The Pr. Secy. Revenue To The Govt. Of H.P. … vs Budhu on 13 March, 2026

Himachal Pradesh High Court

The Pr. Secy. Revenue To The Govt. Of H.P. … vs Budhu on 13 March, 2026

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                              RSA No. 56 of 2026
                              Date of decision: 13.03.2026.




                                                               .
    The Pr. Secy. Revenue to the Govt. of H.P. & others





                                                               ...Appellants.
                              Versus





    Budhu                                                     ...Respondent.

    Coram:




                                       of
    The Hon'ble Mr. Justice Romesh Verma, Judge.

    Whether approved for reporting?1
    For the appellants       :      Mr.    Diwakar     Dev    Sharma,
                   rt               Additional Advocate General.

    For the respondent       :      Mr. Malay Kaushal, Advocate.

    Romesh Verma, Judge (Oral):

The present appeal arises out of the judgment and

decree, dated 15.01.2025 as passed by the learned District

Judge, Bilaspur, H.P. in Civil Appeal No. 29/13 of 2023,

whereby the appeal preferred by the present

appellants/defendants has been ordered to be dismissed and

the judgment and decree dated 31.03.2023, as passed by the

learned Senior Civil Judge, Bilaspur, H.P. in Civil Suit No. 72/1

of 2015, titled as Budhu vs. The Principal Secretary, Revenue &

others, have been affirmed, whereby the suit filed by the

1
Whether reporters of Local Papers may be allowed to see the
judgment?

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plaintiff/respondent for declaration and mandatory injunction

was decreed.

2. Brief facts of the case are that the

.

plaintiff/respondent filed a suit for declaration and mandatory

injunction in the Court of learned Senior Civil Judge, Bilaspur,

on 27.05.2015 on the ground that the land comprised in

of
Khata/Khatoni No. 2, Khasra No. 102, 103, measuring 3-0

bighas, situated at Village Tramari, Pargna Rattanpur, Tehsil
rt
Sadar, District Bilaspur, H.P. is owned and possessed by the

plaintiff. In the year 1980, the defendants had constructed

Deoth-Lag Ghat Jamli link road and for that purpose, the land

owned and possessed by the plaintiff was utilized. The officials

of the defendants assured the plaintiff to compensate him for

utilization of his land, however no steps were taken by him.

Further, it has been averred in the plaint that the lands of

Surjan Ram and Chet Ram were also acquired and utilized by

the defendants for construction of the road in question in the

year 1987 vide Award No. 1/87. When the plaintiff approached

the defendants for the grant of compensation, no steps were

taken by them for the reasons best known to them. Though,

assurance was given to the plaintiff to compensate him, but till

date, no compensation amount has been paid, therefore, the

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plaintiff was constrained to file a suit for declaration to the

effect that he is the owners in possession of the suit land and

for mandatory injunction that since the defendants have

.

utilized the suit land, therefore, the plaintiff sought vacant

possession of the suit land.

3. The suit was contested by the defendants/State by

of
raising preliminary objections qua maintainability, locus standi,

estoppel etc. On merits, it was averred that the
rt
defendants/appellants had constructed the road in question

with the consent of the plaintiff in the year 1980 and the

defendants had not given any assurance to the plaintiff to pay

the compensation for the suit land. Lands of Surjan Ram and

Chet Ram were acquired during the construction of the road in

question and other portion of the road was constructed with the

consent of the plaintiff. At the time of construction of the road,

the plaintiff never raised any objection and now he cannot be

permitted to raise objection that too after elapse of more than

35 years of the construction of road and consequently, the

defendants sought dismissal of the suit.

4. On the pleadings of the parties, the learned trial

court framed the following issues:-

“1. Whether the plaintiff is entitled for the relief of
declaration to the effect that plaintiff is recorded

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owner in possession qua the suit land, as prayed
for ? OPP

2. Whether the plaintiff is entitled for the relief of
mandatory injunction, as prayed ? OPP

.

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

OPD

4. Whether the plaintiff has not come to the Court
with clean hands, as alleged ? OPD

of

5. Whether the suit is barred by limitation, as
alleged? OPD

6.rt Whether the plaintiff is estopped from filing the
present suit by his own act and conducts, as
alleged ? OPD

7. Whether the plaintiff has no locus standi to file
the present suit, as alleged ? OPD

8.. Relief.”

5. The learned trial court directed the respective

parties to adduce evidence in support of their contentions to

corroborate their respective case and ultimately, the learned

trial court vide its judgment and decree dated 31.03.2023

decreed the suit of the plaintiff/respondent and it was held that

the plaintiff is owner in possession of the suit land comprised in

Khata/Khatoni No. 2, Khasra No. 102, 103, measuring 3-0

bighas, situated at Village Tramari, Pargna Rattanpur, Tehsil

Sadar, District Bilaspur, H.P. and is entitled for compensation

from the defendants for the suit land utilized by the

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defendants/State for the construction of the road in question in

the same manner as the lands of Surjan and Chet Ram were

acquired for the same road and ultimately, the defendants were

.

ordered to acquire the suit land and compensate the plaintiff.

6. Feeling dissatisfied by the judgment and decree,

dated 01.01.201, the defendants/State preferred an appeal

of
before the learned first Appellate Court, which came to be

dismissed vide judgment and decree dated 27.12.2023.

7.
rt
Still feeling aggrieved by the aforesaid judgments

and decrees, the appellants/State have preferred the present

regular second appeal.

8. It is contended by Mr. Diwakar Dev Sharma, learned

Additional Advocate General appearing for the appellants/State

that the learned courts below have not appreciated the real

point of controversy inter-se the parties and the impugned

judgments and decrees passed by the learned courts below are

perverse and thus, liable to be quashed and set aside. He has

further contended that the learned Courts below have not

appreciated oral as well as documentary evidence, therefore, on

that count, the instant appeal deserves to be allowed.

9. On the other hand, Mr. Malay Kaushal, learned

counsel for the respondents has defended the judgments and

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decrees as passed by the learned courts below and has

submitted that since the land of the respondents 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

of
law, therefore, the impugned judgments and decrees deserve to

be upheld.

10.
rt
I have heard the learned counsel for the parties and

have also gone through the material available on the case file.

11. With the consent of the parties, the case is finally

heard at admission stage.

12. It is admitted fact that the land of the plaintiff

/respondent has been utilized by the defendants/State for the

construction of road i.e. Deoth-Lag Ghat-Jamli link road.

13. The Court of the first instance as also the First

Appellate Court have concurrently held that the land of the

plaintiff/respondent was utilized for construction of Deoth-Lag

Ghat-Jamli link road without payment of compensation to

them. No dispute has been raised as to such findings of fact. It

has only been contended on behalf of the defendants/State that

the suit was filed by the plaintiffs after almost 35 years and the

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same was time barred. In alternative, it was contended that

since the plaintiff/respondent remained silent for such a long

period, he was estopped from raising the stale claim. Principle

.

of acquiescence has also been sought to be applied against the

plaintiff/respondent on the premise that the plaintiff/

respondent was aware about the construction of road and the

of
road was constructed with their implied consent and now he

cannot, turn around to raise objections against the
rt
construction of road.

14. 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.

15. Admittedly, 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 present appellants/ defendants by perfection of

title by way of adverse possession.

16. Being the owner of the suit land, the

plaintiff/respondent was well within their right to file a suit for

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injunction and mandatory injunction since the suit land was

utilized by the State for construction of the road in question

without adopting due process of law including the payment of

.

amount of compensation.

17. Admittedly, the defendants/appellants were not in

possession of any document to show that the plaintiff had

of
consented for construction of road through the suit land.

18. The Hon’ble Apex Court in Vidya Devi vs. State of

Himachal Pradesh & others (2020) 2 SCC 569 has held that
rt
no person can be forcibly dispossess of his property without

any legal sanction and without following the due process of law

and depriving her payment of just and fair compensation. The

State being a welfare State governed by the rule of law cannot

arrogate to itself a status beyond what is provided by the

Constitution. The Court has held as follows:

“12. We have heard learned Counsel for the parties and

perused the record. 12.1. The Appellant was forcibly
expropriated of her property in 1967, when the right to
property was a fundamental right guaranteed by Article
31 in Part III of the Constitution. Vidaya Devi vs The State
Of Himachal Pradesh on 8 January, 2020 Article 31
guaranteed the right to private property 1, which could not
be deprived without due process of law and upon just and
fair compensation.

12.2. The right to property ceased to be a fundamental
right by the Constitution (Forty Fourth Amendment) Act,

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1978, however, it continued to be a human right 2 in a
welfare State, and a Constitutional right under Article 300
A of the Constitution. Article 300 A provides that no
person shall be deprived of his property save by authority

.

of law. The State cannot dispossess a citizen of his
property except in accordance with the procedure
established by law. The obligation to pay compensation,

though not expressly included in Article 300 A, can be
inferred in that Article The State of West Bengal v. Subodh

of
Gopal Bose and Ors. AIR 1954 SC 92. 2 Tukaram Kana
Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.
12.3. To forcibly dispossess a person of his private
rt
property, without following due process of law, would be
violative of a human right, as also the constitutional right

under Article 300 A of the Constitution. Reliance is placed
on the judgment in Hindustan Petroleum Corporation Ltd.
v. Darius Shapur Chenai4, wherein this Court held that:

” 6. … Having regard to the provisions contained in
Article 300A of the Constitution, the State in

exercise of its power of “eminent domain” may
interfere with the right of property of a person by

acquiring the same but the same must be for a
public purpose and reasonable compensation

therefor must be paid.” (emphasis supplied)
12.4 In N. Padmamma v. S. Ramakrishna Reddy5, this
Court held that:

“21. If the right of property is a human right as also
a constitutional right, the same cannot be taken
away except in accordance with law. Article 300A
of the Constitution protects such right. The
provisions of the Act seeking to divest such right,
keeping in view of the provisions of Article 300A of

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the Constitution of India, must be strictly
construed.” (emphasis supplied) 4 (2005) 7 SCC

627.
12.5 In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of

.

U.P. & Ors., this Court recognized the right to property as
a basic human right in the following words:

“30. It is accepted in every jurisprudence and by

different political thinkers that some amount of
property right is an indispensable safeguard

of
against tyranny and economic oppression of the
Government. Jefferson was of the view that liberty
rt cannot long subsist without the support of property.
“Property must be secured, else liberty cannot subsist”

was the opinion of John Adams. Indeed the view that

property itself is the seed bed which must be conserved if
other constitutional values are to flourish is the consensus
among political thinkers and jurists.” (emphasis supplied)

12.6 In Jilubhai Nanbhai Khachar v. State of Gujarat,7
this Court held as follows :

“48. …In other words, Article 300A only limits the
powers of the State that no person shall be

deprived of his property save by authority of law.
There has to be no deprivation without any sanction

of law. Deprivation by any other mode is not
acquisition or taking possession under Article 300A.
In other words, if there is no law, there is no
deprivation.” (emphasis supplied) 10.3. In this case,
the Appellant could not have been forcibly
dispossessed of her property without any legal
sanction, and without following due process of law,
there is no deprivation.”

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12.6 In this case, the Appellant could not have been
forcibly dispossessed of her property without any legal
sanction, and without following due process of law, and
depriving her 6 (2011) 9 SCC 354. 7 (1995) Supp. 1 SCC

.

596. payment of just compensation, being a fundamental
right on the date of forcible dispossession in 1967.
12.8. The contention of the State that the Appellant or her

predecessors had “orally” consented to the acquisition is
completely baseless. We find complete lack of authority

of
and legal sanction in compulsorily divesting the Appellant
of her property by the State.

12.9. In a democratic polity governed by the rule of law,
rt
the State could not have deprived a citizen of their
property without the sanction of law. Reliance is placed

on the judgment of this Court in Tukaram Kana Joshi &
Ors. v. M.I.D.C. & Ors. wherein it was held that the State
must comply with the procedure for acquisition,

requisition, or any other permissible statutory mode. The
State being a welfare State governed by the rule of law

cannot arrogate to itself a status beyond what is provided
by the Constitution.

12.10. This Court in State of Haryana v. Mukesh Kumar
held that the right to property is now considered to be not

only a constitutional or statutory right, but also a human
right. 8 (2013) 1 SCC 353. Human rights have been
considered in the realm of individual rights such as right
to shelter, livelihood, health, employment, etc. Human
rights have gained a multi− faceted dimension.
12.11. We are surprised by the plea taken by the State
before the High Court, that since it has been in continuous
possession of the land for over 42 years, it would
tantamount to “adverse” possession. The State being a

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welfare State, cannot be permitted to take the plea of
adverse possession, which allows a trespasser i.e. a
person guilty of a tort, or even a crime, to gain legal title
over such property for over 12 years. The State cannot be

.

permitted to perfect its title over the land by invoking the
doctrine of adverse possession to grab the property of its
own citizens, as has been done in the present case.

12.12. The contention advanced by the State of delay and
laches of the Appellant in moving the Court is also liable

of
to be rejected. Delay and laches cannot be raised in a
case of a continuing cause of action, or if the
circumstances shock the judicial conscience of the Court.
rt
Condonation of delay is a matter of judicial discretion,
which must be exercised judiciously and reasonably in

the facts and circumstances of a case. It will depend upon
the breach of fundamental rights, and the remedy
claimed, and when and how the delay arose. There is no

period of limitation prescribed for the courts to exercise
their constitutional jurisdiction to do substantial justice.

12.13. In a case where the demand for justice is so
compelling, a constitutional Court would exercise its

jurisdiction with a view to promote justice, and not defeat
it.

12.14. In Tukaram Kana Joshi & Ors. v. M.I.D.C. &
Ors.,10 this Court while dealing with a similar fact
situation, held as follows : “There are authorities which
state that delay and laches extinguish the right to put
forth a claim. Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong done to
them decades ago, recovery of statutory dues, claim for
educational facilities and other categories of similar cases,
etc. Though, it is true that there are a few authorities that

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lay down that delay and laches debar a citizen from
seeking remedy, even if his fundamental right has been
violated, under Article 9 P.S. Sadasivaswamy v. State of
T.N. (1975) 1 SCC 152. 10 (2013) 1 SCC 353. 32 or 226 of

.

the Constitution, the case at hand deals with a different
scenario altogether. Functionaries of the State took over
possession of the land belonging to the Appellants without

any sanction of law. The Appellants had asked
repeatedly for grant of the benefit of compensation. The

of
State must either comply with the procedure laid down for
acquisition, or requisition, or any other permissible
statutory mode.” (emphasis supplied)
rt

13. In the present case, the Appellant being an illiterate
person, who is a widow coming from a rural area has

been deprived of her private property by the State without
resorting to the procedure prescribed by law. The
Appellant has been divested of her right to property

without being paid any compensation whatsoever for over
half a century. The cause of action in the present case is a

continuing one, since the Appellant was compulsorily
expropriated of her property in 1967 without legal

sanction or following due process of law. The present case
is one where the demand for justice is so compelling since

the State has admitted that the land was taken over
without initiating acquisition proceedings, or any
procedure known to law. We exercise our extraordinary
jurisdiction under Articles 136 and 142 of the
Constitution, and direct the State to pay compensation to
the appellant.

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19. To the similar effect, the Hon’ble Apex Court in

(2022) 7 SCC 508 titled as Sukh Dutt Ratra and another vs.

State of H.P. and others has held as under:

.

“14. It is the cardinal principle of the rule of law, that
nobody can be deprived of liberty or property without due

process, or authorization of law. The recognition of this
dates back to the 1700s to the decision of the King’s
Bench in Entick v. Carrington17 and by this court in Wazir

of
Chand v. The State of Himachal Pradesh18. Further, in
several judgments, this court has repeatedly held that
rather than enjoying a wider bandwidth of lenience, the
rt
State often has a higher responsibility in demonstrating

that it has acted within the confines of legality, and
therefore, not tarnished the basic principle of the rule of
law.

15. When it comes to the subject of private property, this
court has upheld the high threshold of legality that must
be met, to dispossess an individual of their property, and

even more so when done by the State. In Bishandas v.

State of Punjab19 this court rejected the contention that
the petitioners in the case were trespassers and could be
removed by an executive order, and instead concluded

that the executive action taken by the State and its
officers, was destructive of the basic principle of the rule
of law. This court, in another case – State of Uttar Pradesh
and Ors. v. Dharmander Prasad Singh and Ors. 20, held:
“A lessor, with the best of title, has no right to resume
possession extra-judicially by use of force, from a lessee,
even after the expiry or earlier termination of the lease by
forfeiture or otherwise. The use of the expression ‘re-entry’
in the lease-deed does not authorise extrajudicial methods

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to resume possession. Under law, the possession of a
lessee, even after the expiry or its earlier termination is
juridical possession and forcible dispossession is
prohibited; a lessee cannot be dispossessed otherwise

.

than in due course of law. In the present case, the fact
that the lessor is the State does not place it in any higher
or better position. On the contrary, it is under an

additional inhibition stemming from the requirement that
all actions of Government and Governmental authorities

of
should have a ‘legal pedigree'”.

16. Given the important protection extended to an
individual vis-a-vis their private property (embodied
rt
earlier in Article 31, and now as a constitutional right in
Article 300-A), and the high threshold the State must meet

while acquiring land, the question remains – can the
State, merely on the ground of delay and laches, evade its
legal responsibility towards those from whom private

property has been expropriated? In these facts and
circumstances, we find this conclusion to be unacceptable,

and warranting intervention on the grounds of equity and
fairness.

17. When seen holistically, it is apparent that the State’s
actions, or lack thereof, have in fact compounded the

injustice meted out to the appellants and compelled them
to approach this court, albeit belatedly. The initiation of
acquisition proceedings initially in the 1990s occurred
only at the behest of the High Court. Even after such
judicial intervention, the State continued to only extend
the benefit of the court’s directions to those who
specifically approached the courts. The State’s
lackadaisical conduct is discernible from this action of
initiating acquisition proceedings selectively, only in

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respect to the lands of those writ petitioners who had
approached the court in earlier proceedings, and not other
land owners, pursuant to the orders dated 23.04.2007 (in
CWP No. 1192/2004) and 20.12.2013 (in CWP No.

.

1356/2010) respectively. In this manner, at every stage,
the State sought to shirk its responsibility of acquiring
land required for public use in the manner prescribed by

law.

18. There is a welter of precedents on delay and laches

of
which conclude either way – as contended by both sides
in the present dispute – however, the specific factual
matrix compels this court to weigh in favour of the
rt
appellant-land owners. The State cannot shield itself
behind the ground of delay and laches in such a situation;

there cannot be a ‘limitation’ to doing justice. This court in
a much earlier case – Maharashtra State Road Transport
Corporation v. Balwant Regular Motor Service, held:

’11……”Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical doctrine.

Where it would be practically unjust to give a
remedy, either because the party has, by his

conduct, done that which might fairly be regarded
as equivalent to a waiver of it, or where by his

conduct and neglect he has, though perhaps not
waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to
place him if the remedy were afterwards to be
asserted in either of these cases, lapse of time and
delay are most material.

But in every case, if an argument against
relief, which otherwise would be just, is founded
upon mere delay, that delay of course not

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amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon
principles substantially equitable. Two
circumstances, always important in such cases,

.

are, the length of the delay and the nature of the
acts done during the interval, which might affect
either party and cause a balance of justice or

injustice in taking the one course or the other, so far
as relates to the remedy.”

of

19. The facts of the present case reveal that the
State has, in a clandestine and arbitrary manner,
actively tried to limit disbursal of compensation as
rt
required by law, only to those for which it was
specifically prodded by the courts, rather than to all

those who are entitled. This arbitrary action, which
is also violative of the appellants’ prevailing Article
31 right (at the time of cause of action), undoubtedly

warranted consideration, and intervention by the
High Court, under its Article 226 jurisdiction. This

court, in Manohar (supra) – a similar case where the
name of the aggrieved had been deleted from

revenue records leading to his dispossession from
the land without payment of compensation – held:

6″Having heard the learned counsel for the
appellants, we are satisfied that the case projected
before the court by the appellants is utterly
untenable and not worthy of emanating from any
State which professes the least regard to being a
welfare State. When we pointed out to the learned
counsel that, at this stage at least, the State should
be gracious enough to accept its mistake and
promptly pay the compensation to the respondent,

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the State has taken an intractable attitude and
persisted in opposing what appears to be a just and
reasonable claim of the respondent.

Ours is a constitutional democracy and the

.

rights available to the citizens are declared by the
Constitution. Although Article 19(1)(f) was deleted
by the Forty-fourth Amendment to the Constitution,

Article 300-A has been placed in the Constitution,
which reads as follows: “300-A. Persons not to be

of
deprived of property save by authority of law.–No
person shall be deprived of his property save by
authority of law.” 8.This is a case where we find
rt
utter lack of legal authority for deprivation of the
respondent’s property by the appellants who are

State authorities. In our view, this case was an
eminently fit one for exercising the writ jurisdiction
of the High Court under Article 226 of the

Constitution…

20. Again, in Tukaram Kana Joshi (supra) while

dealing with a similar fact situation, this court held
as follows: (SCC p. 359 para11)

“11”There are authorities which state that delay
and laches extinguish the right to put forth a claim.

Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong
done to them decades ago, recovery of statutory
dues, claim for educational facilities and other
categories of similar cases, etc. Though, it is true
that there are a few authorities that lay down that
delay and laches debar a citizen from seeking
remedy, even if his fundamental right has been
violated, under Article 32 or 226 of the Constitution,

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the case at hand deals with a different scenario
altogether. The functionaries of the State took over
possession of the land belonging to the appellants
without any sanction of law. The appellants had

.

asked repeatedly for grant of the benefit of
compensation. The State must either comply with
the procedure laid down for acquisition, or

requisition, or any other permissible statutory
mode.”

of

21. Having considered the pleadings filed, this
court finds that the contentions raised by the State,
rt do not inspire confidence and deserve to be
rejected. The State has merely averred to the
appellants’ alleged verbal consent or the lack of

objection, but has not placed any material on record
to substantiate this plea. Further, the State was
unable to produce any evidence indicating that the

land of the appellants had been taken over or
acquired in the manner known to law, or that they

had ever paid any compensation. It is pertinent to
note that this was the State’s position, and

subsequent findings of the High Court in 2007 as
well, in the other writ proceedings.”

20. The similar position has been reiterated and relied

upon in the judgment of the Hon’ble Apex Court by the Hon’ble

Division Bench of this Court in CWP No. 491 of 2022, titled as

Sakuntla Devi and another vs. State of Himachal Pradesh

& another dated 20.10.2023. After relying upon the judgment

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of the Apex Court in Vidya Devi & SukhDutt Ratra‘s case, the

Court held as follows:

“7. In the aforesaid judgments, Hon’ble Apex Court has

.

categorically held that contention advanced by the State
of delay and laches of the appellant in moving the Court is
liable to be rejected especially when it is not in dispute

that petitioner are suffering continuous loss coupled with
the fact that they repeatedly requested the authorities to

of
initiate acquisition proceedings.

8. If the aforesaid judgments are read in their entirety, it
clearly emerges that land owners cannot be deprived of
rt
their land, without following due process of law. If it is so,
ground raised by the respondents that petitioners have

made their land available with consent, is of no
consequence rather, this court, having taken note of the
fact that the land of petitioners stands utilized for the

construction of road in question, is compelled to agree
with the submission of learned counsel for the petitioners

that her clients are entitled for compensation qua the land
utilized by respondents for construction of road in

question.

10. Admittedly, land of the petitioners stands utilized for

construction of road but till date, they have not been paid
any amount, which action of the respondent-State
certainly amounts to forcible dispossession of the
petitioners from their land, which is violative of provision
contained under Art. 300-A of the Constitution of India.

14. In case titled, State of Himachal Pradesh v. Umed
Ram Sharma (1986) 2 SCC 68, Hon’ble Apex Court has
held that entire State of Himachal Pradesh is a hilly area
and without workable roads, no communication is

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-21-

possible; every person is entitled to life as enjoined in
Article 21 of the Constitution of India; every person has
right under Article 19 (1) (b) of the Constitution of India to
move freely, throughout the territory of India; for the

.

residents of hilly areas, access to road is access to life
itself. Stand taken by the respondents that there was a
policy for providing roads on demand of residents as a

favour to them on conditions that they would not claim
compensation, cannot be sustained because such stand is

of
violative of Article 300A of the Constitution of India.

15. In case titled Hari Krishna Mandir Trust v. State of
Maharashtra and others, 2020 9 SCC 356, Hon’ble Apex
rt
Court has held that though right to property is not a
fundamental right, but it is still a constitutional right

under Article 300A of the Constitution of India and also a
human right; in view of the mandate of Article 300A, no
person can be deprived of his property save by the

authority of law. No doubt, State possesses the power to
take or control the property of the owner of the land for

the benefit of public, but at the same time, it is obliged to
compensate the injury by making just compensation.”

21. The Courts 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 and have

rightly came to the conclusion that he is entitled for mandatory

injunction with the direction to acquire the portion of the suit

land which has been utilized by the present appellants for the

construction of the road.

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-22-

22. The Hon’ble Apex 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

of
as raised by the present appellants is not permissible that too

at the stage of Regular Second Appeal. There are concurrent
rt
findings of fact by the Courts below.

23. The Hon’ble Supreme Court in catena of judgments

has held that the first appellate is the final 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.

24. 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

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-23-

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

of
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
rt right attached to the litigation. Being a
substantive statutory right, it has to be regulated in
accordance with law in 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.

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-24-

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

of
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
rt
rejected the witnesses accepted by the trial court, the
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

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-25-

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

of
case whether a question of law is a substantial one and
involved in the case, or not; the paramount overall
consideration being the need for striking a judicious
rt
balance between the indispensable obligation to do justice
at all stages and impelling necessity of avoiding

prolongation in the life of any lis.”

25. 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

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-26-

(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

of
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
rt
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
evidence available on record as also the circumstance that
signature(s)/thumbmark(s) appearing on the document

(Exb.A2) 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.

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-27-

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

of
has treated the contract subsisting with preparedness to
fulfill his obligation and accept performance when the
time for performance arrives.”

rt

26. No other point was raised by the learned counsel for

the parties.

27. Both the Courts below have rightly appreciated the

Point in controversy 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 present

case.

28. In view of above, the present appeal being devoid of

any merit deserves to be dismissed. Ordered accordingly.

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

(Romesh Verma)
Judge

13th March, 2026.

(Nisha)

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