Extracted from the PDF above. The PDF is authoritative.
2026:HHC:39161 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.
: 649 of 2025 Decided on
: 10.09.2026 Rajeev Kumar & Others …Petitioners Versus Shyam Singh & Others …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Y.P. Sood & Mr. Praveen Chauhan, Advocates. For the respondents : Mr. Uday Singh Banyal,
Advocate, for respondent No.1 and 2. Virender Singh, Judge (Oral) Petitioners have filed the present petition, under Article 227 of the Constitution of India, against the order dated 18.08.2025, passed by the Court of learned Additional District Judge(1), Kangra at Dharamshala, District Kangra, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Miscellaneous Appeal No. 8 DXIV/2024, titled as ‘Rajeev Kumar & Others versus Shyam Singh & Others’. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of order dated 18.08.2025, the learned First Appellate Court has dismissed the appeal preferred by petitioners. The said appeal was preferred by them against the order dated 21.03.2024, passed by the Court of learned Civil Judge, Court No.1, Dharamshala, District Kangra (hereinafter referred to as ‘the trial Court’), in CMA No.187 of 2023, titled as ‘Shyam Singh & Another versus Rajeev Kumar & Others’.
3. By way of order dated 21.03.2024, the learned trial Court has allowed the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’) and directed the parties to maintain status quo, qua the nature, construction and possession of the suit land till the disposal of the suit.
4. Parties to the present lis are hereinafter referred to, in the same manner, in which, they 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 record, may be summed up, as under:
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5.1. Plaintiffs have filed the suit for permanent prohibitory injunction with a prayer to restrain the defendants, their relatives, servants, family members, masons, employees and assignees etc., from interfering in the land, raising construction over the suit land and changing the nature of the suit land by digging the same, cutting any trees standing thereon and collecting building material, raising any type of construction temporary or permanent thereon, comprising in Khata No.18, Khatauni Nо.28, 29, 30, 31, 32, Khasra No. 8, 13, 10, 7, 9, area measuring 008794 Hects situated at Mohal Bhatehar, Patwar Circle Sheela, Tehsil Dharamshala, Distt. Kangra H.P. (hereinafter referred to as the suit land). In addition to this, relief of mandatory injunction has also been sought, directing the defendants to restore the suit land into its original position and nature, in case, they succeed to change the same, illegally and forcibly during the pendency of the present suit. 5.2. According to the plaintiffs, the suit land is jointly owned by the plaintiffs along with defendants with
4 2026:HHC:39161 other cosharers, however, they have asserted their status as ownersinpossession of the suit land. 5.3. According to the plaintiffs, defendants are head strong persons and defendant No.4 & 5 raised shops and other construction by occupying the land, more than their share of front side. Similarly, defendant No.6 also raised construction of college, by occupying front portion of the suit land, whereas, the land falling in the share of plaintiffs is lying vacant and defendants No.1 to 3, put iron gate and started construction in the suit and and also other defendants have started to raise construction of boundary walls and trying to occupying almost the front side of the suit land. 6. On the basis of the above facts, the relief, as claimed in the plaint, has been sought. 7. When put to notice, the suit has been contested by the defendants. 8.
Defendants No.1 to 3 have filed their joint written statemen,t by taking the preliminary objections, that the suit is not maintainable; the plaintiffs have estopped to file the present suit on account of their own act
5 2026:HHC:39161 and conduct; plaintiff on account of mutual partition never objected to the construction raised by father of defendants No.1 and 2 and husband of defendant No.3, who by spending huge amount of money have raised more than 7/8 feet high retaining wall over the land, which he obtained in mutual partition and constructed a Tin roofed house; the suit of the plaintiffs is barred on account of their act, conduct and acquiescence, as plaintiffs allowed all other cosharers to raise construction even when objected to and pointed out by the defendants in replies to applications under Order 39 Rule 7 CPC and Section 151 CPC and the plaintiffs filed another suit, titled as Shyam Singh versus Servjeet, which, according to them, is persuaded with snails pace, as till date, service has not been got affected upon the defendants; the plaintiffs have suppressed material facts from the Court; the plaintiffs have no cause of action; and the plaintiffs have no locus standi to file the present suit. 9. On merits, the suit has been contested by pleading that the suit has already been mutually partitioned amongst all the cosharers and all the co
6 2026:HHC:39161 sharers are in separate possession and have developed the plots falling in their shares, as per their wish, without objections of any cosharers. It has been admitted that defendants No.4 and 5 has raised constructions of shops and defendant No.6 has constructed big building having four storeys, in which college is running in the name of Awasthi College. It has also been admitted that defendants No.1 and 2 have put iron gate about 2025 years back, when he started work of supply of construction material. 9.1. It is the further case of the defendants No.1 to 3 that they have raised 810 feet retaining wall and developed their plots, by spending huge amount of money and constructed two rooms having its tin roof. At that time, the plaintiffs or any other cosharers raised no objection. 10.
Defendant No.4, has filed separate reply, by pleading that plaintiff No.1 is cosharer to the extent of 3/384 share, out of 192 share, area measuring 00068 hectares, in the suit land measuring 08794 hectares and plaintiff No.2 is the cosharer to the extent of 1/192 share,
7 2026:HHC:39161 area measuring 000046 hectares in the suit land measuring 08794 hectares. 10.1. Admitting the fact that the suit land is joint only in the revenue record, according to defendant No.4 every cosharer is in separate possession on the spot. 11. Plaintiffs filed replication to the written statements filed by the defendants, by denying the preliminary objections, as well as the allegations, upon which the suit has been contested. 12. Along with the suit, application, under Order 39 Rules 1 and 2 CPC, has also been filed with a prayer to restrain the defendants from interfering in the suit land, raising any sort of construction, changing the nature, cutting any trees and collecting building material, over the suit land, during the pendency of the lis. 13. This application has also been contested on the similar grounds, upon which, the main suit has been contested. 14. The learned trial Court, after hearing learned counsel for the parties has allowed the application, as
8 2026:HHC:39161 referred to above and the said order has unsuccessfully been assailed before the learned First Appellate Court. 15. Now, the unsuccessful defendants No.1 to 3 have assailed the said order, before this Court, under Article 227 of the Constitution of India, on the ground that both the Courts below have committed grave illegality and material irregularity, as both the Courts below have failed to appreciate the pleadings of the parties. 16.
According to the petitionersdefendants No.1 to 3, the status quo order has been passed by the learned trial Court merely on the basis of the fact that the suit land is recorded as joint in the revenue record, but, both the Courts below have failed to appreciate the fact that the entries in the revenue record did not reflect the factual position of the spot, in view of the specific stand taken by the parties in their pleadings, according to which, the suit land has mutually been partitioned amongst all the co sharers and thereafter, the cosharers have raised construction on the spot. 17. It is the further case of the petitioners defendants No.1 to 3 that the relief has wrongly been
9 2026:HHC:39161 granted to the plaintiff ignoring the fact that merely because a cosharer is raising construction does not entitle the other cosharer to seek injunction. 18. The findings have further been assailed on the ground that the learned trial Court has failed to appreciate the fact that the house of petitioners is existing there on the spot, which was constructed about 2030 years ago from the date of filing the suit. 19. The findings have further been assailed on the ground that the one of the cosharers has raised a big building and is runnig a B.Ed. College, and the said construction was raised without any objection, as such, according to defendant No.1, plaintiffs are not entitled to the relief, as claimed in the application. 20. On the basis of the above facts, Mr. Y.P. Sood, Advocate, appearing for petitonersdefendants No.1 to 3, has prayed that the present petition may kindly be allowed, by setting aside the order, passed by the learned trial Court and the application, under Order 39 Rules 1 and 2 CPC, may kindly be dismissed. 10 2026:HHC:39161
21. Per contra, Mr.
Uday Singh Banyal, Advocate appearing for the plaintiffs, has supported the order by arguing that the learned trial Court has rightly appreciated the stand taken by the parties, in their pleadings and the said order does not require any interference by this Court, as, under Article 227 of the Constitution of India, this Court can only interfere, when, it has been held that the
order passed by the learned trial Court suffers from perversity and the learned trial Court has wrongly exercised the jurisdiction vested in it or failed to exercise the jurisdiction vested in it. In the present case, the jurisdiction vested in the Court has been exercised properly. Hence, a prayer has been made to dismiss the petition. 22. Heard. 23. Admittedly, the parties to the lis are cosharers. In this case, it is the admitted position of fact that none of the cosharers has even bothered to file the suit for partition. So far as the plea of private partition, as taken by the defendants, in the present case is concerned, in the revenue record, the suit land is still joint, as depicted from
11 2026:HHC:39161 the perusal of Jamabandi, in which, in the column of possession against Khasra No.13, names of Shri Ashok Kumar and Smt. Veena Devi have been mentioned. Similarly, in the column of possession against Khasra No.10, names of Shri Mahinder Singh, Shyam Singh, Sheela Devi Surinder Singh, Jagtar Singh, has been mentioned, whereas, against Khasra No.7, names of Awasthi College Awasthi Educational Society, has been mentioned in the column of possession and in Khasra No.9, name of Kashmir Singh has been recorded. As such, at this stage, it cannot be said that the suit land is joint between the parties. 24. It is not the case of the defendants that they have moved application under Section 123 of the H.P. Land Revenue Act, for affecting the private partition in the revenue record. 25. Admittedly, none of the parties has bothered to file application for partition of the suit land. 26. In para 3 of the plaint, the plaintiffs have asserted the fact that defendant No.4 & 5 raised shops and other construction by occupying the land, more than their
12 2026:HHC:39161 share and defendant No 6 also raised construction of college by occupying front portion. Meaning thereby, the cosharers have already raised construction, without any objection raised by the plaintiffs. As such, defendants No.1 to 3 cannot be segregated by the plaintiffs at their sweet will. 27. Pleadings of the plaintiffs are too short to conclude, at this stage, that if the relief, as claimed, in the application, is granted to the plaintiffs, the same would amount to ouster of the other cosharers from the suit land.
Such type of plea has also not been taken by the plaintiffs in their suit. They have not asserted the fact that the defendants have no share in the suit land. 28. Situation would have been otherwise, had the plaintiffs filed suit seeking injunction, restraining the defendants from raising construction, changing the nature of the suit land, till the suit land is partitioned by metes and bounds. 29. Moreover, the defendants cannot be vexed twice; firstly, in the suit and secondly, in the partition
13 2026:HHC:39161 proceedings. The relief of injunction is equitable relief. The person, who is seeking equity must do equity. 30. At the cost of repetition, it can be said that the plaintiffs have not made any efforts to get the suit land partitioned and without making any efforts, they have dragged the defendants in the litigation, in which, a prayer has been made to restrain them from raising any sort of construction, even when they are held to be cosharers. 31. Considering
the
peculiar
facts
and circumstances of the present case, since the plaintiffs have already raised constructions over the suit land, the defendants cannot be restrained from raising the construction over the suit land. As such, the plaintiffs have miserably failed to make out a case, seeking injunction against the defendants from raising any sort of construction.
32. Consequently, this Court is of the view that the findings recorded by the learned trial Court are suffering from perversity and the learned trial Court has exceeded its jurisdiction, while deciding the application, without
14 2026:HHC:39161 considering the acts and conduct of the plaintiffs, in not moving the application, for partition of the suit land.
33. Accordingly, the present petition is allowed and the order dated 21.03.2024, passed by the learned trial Court, as upheld by the learned First Appellate Court, is set aside. Consequently, the application, under Order 39 Rules 1 and 2 CPC, is dismissed.
34. Pending miscellaneous application(s), if any, shall also stand disposed of.
35. Parties, through the learned counsel, are
directed to appear before the learned trial Court on 28th September, 2026, at 10.00 a.m.
36. 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 petition. Record be sent back immediately.
( Virender Singh ) September 10, 2026( ps ) Judge