1 2026:HHC:40627 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 111 of 2026 Decided on: 21.9.2026 Balbir Kaur & ors. … Petitioners Versus Rajeev Kumar & ors. …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. Digvijay Bisht, Advocate. For the Respondents : Mr. Gaurav Sharma, Advocate, for respondents No. 1 to 3. Ms. Narvada, Advocate, for respondent No. 4. Virender Singh, Judge (oral) Petitioners have filed the present petition, under Article 227 of the Constitution of India, against the order dated 30.12.2025, passed by the Court of learned Additional District Judge-II, Una, H.P. (hereinafter referred to as ‘the First Appellate Court’). 2. By virtue of order dated 30.12.2025, the appeal preferred by respondents No. 1 to 3, has been allowed by the learned First Appellate Court, and parties to the lis 2 2026:HHC:40627 were directed to maintain status quo, regarding any construction and dismantling of any superstructure, on the suit land, till the disposal of the suit. 3. The aforesaid appeal has been preferred by the respondents, against the order dated 06.10.2025 passed by the Court of learned Senior Civil Judge, Court No. 1, Una, District Una, H.P.,(hereinafter referred to as ‘the trial Court’), in an application under Order 39 Rules 1 and 2 CPC, which has been filed in Civil Suit, titled as, ‘Rajeev Kumar and Others versus Rakesh Kumar and Others. 4. By virtue of the order dated 6.10.2025, the learned trial Court has dismissed the application, under Order 39 Rules 1 and 2 of the CPC. 5. Parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 3 2026:HHC:40627 6. Brief facts, leading to filing of the present petition, before this Court, may be summed up, as under: The plaintiffs, Rajeev Kumar and others, have filed a suit for permanent prohibitory injunction, restraining the defendants, from changing the nature and character of the suit land, by using construction, or in any manner, causing any damage to the shop and khokha, and from taking forcible exclusive possession by ousting the plaintiffs and from alienating by way of sale, gift, or in any manner, any specific portion with specific tatima, out of the land measuring 00-08-51 hectares, comprised in khewat No.136, khatoni No. 274, kita No. 27/41, as entered in the jamabandi, for the year 2021- 2022, situated in Mohal Nangal Jatpur, Tehsil Nadaun, District Una, H.P., (hereinafter referred to as ‘the suit land’), in final partition, and in the alternative, suit for possession, damages, and cancellation of sale deed, if the defendants succeed in causing damage to the shop and khokha. 4 2026:HHC:40627 6.1 The suit land is stated to be jointly owned by the plaintiffs and defendants. The suit land is also stated to be valuable in nature and situated on the main road. According to the plaintiffs, over the part of the suit land, shops and khokha (temporary shop) have been raised by the plaintiff. Defendants are other co-sharers. The suit land has not been partitioned, among the co-sharers, by metes and bounds. As such, no co-owner or co-sharer, in exclusive, has any exclusive right, over the suit land to change the nature and character, by raising construction. 6.2 Along with the application, under Order 39 Rules 1 and 2 of the CPC has been filed, with a prayer to restrain the defendants from changing the nature and character by using construction or, in any manner, causing any damages to the shop/khokha, from taking forcible exclusive possession, by ousting the applicants and from alienating by way of sale, gift, or, in any manner, any specific portion, with specific tatima, during the pendency of the trial. 5 2026:HHC:40627 7. When, put to notice, the suit, as well as, the application, has been contested by the defendants, by filing written statement, in which they have taken preliminary objections that suit is not maintainable, the plaintiffs have suppressed the material facts, the plaintiffs have no cause of action, and the plaintiffs have recently purchased a small share in the joint holding. 8. On merits, the suit has been contested on the ground that defendants are in exclusive possession of the western part of the suit land and have constructed 8 shops, since 2006. The factual position, with regard to the fact that the suit land has not been partitioned, has also been denied. 8.1 According to the defendants, Sajjan Singh, father of plaintiff No. 1 and Kashmir Chand, father of plaintiff No. 3 filed similar suit pertaining to the suit land, in the Court of learned Civil Judge, Court No. 1, Una, which was dismissed on 11.8.2015. Thereafter, Sajjan Singh and others have filed Civil Appeal No. 17 of 2015, in the Court of learned District Judge, Una, and the same was also dismissed on 26.2.2016. Another Civil Suit No. 296 6 2026:HHC:40627 of 2020, titled as, ‘Sajjan Singh versus Rakesh Kumar & others’ of the same land is pending adjudication in the Court of learned Civil Judge, Court No.III and is pending for 18.12.2025. Another Civil Suit No. 388 of 2025 is pending and fixed for 18.9.2025. The plaintiffs, in connivance with Sajjan Singh and Kashmir Chand, are trying to take forcible possession of the best portion of the suit land, under the garb of the present suit. 9. Defendants No. 4 and 5 have filed separate written statement, taking preliminary objections, that the suit is not maintainable; the plaintiff has no enforceable cause of action to file the suit; the plaintiff has no locus standi to file the present suit; and the plaintiffs are not entitled to relief of mandatory injunction, as prayed; the plaintiffs have suppressed the material facts, from the scrutiny of the Court; the suit is barred by principle of resjudicata. 9.1 On merits, it has been pleaded that the father of plaintiff No. 1 himself started raising construction, in the month of December, 2014, over the part of the suit land, and defendant No. 5 filed suit for permanent prohibitory 7 2026:HHC:40627 injunction, against the father of plaintiffs No. 1 and 3, which is decided by the Court of learned Civil Judge, Court No. 3, Una, vide judgment and decree, dated 25.7.2023, by virtue of which, father of plaintiffs No. 1 and 3 was restrained from causing any sort of interference/encroachment by raising any sort of construction or to dispossess the plaintiff. 9.2 According to defendants No. 4 and 5, the temporary shed/shops have been raised by the plaintiffs. 10. On the basis of above facts, application under Order 39 Rules 1 and 2 CPC, has been sought to be dismissed. 11. The learned trial Court, after hearing learned counsel for the parties and after going through the record, has dismissed the application under Order 39 Rules 1 and 2 CPC, vide order dated 6.10.2025. 12. The said order has been assailed by the plaintiffs, before the learned First Appellate Court. The learned First Appellate Court has allowed the appeal, by directing the parties to maintain the status quo. 8 2026:HHC:40627 13. The order passed by the learned First Appellate Court has been assailed by the defendants, by filing the present petition. 14. The learned trial Court has exercised its jurisdiction, by considering the fact that the suit land has not been partitioned, between the parties and efforts have not been made by the plaintiffs to get the suit land partitioned. 15. The learned trial Court, after considering the rival contentions of the parties has held that the plaintiffs are not able to make out a prima-facie case for grant of injunction. The balance of convenience is also not in favour of plaintiffs, which cannot be adequately compensated, in terms of money. 16. The said findings have been set aside by the learned First Appellate Court, without holding the fact that the order passed by the learned trial Court, is suffering from any perversity. 17. Once, discretion has been exercised by the learned trial Court by dismissing the application, under Order 39 Rules 1 and 2 CPC, then, the learned First 9 2026:HHC:40627 Appellate Court could not have interfered with the order, so casually, that too, without recording the findings that the learned trial Court has fallen into error, in not passing injunction order, in favour of the plaintiffs. 18. In the absence of any such findings, the learned First Appellate Court has fallen into error, by accepting the stand of defendants No. 1 to 3 that they are in exclusive possession over the western part of the land, upon which, 8 shops have been constructed. However, the learned trial Court has not considered the fact that the plaintiffs have not made efforts to get the suit land partitioned and by filing suit for permanent prohibitory injunction, that too, without making any effort to get the suit and partitioned, the plaintiffs want to vex the defendants twice, firstly, by filing the suit for permanent prohibitory injunction, and secondly, in the proceedings for partition of the suit land. Since, the relief of injunction is an equitable relief, and without making any efforts to get the suit land partitioned, the plaintiffs are not entitled for the equitable relief, which has rightly been declined to them, by the learned trial Court. 10 2026:HHC:40627 19 Considering all these facts, the learned First Appellate Court had fallen into error, by ignoring the reasons, recorded by the learned trial Court, in dismissing the application, under Order 39 Rules 1 and 2 CPC. 20 After considering all these facts, the present petition is allowed, by setting aside the order, passed by the learned First Appellate Court, dated, 30.12.2025. Consequently, the application under Order 39 Rules 1 and 2 CPC is dismissed. 21. The pending application(s), if any, are also disposed of. 22. Parties, through their counsel, are directed to appear before the learned trial Court on 7.10.2026, at 10:00 a.m. 23. 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) 21.9.2026 Judge Kalpana 11 2026:HHC:40627