Extracted from the PDF above. The PDF is authoritative.
2026:HHC:40083 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. : 264 of 2026 Decided on : 09.09.2026 Balbir Singh
…Petitioner Versus Sher Chand & Ors. …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Dibender Ghosh,
Advocate. For the respondents : Mr. Lokesh Thakur, Advocate, vice Mr. G.R. Palsra, Advocate, for respondents No. 1 to 6. Mr. Tejasvi Sharma, Mr. H.S. Rawat, Additional A.Gs., with Mr. Rohit Sharma, Deputy A.G., for respondents No. 7 and 8.
Virender Singh, Judge (Oral) PetitionerBalbir Singh, has filed the present petition under Article 227 of the Constitution of India, against the judgment dated 28.02.2026, passed by the Court of learned District Judge, Kullu, District Kullu, H.P. (hereinafter referred to as ‘the first appellate Court’), in 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2026:HHC:40083 Civil Misc. Appeal No. 11 of 2025, titled as “Balbir Singh Vs Sher Chand and others”.
2. By way of the judgment dated 28.02.2026, the learned first appellate Court has dismissed the appeal preferred by the petitioner, against the order dated 08.08.2025, passed by the learned Senior Civil Judge, Lahaul and Spiti at Keylong, H.P. (hereinafter referred to as ‘the trial Court’), in CMA No. 160 of 2024, filed under
Order 39 Rules 1 and 2 CPC, which has been filed in Civil Suit titled as “Sher Chand & Ors. Vs Balbir Singh & Ors.”.
3. Vide order dated 08.08.2025, the learned trial Court has partly allowed the application filed under Order 39 Rules 1 and 2 CPC, by respondents No. 1 to 6 (plaintiffs), and petitioner Balbir Singh (defendant No. 1 in the suit) has been restrained from causing any type of obstruction in the road, constructed by respondents No. 7 and 8 (defendants No. 2 and 3 in the suit) through the suit land i.e. land measuring 010700 bighas, comprised in Khasra No. 93, contained in Khata Khatauni No. 51min/58min, as incorporated in the jamabandi for the year 201718, situated in Muhal Nalda, Tehsil Udaipur,
3 2026:HHC:40083 District Lahaul & Spiti, H.P., till the disposal of the main suit.
4. For the sake of convenience, 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 The plaintiffs have filed the suit for mandatory injunction directing defendant No. 1 to remove the obstruction created over the motorable road known as Pvmda to Bhadar Kuth in Tehsil Udaipur, District Lahaul Spiti, leading/existing over the land of defendant No. 1, comprised in Khasra No. 93, Khata Khatauni No. 51min/58min, as incorporated in the jamabandi for the year 201718, situated in Muhal Nalda, Tehsil Udaipur, District Lahaul & Spiti, H.P., which according to them has been constructed by defendants No. 2 and 3, under MNREGA scheme, in the year 201314 and handed over to the public in the year 2018. In addition to this, the plaintiffs have also sought the relief of permanent
4 2026:HHC:40083 prohibitory injunction, restraining defendant No. 1, from causing any kind of interference or obstruction over the road known as Pymda to Bhadarkuth in Tehsil Udaipur, District Lahaul & Spiti, H.P. and also from preventing the plaintiffs from using the said road. 5.2 The said suit has been filed on the ground that the land measuring 010700 bighas, comprised in Khasra No. 93, contained in Khata Khatauni No. 51min/58min, as incorporated in the jamabandi for the year 201718, situated in Muhal Nalda, Tehsil Udaipur, District Lahaul & Spiti, H.P. (hereinafter referred to as ‘the suit land’), is jointly owned and possessed by defendant No. 1 and others. Defendant No. 1 is having ½ share in the suit land and remaining land was owned by other cosharers. The village road known as Pymda to Bhadar Kuth, is existing over the suit land and the lands of the plaintiffs and others, which was constructed by defendants No. 2 and 3, under the MNREGA scheme and same has been given to the villagers for use in the year 2018. 5.3 For construction of the said road, the land owners along with one Hira Devi, had given their no objections, if the road is constructed through their lands
5 2026:HHC:40083 for the benefit of all the villagers. The concerned Gram Panchayat had also passed resolution in this regard, which was signed by defendant No. 1. Thereafter, construction work was started in the year 201314 and completed prior to 2018.
5.4 Said Hira Devi, on 04.06.2022, gave her affidavit for having no objection for the road having been constructed through her share of the land in the suit land and the plaintiffs have been using the said road for their egress and ingress and plying their vehicles through the said land for all purposes and intents without any objection and interference. In the last week of May, 2022, defendant No. 1 filed a suit for permanent prohibitory injunction, against the plaintiffs, restraining them from causing any sort of interference in the peaceful ownership and possession of defendant No. 1 over the suit land and also raising construction of the road. Alongwith the suit, defendant No. 1 also filed an application under Order 39 Rules 1 and 2 CPC, which was partly allowed by learned Senior Civil Judge, Lahaul & Spiti at Kullu, H.P., vide order dated 09.11.2023 and the plaintiffs were restrained from
6 2026:HHC:40083 causing any sort of interference over the suit land and raising any construction of the road. 5.5 According to the plaintiffs, defendant No. 1 has procured the said interim order by concealment of facts, as aforesaid road has been constructed in the year 201314 and the same has been in use since 2018, and for the same, Hira Devi, one of the cosharer, has also given no objection. Even, defendant No. 1 before the Panchayat had consented for the same. But, defendant No. 1 has filed the suit and the application under Order 39 Rules 1 and 2 CPC, by concealment of true facts regarding construction of the said road. 5.6 Under the garb of the order, defendant No. 1, on 15.12.2023, has blocked the aforesaid road at point of the suit land by raising danga thereon, thereby obstructed the vehicles of the plaintiffs and also obstructed and prevented them to ply their vehicles through this road. 5.7 On the basis of the above facts, a prayer has been made to allow the suit. 6.
Along with the suit, application under Order 39 Rules 1 and 2 CPC, was also filed, seeking the relief that during the pendency of the suit, defendants may be
7 2026:HHC:40083
directed to remove the obstruction from the public road leading through the part of the suit land. 7. On the grounds, as taken in the written statement, the application under Order 39 Rules 1 and 2 CPC has also been contested. 8. The learned trial Court, vide order dated 08.08.2025, partly allowed the application under Order 39 Rules 1 & 2 CPC, by restraining defendant No. 1, from causing any type of obstruction in the road, constructed by defendants No. 2 and 3 through the suit land. 9. Aggrieved from the said order, defendant No. 1 had preferred the Civil Misc. Appeal, before the learned first appellate Court. His appeal was dismissed by the learned first appellate Court, vide order dated 28.02.2026. 10. Aggrieved from the said order, present petition has been preferred, before this Court, mainly on the grounds, that the plaintiffs have no locus standi to file the suit against defendant No. 1 and the learned Courts below have erred in granting injunction order in favour of the plaintiffs. It is the further case of defendant No. 1 that both the Courts below, have failed to consider the fact that
8 2026:HHC:40083 without acquiring the land in accordance with law, the state cannot construct a public road over the suit land. 11. Highlighting the fact that both the Courts below, have not considered the fact that defendant No. 1 had already filed the suit against the plaintiffs. According to the petitionerdefendant No. 1, the suit filed by the plaintiffs was not maintainable. 12. On the basis of above facts, Mr. Dibender Ghosh, Advocate, for defendant No. 1, has prayed that the appeal may kindly be allowed, by setting aside the order passed by learned trial Court, on 08.08.2025, as upheld by learned first appellate Court, vide judgment dated 28.02.2026 and application under Order 39 Rules 1 and 2 CPC, may kindly be dismissed. 13. Per contra, Mr. Lokesh Thakur, Advocate, vice Mr. G.R. Palsra, Advocate, for the plaintiffs, has prayed that under the limited jurisdiction, this Court cannot interfere with well reasoned order by the learned trial Court, as upheld by learned first appellate Court. 14. Similar prayer has been made by Mr. Tejasvi Sharma, learned Additional Advocate General, for respondents No. 7 and 8 and it has been prayed that
9 2026:HHC:40083 petition sans merits and the same may kindly be dismissed. 15.
As per the documentary evidence adduced on the file, defendant No. 1 Balbir Singh has already filed the suit for permanent prohibitory injunction, against the present plaintiffs on 27.05.2022, with the following prayer:
“It is, therefore, prayed that the suit of the plaintiff is liable to be decreed and the same may be decreed by awarding the following reliefs in favour of the plaintiff that: Reliefs: (i) The defendants may be restrained from causing any sort of interference in the peaceful ownership and possession of the plaintiff over the land measuring 170 bighas, comprised in Khasra No. 93, contained in Khata No. 51min of Khatauni No. 58min, which is in the ownership and possession of the plaintiff to the extent of ½ shares i.e. 001310 bigha as incorporated in jamabandi for the year 201718 of muhal Nalda, Tehsil Udaipur, District Lahaul & Spiti, H.P., by raising construction of a road named BhaderKhutu road, and the defendants, being strangers to the same are having no right, title or interest over the said land. (ii) The suit may be decreed with costs throughout. (iii) any other relief to which the plaintiff is found entitled in the facts and circumstances of the case, the same may also be awarded in favour of the plaintiff in the interest of justice.”
16. In the said suit, defendant No. 1 has also filed application under Order 39 Rules 1 and 2 CPC, which was
10 2026:HHC:40083 allowed by the learned trial Court, on 09.11.2023, restraining the plaintiffs, who were arrayed as respondents, from causing any sort of unlawful interference and from constructing the road from the suit land, till the final disposal of the main suit. 17.
The present plaintiffs instead of assailing the said order, or getting the same modified or vacated, had adopted a novel idea by filing the suit for mandatory injunction, seeking directions to defendant No. 1, who had already filed a civil suit, against the plaintiffs, to remove the obstruction created over the motorable road, known as Pymda to Bhadar Kuth road in Tehsil Udaipur. The plaintiffs could seek the relief, as claimed in the suit, in the earlier instituted suit by filing the counter claim, or by moving an application under Order 39 Rule 4 CPC, for the alleged change in circumstances. The effect of filing the earlier suit has neither been considered by learned trial Court, vide order dated 08.08.2025, nor the learned first appellate Court has bothered to consider the intricacy of the relief granted in favour of defendant No. 1, in the earlier instituted suit. 11 2026:HHC:40083
18. At the time of deciding the application, under
Order 39 Rules 1 and 2 CPC, the learned trial Court should not have swayed away by the pleadings of the plaintiffs. The learned trial Court was bound to consider the fact that in the earlier instituted suit, filed by defendant No. 1, an injunctive order has already been passed against the present plaintiffs. When the earlier suit was pending, then the proper course for the plaintiffs, was to file the application for modification of the order, or challenging the same before the High Court. As such, this Court is of the view that when the plaintiffs are not entitled for the final relief, then the learned trial Court has wrongly granted the interim relief to them.
19. Consequently, the orders passed by learned trial Court and learned first appellate Court, suffer from perversity. In other words, it can be said that the learned trial Court and learned first appellate Court have erred by entertaining the suit, despite the fact that an earlier suit was pending, between the parties to the lis.
20. Accordingly, the petition is allowed, the order dated 08.08.2025, passed by the learned trial Court, as upheld by learned first appellate Court, vide judgment
12 2026:HHC:40083 dated 28.02.2026, is set aside. Consequently, the application under Order 39 Rules 1 and 2 CPC is dismissed.
21. 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.
22. Pending application(s), if any, shall also stand(s)
disposed of.
23. Record be sent back.
(Virender Singh) 9th September, 2026
Judge (Pramod Kumar)