( 2026:HHC:33788 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.440 of 2025 Decided on: 10.08.2026 Leela Dutt …Petitioner Versus Rajender Kumar & Ors. …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 _______________________________________________________________ For the petitioner : Mr. Neeraj Gupta, Senior Advocate, with Mr. Harshit Sharma, Advocate. For the respondents : Mr. Mohinder Verma, Advocate. Virender Singh, Judge Petitioner-Leela Dutt, has filed the present petition, under Article 227 of the Constitution of India, against the order dated 17.06.2025, passed by the Court of learned Additional District Judge-II, Solan, District Solan, H.P. (hereinafter referred to as the First Appellate Court), in Civil Miscellaneous Appeal No.16-ADJ-II/14 of 2024/23, titled as Leela Dutt vs. Rajender Kumar and others. 2. By way of order dated 17.06.2025, the learned First Appellate Court has dismissed the Civil Miscellaneous Appeal preferred by the petitioner, against the order dated 30.06.2023, passed by the Court of learned Civil Judge, 1 Whether Reporters of local papers may be allowed to see the judgment? Kandaghat, District Solan, H.P.( hereinafter referred to as the trial Court). 3. Vide order dated 30.06.2023, the learned trial Court has dismissed the application, under Order 39, Rules 1 & 2, read with Section 151 of CPC, filed by the petitioner, in civil suit, titled as Leela Dutt versus Rajinder Kumar and others. 4. For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 5. Brief facts, leading to the filing of the present petition before this Court, as borne out from the documents, annexed with the petition, may be summed up, as under:- 5.1. Plaintiff-Leela Dutt has filed a suit for declaration to the effect that the land comprised in Khata/Khatauni No.15/23, Khasra Nos.3, 23, 30, 48, 73, 75, 83, 84, 96, 97, 98, 107, 108, 111, 118, 119, 121, 122, 123, 125, 136, 137, 139, 140, 145, 148, 159, 167, 170, 229, 239, 249, 292/263, 293/263, 294/263, 267 and 277, total Kitta 37, measuring 53-10 bighas, situated in Mauza Anji Brahamana, Up-Tehsil Mamlig, Hadbast No.91, Tehsil Kandaghat, District Solan, H.P. (hereinafter referred to as the suit land), is joint between the plaintiff and defendants and partition proceedings carried out by the Assistant Collector, IInd Grade, Mamlig, dated 01.05.2017, are wrong, illegal, null and void, without jurisdiction, as well as, Mutation No.276, dated 13.12.2017, attested on the basis of Khangi Takseem, by the Assistant Collector, IInd Grade Mamlig, is also wrong, illegal, null and void and also without jurisdiction and does not affect the right of the plaintiff. Similarly, the order dated 17.10.2022, passed in Case No.7-8 of 2018, by the Sub Divisional Collector, Kandaghat, is also wrong, illegal, null and void and defendants may be restrained from changing the nature, raising construction, cutting trees, making any waste or damage, alienation, creating any charge over the joint land mentioned above, either by themselves or through their agents. 5.2. The suit has been filed, on the ground, that the plaintiff and defendants are co-owners in possession of the suit land. The suit land is stated to be jointly owned and possessed by the parties to the lis and has not been partitioned, by meets and bounds. 5.3. According to plaintiff, the predecessor in interest of defendants Amba Dutt had moved an application for partition of the suit land, before the Assistant Collector, IInd Grade, Mamlig. The notices of the application were served, upon the plaintiff and the plaintiff appeared and gave statement that he has no objection, in case, the partition is carried out, as per the possession of the parties. After recording statement on 23.02.2017, the Assistant Collector, IInd Grade, Mamlig, ordered the Field Kanungo to directly partition the land, without preparing the mode of partition. The order dated 23.02.2017, passed by the Assistant Collector, IInd Grade, Sub Tehsil Mamlig, is also stated to be wrong, illegal and without jurisdiction. The plaintiff has neither given statement, nor, agreed for Khangi partition of the land. 5.4. It is the further case of the plaintiff that he has filed the appeal, before the Sub Divisional Collector, Kandaghat, which was also dismissed on 17.10.2022. The said order is also stated to be wrong, illegal and without jurisdiction, nor, in accordance with law. 6. On the basis of the above facts, a prayer has been made to decree the suit. 7. When put to notice, the defendants contested/controverted the suit, by filing the written statement, in which, they have taken the preliminary objections that the suit is not maintainable; plaintiff has no locus standi to file the present suit; plaintiff has no cause of action to file the suit; plaintiff is estopped from filing the suit, on account of his act and conduct; plaintiff has suppressed the material facts; the suit is stated to be bad for want of better particulars; the Civil Court has no jurisdiction and suit of the plaintiff is barred by limitation. 7.1. On merit, the suit has been contested, on the ground, that the suit land has already been partitioned, through due process of law, vide Mutation No.276, dated 13.12.2017. Thereafter, the appeal filed by the plaintiff has also been dismissed, by the Sub Divisional Collector Kandaghat on 17.10.2022 and instead of assailing the order before the higher Revenue Courts, he has filed the present suit. Other contents have also been controverted. 7.2. Plaintiff filed replication, denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested. 7.3. Along with the plaint, the plaintiff has filed the application, under Order 39, Rules 1 and 2 CPC, with the prayer that during the pendency of the lis, defendants be restrained from changing the nature, raising construction, taking forcible possession, in pursuance to the alleged partition proceedings, cutting valuable trees, alienating and creating charge, causing any damage to the suit land. 7.4. The said application has also been contested, on the ground, upon which, the suit has been contested. 7.5. After hearing learned counsel appearing for the parties, the learned trial Court has dismissed the application. 7.6. Against the said order, the plaintiff has filed the Civil Miscellaneous Appeal, before the learned First Appellate Court and his appeal has also been dismissed. 7.7. Now, those findings have been assailed, before this Court by the plaintiff, under Article 227 of the Constitution of India. 8. The scope of the interference, under Article 227 of the Constitution of India has elaborately been discussed, by the Hon’ble Supreme Court in “K. Valarmathi & Ors. Versus Kumaresan, 2025 INSC 606” has elaborately discussed the scope of interference. Relevant para 9 of the judgment, is reproduced, as under: “Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227.” 9. In a recent decision in “Nandi Infrastructure Corridor Enterprises Ltd. & Anr. Versus B. Gurappa Naidu & Ors., 2026 INSC 434”, the scope of interference has again been explained by the Hon’ble Supreme Court. Relevant paragraph 35 of the judgment, is reproduced, as under:- “35. In short, the principles laid down in the above matters is as follows: a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. c) 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 its own decision on facts and conclusion, for that of the inferior court or tribunal.” 10. Being guided, by the above decisions, now, this Court would proceed further to determine the fact, whether the findings of the learned trial Court, which have been affirmed, by the learned First Appellate Court, fall within the definition of ‘perverse findings’ or those findings are result of non exercise of the jurisdiction, vested in it, or irregular exercise of the jurisdiction, by the learned trial Court. 11. The plaintiff has sought the declaration, qua the partition proceedings, which admittedly, have taken place between the parties, as null and void. According to the plaintiff, the suit land is still joint between the parties and it is also his pleaded case that the predecessor in interest of defendants Amba Dutt had moved an application for partition, before the Assistant Collector, IInd Grade, Mamlig and plaintiff appeared and gave statement that he has no objection, in case, the partition is carried out, as per the possession of the parties. 12. Thereafter, the partition was ordered, by the Assistant Collector, IInd Grade, Mamlig on 23.07.2017 and said order has admittedly been assailed, by the plaintiff, before the Sub Divisional Collector, Kandaghat and his appeal has also been dismissed. Admittedly, he has not filed any revision, against the said order and filed the present civil suit for declaring those proceedings, as null and void. 13. In order to succeed, in an application, under Order 39, Rules 1 and 2 CPC, the plaintiff has to satisfy, the learned trial Court, that the three ingredients, i.e., prima facie case, balance of convenience, irreparable loss and injury, which cannot be compensated, in terms of money, are in his favour. When, the plaintiff himself has taken the plea that in the application moved, by the predecessor in interest of the defendants, he has made no objection, in case, the partition is carried out and thereafter, vide order dated 23.02.2017, partition has been taken place and the said order has unsuccessfully been assailed, then, the learned trial Court has rightly held that no prima facie case in his favour. 14. The term ‘prima facie case’ has no where been defined, in the CPC, but, according to the settled proposition of law, a case which requires mature consideration of the Court and a case which cannot be thrown away at the thresh hold of litigation, can be said to be a prima facie case. Whereas, after the order dated 23.02.2017, the status of the parties, as co-sharer comes to an end and admittedly, the said order has not been tinkered with by the Sub Divisional Collector, Kandaghat. 15. Except, the bald assertions in the plaint, there is nothing on record to demonstrate that the partition proceedings, which had taken place between the parties, was not in accordance with the provisions of law. 16. It is not the case of the plaintiff that the land more than their share was given to the defendants. His grievances, as per the pleadings, is that he had agreed to implement the partition, as per the possession and according to him, the land was ordered to be partitioned, without preparing the mode of partition. The alleged procedural lapses are too short to make out a prima facie case in favour of the plaintiff. 17. Moreover, the learned counsel appearing for the plaintiff could not point out, as to how, the true owner can be restrained from dealing with his property, as admittedly, after the partition, the defendants become exclusive owner in possession of the property, which had fallen in their share, in the partition proceedings. 18. Till date, no order has been placed on record to demonstrate that any of the competent authority has raised a question mark, over the partition proceedings and on the basis of the bald assertions in the pleadings, the plaintiff would not suffer irreparable loss and injury, in case, injunction is not granted to him. Moreover, defendants, being owners-in-possession, cannot be prevented to deal with the property and putting restrictions upon them, would cause irreparable loss and injury to the defendants, not to the plaintiff. 19. The learned trial Court has considered all these material facts and rightly dismissed the application and those findings have rightly been upheld by the learned First Appellate Court. Those findings, to the considered opinion of this Court, neither, fall within the definition of ‘perverse findings’ nor, the said findings could be said to be recorded, by the learned trial Court, ignoring the basic principle of governing the grant/refusal of the injunction, under Order 39, Rules 1 and 2 CPC. 20. In the limited jurisdiction, under Article 227 of the Constitution of India, there is no occasion for this Court to interfere with the findings, so recorded, by the learned trial Court, as upheld by the learned First Appellate Court. Consequently, the present petition is dismissed. 21. Pending application(s), if any, shall also stands disposed of. 22. Any of the observations made hereinabove 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 petition. (Virender Singh) August 10, 2026 Judge (subhash sharma)