2025:HHC:22199 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.85 of 2025 Reserved on: 02.07.2025 Date of Decision: 10.07.2025 Paan Chand ...Petitioner Versus Hugat Ram ...Respondent Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? No. For the petitioner: Mr. G.R. Palsra, Advocate. For the respondent: Mr. Alok Ranjan, Advocate. Satyen Vaidya, Judge The instant petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 10.01.2025, passed by learned District Judge, Chamba in Civil Miscellaneous Appeal No.12 of 2024, whereby the order dated 24.09.2024, passed by learned Civil Judge, Tissa, District Chamba in CMA No.117 of 2020 has been reversed. 2. The petitioner herein is the plaintiff in original civil suit No.52 of 2024 pending on the files of learned Civil Judge, Tissa, District Chamba, H.P. He has filed suit for permanent prohibitory and mandatory injunctions against the respondents herein with respect to 4 feet wide passage in Khewat No.127, Khatauni 2 No.152, Khasra No.639. The parties, hereafter shall be referred by the same status as they hold before the original Court. 3. The plaintiff has filed the suit by alleging that the land comprised in Khewat No.127, Khatauni No.152, Khasra Nos.160, 391, 453, 600, 639 & 817, total measuring 13-03-00 bighas in Mohal Swai, Tehsil Churah, District Chamba is the “Abadi Deh” land on which the houses of the plaintiff, defendant and other residents of the area were situated. The plaintiff claims that in between the house of the plaintiff and land of defendant there is 4 feet wide vacant space in Khasra No.639. The plaintiff claims himself to be in possession of the said land, which has been referred by the plaintiff as suit land. It is also the case of the plaintiff that 4 feet wide vacant space i.e. the suit land has been used by the plaintiff as passage to reach his house since the time of his forefathers. According to the plaintiff, the defendant by raising construction over the suit land was trying to usurp the passage. 4. In the written statement, the defendant has admitted that the land comprised in Khasra Nos.160, 391, 453, 600, 639 & 817 is “Abadi Deh” land and the houses of the parties and others were located. However, the defendant has denied having raised any construction on the suit land. 3 5. Along with the suit, plaintiff filed an application for interim injunction under order 39 rules 1and 2 of the Code of Civil Procedure. In reply to the application, the contents of written statement were reiterated. In addition, it was stated that there were two separate paths measuring 4 to 5 feet wide each catering to the house of the plaintiff. The plaintiff, according to the defendant, had already raised construction of his house and was left with no vacant land in his ownership or possession. It was also submitted that there was ample space on all sides of the house of the plaintiff for air and light. 6. Learned trial Court had allowed the application of the plaintiff vide order dated 24.09.2024 by taking into consideration the entries recorded in the jamabandi with respect to suit land. Since, the suit land is recorded as “Abadi Deh” land, learned trial Court formed an opinion that in order to preserve the subject matter of the suit and to avoid further complications, passing of interim injunction order was necessary. Accordingly, the defendant was restrained from causing nuisance, interference and raising illegal and forcible construction over the suit land till the disposal of the main suit. 7. The defendant assailed the order passed by learned trial Court before learned District Judge, Chamba by filing an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure. 4 8. Learned District Judge, Chamba vide impugned order has set aside the order passed by learned trial court on the premise that jamabandi did not reflect any passage on the suit land, as claimed by the plaintiff. Learned appellate Court also ignored the photographs of the spot as prima facie evidence by observing that since the photographs were not exhibited in the case, those could not be looked into. The Court further placed reliance on some proceedings undertaken by SDM, Churah with respect to the suit land, which apparently were not related to the subject matter of the suit, rather related to a dispute that had arisen on account of some construction work carried out by the plaintiff. 9. I have heard learned counsel for the parties and have also perused the record carefully. 10. Admittedly, the entire land comprised in Khasra Nos.160, 391, 453, 600, 639 & 817 is part of Khewat No.127, Khatauni No.152 having a large area of 13-3 bighas and the area of Khasra No.639 singly is more than 4 bighas. It is also not in dispute that the entire above stated land is “Abadi Deh”, which implies that the land is meant for structures and is used for the same purpose. The defendant has not denied that the houses of the parties and other residents of the area are located on the suit land. 5 11. In case, the houses of the parties and others are located on the suit land, it will be prudent to assume that the houses will not be without paths and passages. Separate possessions are not recorded in “Abadi Deh” land. The jamabandi of the land in question otherwise also does not reflect any specific possession of the right holder(s). That being so, learned appellate Court was not right in reversing the order passed by learned trial Court on the ground that passage, as claimed by the plaintiff, was not reflected in the jamabandi. 12. Similarly, refusal of learned appellate Court to look into the photographs for prima facie assessment of the fact situation also cannot be said to be a proper approach. Admittedly, at the initial stage, the Court had to form an opinion on the basis of material placed before it. 13. Noticeably, the defendant has not specifically denied the existence of vacant space existing between the land in his possession and the house of the plaintiff. The defendant came with a plea that the plaintiff has two separate passages for his house. 14. Thus, since the plaintiff was claiming to injunct the defendant only on a small portion of “Abadi Deh” land by identifying the same to be 4 feet wide passage between his house and the land of the defendant, the interim injunction could not 6 have been denied only for the reason that the existence of the passage was not reflected in the jamabandi, more importantly, when the defendant had taken a specific stand that he was not raising any construction on the land described as suit land by the plaintiff. The stance of the defendant rather divulges that he intends to raise construction on the suit land, otherwise he could have come with a clear plea that neither he had raised any construction on the suit land nor he intended to do so. 15. Thus, I find that the well-reasoned order passed by learned trial Court has been reversed and set aside on irrelevant considerations. The plaintiff had been able to establish prima facie case. Balance of convenience and irreparable loss was also in his favour. The existence of vacant space over suit land was prima facie established and thus the refusal of interim injunction, in the facts of the case, in all probabilities, would grant license to defendant to change its nature and thereby place the plaintiff in an irretrievable situation. 16. In result, the petition is allowed and order dated 10.01.2025, passed by learned District Judge, Chamba in Civil Miscellaneous Appeal No.12 of 2024 is set aside and the order dated 24.09.2024, passed by learned Civil Judge, Tissa, District Chamba in CMA No.117 of 2020 is affirmed. 7 17. Petition is accordingly disposed of along with pending application(s), if any. ( Satyen Vaidya ) Judge July 10, 2025 (vt)