Extracted from the PDF above. The PDF is authoritative.
2026:HHC:14201 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP No. 21855 of 2025 in RSA No. 246 of 2015 Reserved On : 06.04.2026 Decided on : 30.04.2026 Ishwari Nand …Appellant/Nonapplicant. Versus Tara Chand & Ors. …Respondents/Applicants. The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the appellants : Mr. Neeraj Gupta, Senior Advocate, assisted by Mr. Harshit Sharma, Advocate. For the respondents : Mr. Rohit, Advocate, for respondents No. 1 to 3/applicants. Mr. Sumit Sharma, Advocate, for respondent No. 4. Virender Singh, Judge The present application has been filed under the provisions of Sections 94(b) and 151 CPC, read with
Order 41 Rule 5 sub rules (3) and (5) of CPC, by the decree holder (respondents No. 1 to 3), seeking the following relief: 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2026:HHC:14201
“It is, therefore, prayed that this application may very kindly be allowed and the appellant be ordered to pay to the DH or deposit use and occupation charges or mesne profits at the rate of Rs. 5,00,000/ per annum from the date of decree till delivery of possession of the suit land to the DH or such other
order as this Hon’ble Court deems fit and proper in the facts and circumstances of the case be also passed on this application in the ends of law and justice.”
2.
Brief facts, leading to the filing of the present application, may be summed up, as under: 2.1 AppellantIshwari Nand has filed the present appeal under Section 100 of CPC, against the judgment and decree, dated 16.01.2015, passed by learned Additional District Judge(1), Shimla, H.P., Camp at Rohru, (hereinafter referred to as “the First Appellate Court’), in Civil Appeal No. 24R/13 of 2007, titled as “Ishwari Nand & Anr. Versus Tara Chand & Ors.”. 2.2 By way of judgment and decree dated 16.01.2015, learned First Appellate Court has dismissed the appeal of appellant Ishwari Nand and proforma respondent No. 4, bearing Civil Appeal No. 24R/13 of 2007, which has been filed against the judgment and decree, dated 30.10.2007, passed by the Court of learned Civil Judge (Jr. Div.), Court No. 2, Rohru, District Shimla, H.P. (hereinafter referred to as “the trial Court”), in Civil
3 2026:HHC:14201 Suit No. 65/1 of 2005, titled as “Tara Chand & Ors. Versus Ishwari Nand & Anr.”. 2.3 By way of the judgment and decree dated 30.10.2007, the learned trial Court has decreed the suit of respondents No. 1 to 3 and granted the following reliefs. Para 72 of the judgment, is reproduced as under:
“72. In view of my findings on aforesaid issues No. 1 to 7, suit filed by the plaintiffs is decreed with costs. As result of decreeing the suit of the plaintiffs, they are held to be successors of deceased testator, Shiv Lal and Will dated 27.12.1997 and subsequent mutation No. 28 having been attested on the basis of such Will and revenue entries in the revenue record having been made, on the basis of Will and aforesaid mutation are held to be wrong, void and without any basis besides being inoperative against the right, title or interest of the plaintiffs. This apart, plaintiffs are also held entitled to the possession of the suit land i.e. Khasra Nos. 119, 175, 428, 429, 538, 176, 1057, 177, 243, 559, comprised in K.K. No. 13/17, situated in chak Shiladesh, Tehsil Chirgaon, District Shimla, H.P. Let decree sheet be drawn accordingly. The file, after due completion, be consigned to the record room.” 2.4 The instant appeal has been admitted for hearing.
By way of the present application, a prayer has been made that the appellant is in illegal possession of the land, as such, he is liable to pay use and occupation charges, at the rate of Rs. 5,00,000/ per annum, from the date of decree dated 30.10.2007, till date and during the pendency of the appeal. 4 2026:HHC:14201
3. This application has been contested by appellant Ishwari Nand, by filing reply, taking preliminary objection that the application is not maintainable, as the use and occupation charges cannot be claimed by way of the present application. 3.1 Contesting the application on merit, it has been pleaded that the claim of the applicant for use and occupation charges from the date of decree is not tenable, as the application has been filed at a belated stage, whereas, appeal is pending in this Court, since 2015. 3.2 According to the appellant/nonapplicant the applicant has concealed the material fact qua passing of the order dated 15.11.2007, by the learned First Appellate Court, in which, use and occupation charges have been assessed as Rs. 5,000/ per crop. In this regard, the non applicant has relied upon the order dated 15.11.2007, passed by the learned First Appellate Court, which has been annexed with the reply. 4. In the rejoinder, the stand taken by the non applicant has been controverted by the applicant and the
order passed by the learned First Appellate Court has been
5 2026:HHC:14201 stated to be unjust, arbitrary and contrary to the factual position.
5. By way of the order dated 15.11.2007, the learned Additional District Judge (1), Shimla, H.P. (Camp at Rohru), has directed the appellant/nonapplicant Ishwari Nand to deposit Rs. 5,000/ mesne profit, at the rate of Rs. 5,000/ per crop.
6. Whenever, a party is moving an application, seeking the relief, before the Court, it is expected from such party, to mention all the material facts, in the application.
7. In the present case, the applicant has made a futile attempt to conceal the facts, recorded in order dated 15.11.2007, by the learned First Appellate Court, fixing the mesne profit, at the rate of Rs. 5,000/ per crop, without any justification.
8. Admittedly, the order dated 15.11.2007, has not been assailed by the applicant. Although, a futile attempt has been made to challenge the said order in the rejoinder by pleading that the said order is unjust, however, when, nothing has been said against the order in
6 2026:HHC:14201 the application itself, then, in the replication, the said
order cannot be attacked by the applicant in the rejoinder.
9. Considering the above facts, the application is
disposed of, by directing the nonapplicant/appellant to deposit mesne profit, at the rate of Rs. 5,000/ per crop, from the date of passing of the judgment by the learned trial Court, till date and during the pendency of the appeal. Arrears be deposited within a period of three weeks, from today. The said amount be deposited in the shape of FDR and entitlement of the same will be decided at the time of final hearing of the case. The amount, if any, already deposited is liable to be adjusted.
10. Application stands disposed of accordingly.
11. 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. RSA No. 246 of 2015 List for hearing on 25.05.2026.
(Virender Singh)
Judge 30th April, 2026 (Pramod Kumar)