2026:HHC:11501 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 48/2026 Reserved on: 2.4.2026 Decided on: 9.4.2026 Subhash Chand …..Petitioner Versus Nishant & anr. …Respondents ______________________________________________________________ Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Naveen K. Dhiman, Advocate. For the Respondents: Mr. Anirudh Sharma, Advocate. Romesh Verma, Judge The present petition arises out of the order, dated 11.12.2025, as passed by the learned Civil Judge, Barsar, District Hamirpur, H.P. in CMA No. 159/2023, whereby the report and proposed mode of partition submitted by the Local Commissioner were set aside and the objections raised by the respondents/defendants were accepted. 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2 Brief facts of the case are that the present petitioner/plaintiff and respondents/defendants are co-owners of the land comprised in Khata No. 135, Khatauni No. 152, Khasra No. 3642, measuring 0-01-36 hectares; Khata No. 134, Khatauni No. 151, Khasra No. 3643, measuring 0-00-14 hectares; and Khasra No. 3644, measuring 0-01-47 hectares, as per jamabandi for the year 2008-09, situated at VPO Maharal, Tappa, Tehsil Dhatwal, District Hamirpur. 3 The petitioner/plaintiff had instituted a Civil Suit No. 171/2017, titled as Subhash Chand vs. Nishant etc. for partition of the suit land, which was decreed by passing a preliminary decree on 28.02.2023, whereby the petitioner/plaintiff was held entitled to half share in the suit land, while respondents/defendants were held entitled to one fourth share each therein. 4 The respondents/defendants filed an application under Order XX Rule 18 CPC read with Section 151 CPC for finalizing the preliminary decree, dated 28.02.2023 passed in Civil Suit No. 171/2017. 5 The petitioner/plaintiff contested the aforesaid application on the ground that since the decree was passed in a civil suit filed by him, therefore, an application for finalizing the 3 preliminary decree on behalf of the respondents/defendants is not maintainable and thus, liable to be dismissed. 6 It would be noticed that in order to comply with and implement the preliminary decree, Local Commissioner i.e. Naib Tehsildar, Dhatwal, District Hamripur, was appointed to demarcate the suit land and submit a proposed mode of partition. The Local Commissioner visited the spot and after recording statements of the parties submitted his report, dated 28.11.2023 in the following manner:- As per the proposed partition, land bearing Khasra No. 3642/1, area 0-00-06 hectares, Khasra No 3642/3, area 0-00-90 hectares and Khasra No.3644/1, area 0- 00-52 hectares, total 3 parcels of land having total area 0-01-48 hectares are proposed to be allotted to the applicant, Subhash Chand, son of Ghunghar. Similarly, land bearing Khasra No. 3642/2, area 0-00-40 hectares, Khasra No. 3643 area 0-00-14 hectares and Khasra No. 3644/2 area 0-00-95 hectares, total 3 parcels of land having area total area of 0-01-49 hectares are proposed to be allotted to the applicant, Nishant, son and Smt. Manju Lata, wife of Jagdev Chand, in accordance with their shares. 7 Thereafter, the respondents/defendants filed objections to the aforesaid report of the Local Commissioner on the premise that the proposed mode of partition has been 4 prepared wrongly in order to give undue benefit to the petitioner/plaintiff. It was further stated that Khasra No. 3642 is situated on the roadside and the roadside land ought to have been divided in equal shares between the parties, however the Local Commissioner has not taken into consideration said parameters and has given substantial portion of the roadside area to the petitioner/plaintiff. 8 After analyzing the material placed on record and taking into consideration report of the Local Commissioner along with joint statements of the respective parties, the learned trial court vide its impugned order dismissed the objections filed by the petitioner/plaintiff qua maintainability of the application filed by the respondents/defendants under Order XX Rule 18 CPC on the ground that the shares of the parties were adjudicated by passing preliminary decree. Therefore, any party can file an application for finalization of the said preliminary decree and accepted the objections filed by the respondent/defendant against report of the Local Commissioner and after setting aside report and proposed mode of partition submitted by the Local Commissioner, issued fresh reference to the Local Commissioner, directing him to effect the partition of the suit land between the parties in terms of order and decree, dated 28.02.2023 passed in C.S. No. 171/2017 and to prepare a 5 revised tatima and proposed mode of partition strictly in accordance with the shares declared in the preliminary decree dated 28.02.2023. 9 Feeling dissatisfied with the aforesaid order dated 11.12.2025, the plaintiff/petitioner has filed present petition under article 227 of the Constitution of India. 10 Mr. Naveen K. Dhiman, learned counsel for the petitioner/plaintiff, has vehemently argued that the impugned order as passed by the learned Civil Judge is illegal and not sustainable in the eyes of law since objections as preferred by the respondents/defendants have been wrongly accepted. He has submitted that he is in possession of the entire suit land and his residential house is situated over Khasra 3642 since time of their father, who had given it to petitioner/plaintiff. He has further submitted that the petitioner/plaintiff has reconstructed house and shops after spending substantial amount. He has urged that the report as submitted by the Local Commissioner is strictly in accordance with law and in consonance with the preliminary decree and on the basis of the possession of the petitioner/plaintiff, said mode was prepared, which is not illegal and is permissible and, thus, the same could not have been set aside by the learned trial court. 6 11 On the other hand, Mr. Anirudh Sharma, learned counsel for the respondent/defendant has defended the impugned order and has submitted that the learned trial court after appreciating real point in controversy and taking into consideration the report of the Local Commissioner and objections filed by the respondent/defendant have rightly passed the impugned order by making fresh reference to the Local Commissioner. 12 I have heard the learned counsel for the parties and have also gone through the case file. 13 The precise case of the petitioner before this Court is that he filed a suit (C.S. No. 171/2017) for passing of the preliminary decree and the same was allowed by the learned trial court on 28.2.2023. As per preliminary decree, the petitioner/plaintiff was held entitled to ½ share of the suit land and the defendants were held entitled to 1/4th share each. 14 It is not in dispute that the judgment and decree, dated 28.02.2023 were passed on the basis of the statement of the petitioner/plaintiff and the same have attained finality as none of the parties has assailed the same. 15 The learned trial court had passed preliminary decree determining share of the parties and after determination of the same, the defendant/respondent filed an application under 7 Order 20 Rule 18 read with Section 151 CPC finalizing preliminary decree. Though the petitioner/plaintiff objected to said objections on the ground that the said application could not be filed by the respondents/defendants, but the said objections are not sustainable in the eyes of law since after finalizing preliminary decree, any party can approach the Court since shares of the parties to the lis stand already determined by the learned trial court. 16 The contention of the petitioner/plaintiff is that he has raised house and shops over the suit land exclusively and the allotment of the roadside portion of the suit land to the respondents/defendants would prejudice his rights and thus, impugned order, whereby fresh reference has been made to the Local Commissioner, is contrary to the provisions of partition. 17 Once, as per admitted case of the parties, they are co-sharers in the suit land, therefore, merely possession of one co-sharer over particular portion of the suit property does not entitle him to retain the same to the disadvantage of the other side. 18 It has come on record that total frontage of the road side area comes to 34 meters and as per the report of the Local Commissioner, only 6 meters was given to the respondents/defendants and the remaining total frontage of the 8 road side area was given to the petitioner/plaintiff. The said unlawful distribution, which was proposed to be made by the Local Commissioner, is totally illegal and is in violation of the principles of natural justice. 19 A co-sharer cannot be deprived of best and valuable portion of the suit property to gain advantage and to the disadvantage to the other co-sharer. In case mode of partition, which was framed by the Local Commissioner is held to be sustainable in the eyes of law, in that event, the petitioner/plaintiff shall be at an advantageous position and that shall be contrary to the Rules and provisions of the partition. 20 It has also been submitted by the learned counsel for the petitioner/plaintiff that in lieu of the road side frontage, the petitioner intends to compensate the respondents/defendants somewhere else inasmuch as the house and shops have been reconstructed by him and he cannot part with the same. 21 To this submission, learned counsel for the respondents/defendants has submitted that the shops and house in question have been constructed by their common predecessor and this submission on part of the petitioner/plaintiff is factually incorrect. 22 Learned trial court has rightly come to the conclusion that substantial road side frontage was proposed to be made in 9 favour of the petitioner/plaintiff, therefore, objections which were filed by the respondents/defendants have been rightly allowed. No person can be allowed to avail unfair and undue advantage to the detriment of the other co-sharer. Mode of partition, which was made by the Local Commissioner, on the basis of the record is contrary to the preliminary decree that too by putting the respondents/defendants to the disadvantageous position by taking away best valuable portion of the land and allotting them only 6 meters of frontage out of total 34 meters of the area. The learned trial court has rightly appreciated and discussed the point in controversy and has dealt with the matter in detail. There is no jurisdictional error on the part of the learned trial court and thus, the impugned order is legal, valid and sustainable. 23 The petitioner has approached this court by invoking provisions of article 227 of the Constitution of India. This Court while exercising supervisory jurisdiction cannot act as a court of first appeal to re-appreciate, 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. This is not to substitute its own decision on facts and conclusion, for that of the inferior court. 10 24 The Hon’ble Supreme Court in Garment Craft vs. Prakash Chand Goel, 2022 (4) SCC 181 has 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 its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 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. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India 11 is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. 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. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if 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, which the court or tribunal has come to.” 25 In view of aforesaid discussions and for the reasons stated hereinabove, the instant petition, being devoid of any merit, deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. (Romesh Verma) 9th April, 2026 Judge (pankaj)