1 2026:HHC:30036 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OMP No. 1639 of 2025 in C.S. No. 58 of 2025 Reserved on: 19.6.2026 Decided on : 21.7.2026 Uploaded on: 21.7.2026 Narinder Kumar Seth & anr. … Applicants Versus Dharmender Kumar Seth …Non-applicant _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Applicants: Mr. Deepak Gupta, Advocate. For the Non-applicants : Mr. Vishal Mohan, Senior Advocate, assisted by Mr. Rohit Shyam, Advocate. Virender Singh, Judge The present application has been filed, under Order 39 Rules 1 and 2 CPC, with a prayer to restrain the respondent, from interfering in peaceful possession of the applicants/plaintiffs, either personally, or through his agents, servants, employees, family members, customers etc. over the land comprised in Khata No. 48, Khatauni No. 59, Khasra No. 1082, measuring 39.47 sq. meters, 1083 measuring 233-60 sq. 2 2026:HHC:30036 meters and Khasra No. 1089 measuring 08-00 sq. meters alongwith the land comprised in Khewat No. 28 min, Khatauni No. 37, Khasra Nos. 1220/1088, 1090, 1094, Kitas 3, measuring 219-34 square meters. A prayer has also been made to restrain the respondent from interfering in the portion falling in exclusive possession of plaintiff/applicant No. 1, shown in yellow and light blue colour, which is common portion of Hotel Lord’s Grey in Plan Annexure P-1. (The land detailed above is referred to as ‘the suit land’). 2. The said application has been filed in Civil Suit No. 58 of 2025, titled as, Narinder Kumar Seth & anr. versus Dharminder Kumar Seth. 3. The said suit has been filed for possession, by demolition of structure, illegally raised by the respondent (hereinafter referred to as ‘the defendant’), over a portion of the suit land, which is shown in Plan Annexure P-1, and for grant of decree of permanent perpetual prohibitory injunction, restraining the defendant from interfering in the peaceful possession of the petitioner 3 2026:HHC:30036 (hereinafter referred to as ‘the plaintiffs’), over the suit land. 4. The suit has been filed, on the ground, that the suit property, namely, Hotel Lord’s Grey, is a six storeyed building. The said Hotel has been constructed upon Khasra Nos. 1085, 1086, 1087, 1119, 1120, 1121, 1123, Kita 8 measuring 334-13 square meters. The said property was earlier joint between plaintiff No. 1, defendant, another brother namely Mohinder Seth in equal shares. Due to differences, arisen between the brothers, the said property was partitioned by virtue of partition deed executed, inter se the co-owners, on 20.5.2013. The same has been annexed with the plaint as Annexure P-3. As per the terms and conditions of the said partition deed, different portions of the Hotel were divided amongst the co-sharers and certain portions were kept common. In this regard, the plaintiffs have relied upon the plan, in which, property of all the co- sharers have been depicted in different colours. 5. According to the plaintiffs, the portion, shown in yellow colour, fell in the share of plaintiff No. 1, the 4 2026:HHC:30036 portion shown in the orange colour fell in the share of the defendant and the one shown in pink colour fell within the share of other brother namely Mohinder Seth. The common passage of plaintiff No. 1 and defendant was kept joint and depicted in light brown colour in Annexure P-1. The property which had fallen to the share of plaintiff No. 2, which has allegedly been encroached upon by the defendant, has been shown in dark blue/purple colour in the Plan. Plaintiff No. 2 was not a party or signatory to the said partition deed. 6. As per the terms and conditions of the partition deed, and as per the case set up by the plaintiffs, defendant has agreed upon to remove the encroachment, which has been depicted in violet colour. However, he has failed to do so. The said encroachment has been described in clause-30 of the partition deed (Annexure P- 3), depicted in purple colour. 7. It is further case of the plaintiffs that plaintiff No. 2 had purchased the property by way of two different sale deeds, executed in favour of plaintiff No. 2, on 28.7.2007 (Annexures P-4 and P-5). She is the exclusive 5 2026:HHC:30036 owner in possession of those properties and the defendant is stated to be the complete stranger to the said property, owned and possessed by plaintiff No. 2 and has no right to encroach upon the same, damage the same, trespass or cause any hindrances or obstruction in the said property. 8. According to the plaintiffs, plaintiff No. 2 had also constructed a house upon a portion of Khasra No. 1220/1088, 1090, 1094, kitas 3, measuring 218-34 sq. meters. Both the plaintiffs, alongwith their family members, are residing in the said house. The approach to the said house is from the remaining vacant land of the plaintiffs upon Khasra No. 1220/1088, 1090 and 1094. Those Khasra Nos. are exclusively owned by plaintiff No. 2. 9. Relying upon the partition deed, Annexure P-3, it is their further case that the defendant has duly agreed that he shall not claim any other approach except the common approach from the Circular Road, leading to his share in the hotel. 6 2026:HHC:30036 10. It is the case of the plaintiffs that the plaintiffs, being senior citizens, in order to protect their property, from being trespassed, had installed an iron gate on the entry point of land of plaintiff No. 2, from road leading to Fingask Estate, which is towards Northern side of the suit property. However, defendant, alongwith his family members, in the absence of plaintiff No. 2, trespassed in the land, exclusively owned by her and vandalized the iron gate. The matter was also reported to the Police, where, FIR No. 219 of 2025, under Sections 329(3), 324(4), 351(2) and 3(5) of the Bharatiya Nyaya Sanhita, 2023 was registered. Not only this, the defendant has also started interfering in the exclusive ownership and possession of plaintiff No. 2. He has also started interfering in the portion of the Hotel, which had fallen to the share of plaintiff No. 1. The defendant not only failed to abide by the terms and conditions of partition deed, but also failed to remove the encroachments. 11. On the basis of above facts, the plaintiffs have sought the following reliefs: “i) A decree for possession by demolition of structure illegally raised by the defendant upon the land comprised in Khewat 7 2026:HHC:30036 No. 48, Khatuni No.59, Khasra No. 1083, measuring 233.60 square meters as duly depicted and earmarked in Plan Annexure P-1 in violet colour filed alongwith the plaint; situated at Up Mohal Upper Kaithu, Station ward Bara Shimla, Tehsil and District Shimla, H.P. ii) That a decree for permanent prohibitory injunction may kindly be passed in favour of the plaintiffs and against the defendant, restraining the defendant either Personally or through his agents, servants, employees, family members, customers etc. from interfering in peaceful possession or the plaintiffs upon the land comprised in Khata No. 48, Khatuni No. 59, Khasra No. 1082 measuring 39.47 sq Mts, 1083 measuring 233-60 square meters and Khasra No. 1089 measuring 08-00 square meters along with land comprised in Khewat No. 28min, Khatauni No. 37, Khasra Nos. 1220/1088, 1090, 1094, Kitas 3, measuring 219-34 square meters and also the portion falling in exclusive share of Plaintiff No 1 shown in yellow colour and light blue colour (which is common portion of hotel) in plan annexed as Annexure P-1.” 12. Alongwith the suit, the present application has also been filed, seeking relief of injunction, as referred to above. 13. When, put to notice, the suit, as well as, the application has been contested by the defendant. The defendant has contested the suit by filing written statement, by taking preliminary objections that the present suit is not maintainable, as the same has been filed by suppressing the material facts; the plaintiffs have not approached the Court with clean hands. The 8 2026:HHC:30036 plaintiffs have not impleaded the concerned Revenue/Municipal authority, despite the fact that the disputed gate and passage are situated upon Government land/public land, and not on their private property and they have also suppressed the material documents from this Court, including the joint fire safety plans, submitted by both the parties, before Fire Department and the Fire Department issued ‘No Objection Certificate’, after inspecting the spot. These facts have been pleaded by the defendant to demonstrate that there was no encroachment, as alleged. 14. According to the defendant, the passage is open and there is no interruption caused by him. The suit is also stated to be bad for mis-joinder and non-joinder of the necessary parties, as the State Government and the Municipal Corporation have not been impleaded as party. 15. As per the further stand of the defendant, the plaintiffs have no cause of action; the suit is not properly valued for the purpose of Court fee and jurisdiction; the plaintiffs are estopped from filing the suit, on account of 9 2026:HHC:30036 their acts and conduct. The plaintiffs are stated to have deliberately concealed the document dated 28.11.1991, whereby both the parties have lawfully created and purchased the portion of the land, exclusively for use as a passage. As per the said document, a strip of land, measuring about 33.75 sq. yards, was agreed to be purchased only for the specific purpose of constructing a pucca passage only with a clear stipulation that no construction would be raised thereupon. 16. On merits, the suit has been contested by denying that property of plaintiffs has been encroached by the defendant. According to him, at the time of execution of partition deed in the year 2013, the land bearing khasra Nos. 1082, 1083 and 1089 was vacant and the so-called encroachments shown in violet colour, in the map attached with the partition deed, were in fact, situated on the property of plaintiff No. 2 and in terms of Clause-30 of the partition deed, all such encroachments were duly removed and thereafter, proper construction was raised after obtaining approval of building plans from the competent authorities. 10 2026:HHC:30036 17. It is the further case of the defendant that plaintiff No. 2 was also signatory to the partition deed and personally appeared before the Registering Authority. He has also denied that he has encroached upon the portion shown in the site plan with dark blue/purple colour. 18. Re-asserting the fact that the passage in dispute is situated over the government land, a prayer has been made to dismiss the suit. 19. On the similar grounds, application under Order 39 Rules 1 and 2 CPC has been contested. 20. The plaintiffs have filed the suit for possession by demolition of the structure, illegally raised by the defendant over land comprising khasra No. 1083, measuring 233.60 sq. meter, as shown in the site plan. The said relief has been sought on the ground that partition deed has been executed between the co-owners on 20.5.2013. The relief under Order 39 Rules 1 and 2 CPC has been sought against the defendant, restraining him from interfering in the peaceful possession over the land bearing khasra Nos. 1082, 1089, 1220/1088, 1090, 11 2026:HHC:30036 1094 and also portion falling in the exclusive share of plaintiff No. 1, shown in yellow colour and light blue colour (common portion of the hotel shown in site plan Annexure P-1). The said relief has been sought by both the plaintiffs. 21. As stated above, the factum of private partition, as pleaded in para-2 of the plaint, has been contested by pleading that the portion in exclusive possession of plaintiff No. 2, has not been encroached upon by the defendant and according to the defendant, at the time of partition, in the year 2015, land comprising in khasra Nos. 1082, 1083 and 1089 was vacant, and the so-called encroachment shown in violet colour, was, in fact, situated in the property of plaintiff No. 2, and as per clause-30 of the partition deed, all such encroachments were duly removed. Thereafter, the proper construction was raised after obtaining approval of building plan from the municipal authorities. 22. Heavily relying upon the building plan, it has been asserted that no encroachment subsisted on the said land. The stand that plaintiff No. 2 was not a party 12 2026:HHC:30036 or signatory to the partition deed, has also been contested by pleading that plaintiff No. 2 willingly signed the map attached to the partition deed and personally appeared before the Registering Authority. As such, she has fully consented to the demarcation and arrangements made therein. 23. The primary purpose of the relief, under Order 39 Rules 1 and 2 CPC, is to protect the subject matter of the lis, till the rights of the parties are decided, after the full fledged trial. The relief is protective in nature to maintain status quo qua the lis, as it exists at the time of inception of the lis. However, in order to succeed in an application, filed under Order 39 Rules 1 and 2 CPC, the plaintiffs have to prove three ingredients, i.e. prima-facie case, balance of convenience and irreparable loss of injury, which cannot be compensated in terms of money. 24. The relief of injunction is equitable relief and the party approaching the Court must disclose all the material facts. A person, who seeks equity, must do equity. In the above backdrop, now this Court would proceed further to determine whether the plaintiff has 13 2026:HHC:30036 successfully proved three ingredients, as well as, the fact that they have approached the Court with clean hands. 25. First of all, coming to the first ingredient ‘prima- facie’ case, is concerned, the said term, is nowhere defined in the Code of Civil Procedure, however, according to the settled proposition of law, the case, which requires mature consideration and which is not liable to be thrown away at the threshold of the litigation, falls within the definition of ‘prima-facie case’. 26. Here, the plaintiffs are asserting their claim for possession by demolition of structure, illegally raised by the defendant over khasra No. 1081, as shown in plan Annexure P-1, on the basis of partition deed, which has been admittedly executed between the co-owners on 20.5.2013. The execution of the partition deed has not been disputed by the defendant and a plea has been taken by the defendant that, so called, encroachments have already been removed, as per clause-30 of the partition deed. When, the partition deed has been relied upon by both the parties, then clause-30 of the same has to be read in the light of the stand, as taken by both 14 2026:HHC:30036 the parties and the same cannot be ignored. It is not the case of the plaintiff that clause 30 of the settlement/partition deed has not been complied with. 27. As per para-9 of the suit, cause of action is stated to be accrued to the plaintiffs by filing the suit recently, when, defendant, his wife, son and their employees and hotel staff have broken the iron gate and started harassing the guests and tourists, staying in the Hotel, whereas, defendant is asserting that all the encroachments have already been removed, as per Clause-30 of the partition deed. The suit, as well as, the application is totally silent about the fact when that the alleged encroachments were made by the defendant. Plaintiff No. 2 is signatory to the document (partition deed dated 20.5.2013) and as per clause-30, defendant D.K. Seth would remove the encroachment, abutting to the land of Ms. Asha Seth, plaintiff No. 2. It is not the case of the plaintiffs that the defendant has not complied with clause No. 30 of the document, governing their inter se relationship. 15 2026:HHC:30036 28. The plaintiffs are seeking relief of possession, as well as, permanent prohibitory injunction. The relief of possession is confined to Khasra No. 1083, measuring 233.60 sq. meters and they are also seeking relief regarding suit property, comprising in Khasra Nos. 1082, 1083, 1089, 1220, 1088 and 1090 and also, qua the portion falling in exclusive share of the plaintiffs in yellow colour and light blue colour, which has been described as common portion of the Hotel. 29. From the above stand, it appears that the plaintiffs themselves are not sure about their case, as, on one hand, they have asserted that private partition had taken place, whereas, nothing is there in the pleadings, as to when, the defendant has allegedly made efforts to interfere in their possession. The term ‘recently’ nowhere leads the case of the plaintiffs. As such, it can be said that plaintiffs have no prima-facie case, in their favour, at this stage. 30. Similarly, it cannot be said that balance of convenience lies in favour of the plaintiffs, especially when, defendant has taken the specific plea that as per 16 2026:HHC:30036 Clause-30, all the encroachments have been removed. Moreover, when, the specific stand has been taken by the defendant, qua the fact that the passage and gate are not situated over the government land, as such, no relief could be granted to the plaintiffs, until or unless, it has been established by the plaintiffs that the passage and gate are not situated over the government land. 31. When, the plaintiffs are asserting the fact that there is interference over the peaceful possession, it is for them to, prima-facie, prove this fact by pleading the necessary ingredients, as the defendant has taken the plea that there is no interruption in the common use of the area, kept joint between the parties. 32. In para-6 of the preliminary objections, it has been asserted by the defendant that vide document dated 28.11.1991, parties to the lis have purchased a portion of the land, for being used as passage measuring 33.75 sq. meters. 33. In the replication, the existence of the said document has not been disputed, however, it has been alleged that the same does not create any right upon the 17 2026:HHC:30036 parties, but, from the said fact, it can be said, at this stage, that the material facts have been concealed by the plaintiffs from the scrutiny of the Court. As such, they are not entitled for any equitable relief of injunction, in their favour, at this stage. 34. Considering all these facts, the present application is dismissed. 35. Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. (Virender Singh) Judge 21.7.2026 Kalpana