from beneath the old boundary wall thereby causing danger to the house of the plaintiff. Neither any oral nor any documentary evidence has been placed on record to substantiate the said contention"

Relying upon a catena of Supreme Court judgments including Navaneethammal v. Arjuna Chetty, Kshitish Chandra Purkait v. Santosh Kumar Purkait, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, Naresh v. Hemant, and Brij Narayan Shukla v. Sudesh Kumar, the Court reiterated the settled legal position on the limited scope of second appeals.

"The High Court cannot substitute its opinion for the opinion of the first appellate Court unless 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 without evidence"

The Court held that both the substantial questions of law were answered against the appellants, as the concurrent findings returned by the Courts below were legal, valid and sustainable, warranting no interference.

The Himachal Pradesh High Court dismissed the Regular Second Appeal, affirming the concurrent judgments and decrees of the Courts below which had dismissed the plaintiffs' suit for permanent prohibitory injunction.

Date of Decision: 2nd March, 2026