1 2026:HHC:39617 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 708 of 2023 Decided on: 14.9.2026 Kamla Devi … Petitioner Versus Kiran Kumari …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. Sative Chauhan, Advocate. For the Respondents : Mr. Narender Guleria, Advocate. Virender Singh, Judge (oral) Petitioner Kamla Devi has filed the present petition, under Article 227 of the Constitution of India, against the order dated 8.9.2023, passed by the Court of learned Civil Judge, Karsog, District Mandi, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Miscellaneous Application No. 115 of 2023, titled as, ‘Kirna Kumari versus Kamla Devi’. 2. By way of order dated 8.9.2023, the learned trial Court has party allowed the application, under Section 2 2026:HHC:39617 151 CPC, moved by the present petitioner, who has been arrayed as defendant, in the lis, by permitting the petitioner to carry out necessary repair/construction, in dwelling house, existing over the suit land. 3. Vide order dated 8.9.2023, the learned trial Court has partly allowed the application, to the extent of making repair/construction, in the ground floor and slab of the septic tank, which is used as floor of kitchen. The Trial Court has specifically declined the permission to carry out the repair of shop. 4. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 5. Necessary facts, as borne out from the documents, annexed with the petition, may be summed up, as under: Plaintiff Kiran Kumari has filed a suit for permanent prohibitory and mandatory injunction on the ground that the land bearing Khata/Khatoni No. 291/375, Kitta No. 4, measuring 00-13-01 bigha, situated in Mohal Churag/242, Tehsil Karsog, District 3 2026:HHC:39617 Mandi (hereinafter referred to as suit land) is recorded in the ownership of the defendant and other co-sharers, as per Jamabandi for the year 2018-19, and the same is in the physical possession of the plaintiff, defendant, and other co-sharers. 5.1 The plaintiff and defendant are daughters of late Shri Keshav Ram, who has executed Will No. 128 on 21.6.2007. Thereafter, on 20.12.2012, Keshav Ram expired and the mutation of the land was not entered as per the Will, as their brother had challenged the Will, by way of Civil Suit No. 39 of 2013. 5.2 On the basis of the above facts, it has been asserted that due to the said challenge, name of the plaintiff could not be recorded in the column of ownership of the revenue record, whereas, name of defendant was recorded in the column of ownership and possession, on the basis of family settlement, executed by the father of the parties to the lis. 5.3 It is the further case of the plaintiff that over the portion of the suit land, there is an old house constructed by the father of the parties to the lis and 4 2026:HHC:39617 some portion of the same was lying vacant. From 25.4.2021, defendant has started the construction of her house, over the vacant portion of the suit land, and on 30.4.2021, the plaintiff got vacated the shop from the tenant, as she wants to run her own business, but defendant had thrown her goods and proclaimed that she will not allow her to do any business, in the said premises. 5.4 On the basis of the above facts, the plaintiff has sought the relief for permanent prohibitory injunction, restraining the construction over the suit land, and in addition to this, a relief of mandatory injunction has also been sought, directing the defendant to demolish the construction, if any, raised during the pendency of the lis. 6. When, put to notice, the suit has been contested by the defendant, by pleading that the defendant is not raising any fresh construction. According to her, a small portion of the old structure was damaged and was in a dilapidated condition, as such, the repair was necessary. She has asserted that she is in settled possession of the 5 2026:HHC:39617 suit land, after the death and even during the lifetime of Shri Keshav Ram, who had executed the Will dated 21/5/1995. 6.1 According to the defendant, suit of the plaintiff is not maintainable; she has no cause of action to file the suit; she is estopped to file the suit on account of her own act and conduct; and suit is bad for want of better particulars. 6.2 The possession of the plaintiff over the suit land has been disputed by asserting that the entire suit land is in possession of the defendant, and plaintiff is having no right over any part of the suit land. However, it has been admitted that the plaintiff and defendant are daughters of Shri Keshav Ram. 6.3 It is further the case of the defendant that as per the gift deed, executed by Shri Keshav Ram, in favour of the plaintiff, on 21.5.1995, she is owner in possession of land bearing 00-00-17 bighas of suit land. Other allegations have been controverted. Thus, a prayer has been made to dismiss the suit. 6 2026:HHC:39617 7. Along with the suit, the plaintiff has also filed an application under Order 39 Rules 1 and 2 of CPC, which was dismissed by the learned trial Court. 8. Thereafter, the said order was assailed by plaintiff Kiran Kumari, before the court of learned Additional District Judge-1, Mandi, District Mandi, H.P. The said appeal was allowed by passing the order to restrain the defendant from carrying out construction, over the suit land. 8. The said order was unsuccessfully assailed by defendant Kamla Devi, before this Court, however, her petition under Article 227 of the Constitution of India, was dismissed. The said order was, thereafter, assailed by way of Special Leave Petition, before the Hon’ble Supreme Court, but the same was again dismissed. However, liberty has been provided to the defendant to move the application, for carrying out repairs to the existing structure, by passing the following orders: “No case is made out to interfere with the impugned orders which are interim orders. However, if the petitioner wants to carry out repairs to the existing structure in her possession, she may make 7 2026:HHC:39617 necessary application to the trial Court in that behalf. If such application is made, the trial Court shall consider it in accordance with law as expeditiously as possible. Subject to the above clarification, Leave Petition is dismissed.” 9. Subsequently, the defendant has moved the application, under Section 151 CPC, which was partly allowed by the learned trial court, assailing which order, the defendant Kamla Devi has filed the present petition, before this Court, mainly on the ground that the learned trial court has wrongly exercised the jurisdiction vested in it, as the Hon’ble Supreme Court has also permitted the defendant to carry out repairs to the existing structure in her possession, asserting the need of urgent repair. The impugned order has further been assailed on the ground that the report of architect and the photographs clearly demonstrate that urgent repair was necessary, which was denied by the learned trial court. 11. On the basis of the grounds taken in the petition, Mr. Sative Chauhan, learned counsel, appearing for the defendant, has prayed that the present petition may 8 2026:HHC:39617 kindly be allowed by allowing the application under Section 151 of the CPC, filed by the defendant, before the learned trial court, and the order dated 8.9.2023 may kindly be modified accordingly. 12. Per contra, Mr. Narender Guleria, learned counsel, appearing for the plaintiff, has supported the order passed by the learned trial court and highlighted that the Hon’ble Supreme Court has also provided the window to the defendant only to carry out the necessary repair to the existing structure, which has been allowed by the learned trial court, but under the garb of application, under Section 151 CPC, the defendant wants to raise further construction of the house. As such, a prayer has been made to dismiss the petition. 13. Heard. 14. Perusal of the record shows that by way of application, under Section 151 CPC, the defendant has made a prayer before the learned trial court to permit her to carry out repair/reconstruction. The said prayer has been made on the ground that the dwelling house/structure has outlived its life. The building in 9 2026:HHC:39617 question is two-storeyed, situated in front of bus stop, Churag. The ground floor is being used as residence. On the first floor, there are two shops abutting to the road and on the back side of the RCC slab, columns have been built recently by the defendant. 15. According to the defendant, the walls of the ground floor are made of mud and stone and are likely to collapse. As such, she has sought the permission to repair the said wall and to raise construction over the existing structure. 16. Along with the application, she has also annexed the technical report of the architect, in which, it has been mentioned that in case, the repair is not allowed, the building may collapse. 17. This application has been contested by the defendant. The learned trial court thereafter, has considered the application and partly allowed the same, which has been assailed before this Court. 18. In this case, this Court vide order dated 21.7.2026, has directed the Executive Engineer (B&R), HP PWD, Karsog to visit the spot and submit a report. 10 2026:HHC:39617 Relevant Para 7 of the said report is reproduced as under: “In compliance with the order dated 21.07.2026 passed by the Hon'ble High Court of Himachal Pradesh, I visited and inspected the property in dispute on 10.08.2026 at 2:30 p.m. in the presence of both parties. On the basis of the spot inspection, it is observed that approximately 75% of the disputed property has been reconstructed with an RCC structure, besides the repair/renovation works carried out in the basement and the reconstruction of one shop on the ground floor, as detailed hereinabove. Only one shop on the ground floor was found to be in the old/existing condition, with no substantial repair or reconstruction work having been noticed therein. The geo-tagged photographs taken during the spot inspection are enclosed herewith as part of this report. The report is accordingly submitted before the Hon'ble High Court of Himachal Pradesh for kind perusal.” 19. The relief, which has been granted to the defendant, by the learned trial court, is confined only to the repair or reconstruction of the walls, which developed cracks in the ground floor and the slab of the septic tank, which is used as floor of the kitchen, and as per the report submitted by the Executive Engineer, HPPWD, the defendant has reconstructed 75% of the disputed property with RCC structure, which is in clear 11 2026:HHC:39617 violation of the directions of the Hon’ble Supreme Court, as referred to above, as Hon’ble Supreme Court has simply permitted the defendant to carry out repairs to the existing structure in her possession. 20. The term 'repair' and 'reconstruction' are not synonyms. When, the Hon’ble Supreme Court has specifically directed the defendant to move the application to carry out repairs to the existing structure in her possession, then, the window, which has been provided to her, by the learned trial court, has cleverly been misused by the defendant, as she has raised 75% of new construction over the subject matter of the lis. As such, she is not entitled for any relief. 21. Considering the above facts, the present petition is dismissed and the impugned order, passed by the learned trial Court is upheld. 22. It is further clarified that whatsoever reconstruction raised by the defendant, in violation of the directions of the learned trial court, would be subject to the final outcome of the lis, pending between the parties. 12 2026:HHC:39617 23. The pending application(s), if any, are also disposed of. 24. 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 application. (Virender Singh) 8.9.2026 Judge Kalpana