IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.178/2021. Date of Decision: 10th April, 2025. Shamsher Singh .....Petitioner Versus Bhaginder & Ors. ….Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner: Ms. Yogita Dutta, Advocate. For the Respondents: Mr. Romesh Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate. Bipin Chander Negi, Judge (oral). The present petitioner is the plaintiff before the learned trial Court. By virtue of the order dated 11.09.2020, an interim order was granted in favour of the petitioner by the trial Court, whereby the present respondents were restrained from interfering over the suit land, specifically the gully/path situate thereupon. On appeal, the interim order so granted was vacated, vide impugned judgment dated 09.07.2021. Feeling aggrieved of the same, the present petition has been preferred. 2. The suit land bearing Khasra No.1466 situate in Chak Sunda Bhonda and is in the main Bazzar Chirgaon. In the plaint filed, it has been averred that the petitioner and the proforma respondent are owners in possession of the suit land. Over the suit land, a RCC structure is stated to have been built. The suit land is adjacent to the main bazzar Chirgaon. The respondents are stated to have their residential complex behind the Chirgaon Bazzar. On the suit land, there exists a path/gully, which is the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 bone of the contention in the case at hand. As per the petitioner, the respondents have no right to ingress or egress over the said path/gully. In order to stop usage of the Gully/path by the respondents, an iron gate was raised over the said Gully/path. On 14.07.2020, it is alleged that the respondents tried to dismantle the gate so raised. 3. Per contra in the reply filed on merit, it is submitted by the respondents that they have an easementary right over the path/Gully. Other than the aforesaid, it is contended that the local body has spent a sum of Rs.3 lacs over the repair of the path/gully in question. 4. In the aforesaid facts and attending circumstances, the trial Court was of the view that the easementary right being claimed by the respondent was required to be proved at trial. Besides the aforesaid, the trial Court was of the view that there exists an alternate path to the habitations of the respondent, therefore, in the interim till the adjudication of the suit, it was felt appropriate by the trial Court to restrain the respondents from using the Gully/path over the suit land. Insofar as money being spent was concerned, the trial Court was of the view that the money spent pertained to work carried out at Chak Sunda Bhonda Bazzar and not Chirgaon Bazzar. 5. The First Appellate Court based on the pleadings and material on record was of the view that the present petitioner was one of the co-sharers in possession of the suit property. Existence of a path/Gully, in the case at hand, was held to be 3 admitted by the petitioner in his plaint itself. Other than the aforesaid, the First Appellate Court was of the prima facie view that the suit land previously was recorded as “Kiar Awal” irrigated land. On account of development of the Chirgaon Bazzar, previous owners had sold their respective lands. The petitioner and respondents had raised the construction over this irrigated land. As per the ‘Wajib UI Araj’ there exist Abapashi rights i.e. customary rights to pass through the mends (boundary) of each field. The adjacent land bears Khasra No.1465. Between the suit land i.e. 1466 and 1465, there exists gully/path in question. The First Appellate Court was further of the view that for developing the said path, the local authority had spent Rs.3 lacs Approx. 6. Besides the aforesaid, on a prima facie appraisal of the pleadings and material on record, the First Appellate Court was of the view that since the houses of the respondents are located below the suit property and since they have no alternate path to approach their house, therefore, interim relief granted by the trial Court was required to be vacated. The contention of the existence of an alternate path to the house of the respondents was rejected by the First Appellate Court, as according to the Fist Appellate Court ‘Aks Kisatwar Shajra’ placed on record to depict the same was stated to have been tampered. Moreover, even in the same, no path had been shown which touched the khasra numbers, whereupon the houses of the respondents were situated. 4 7. The first appeal filed, in the case at hand, is an appeal on principle, against the exercise of discretion exercised by the trial Court. From a perusal of the same, it is evident that interference in the order passed by the trial Court by the First Appellate Court is based on well settled principles of law regulating grant or refusal of interim injunctions and the fact that the trial Court in passing the order had ignored relevant material in the case at hand. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph. (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.” 8. The present petition has been preferred under Article 227 of the Constitution of India. The scope of jurisdiction of 5 High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under:: (i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re- weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181, it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 9. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to 6 interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. 10. In the case at hand, for the reasons stated herein above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 11. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of. (Bipin Chander Negi) Judge 10th April, 2025 (Gaurav Rawat)