Manoj Gupta Vs Murari Lal Gupta and Another

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.330 of 2025 Reserved on: 26.02.2026 Decided on: 03.03.2026

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Manoj Gupta ….Petitioner Versus Murari Lal Gupta & another ...Respondents Coram

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Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting?

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For the petitioner:	Mr. Neeraj Gupta, Senior Advocate with
	Mr. Ajit Pal Singh Jaswal, Advocate.
For the respondents:	Mr. Nand Lal Thakur, Advocate.

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Romesh Verma, Judge

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The present petition arises out of judgment dated 07.05.2025, as passed by learned District Judge, Hamirpur, whereby the appeal as preferred by the defendants/respondents filed under Order 43 Rule 1(r) read with Section 151 of CPC was allowed and the order as passed by learned Civil Judge, Court No.3, Hamirpur, dated 3rd February, 2025, was set aside.

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Brief facts of the case are that the plaintiff/ petitioner filed a suit in the Court of learned Civil Judge,

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Court No.3, Hamirpur, on 14^th August, 2024, for issuance of permanent prohibitory injunction against the defendants/respondents, their agents, servants, assignees and family members from demolishing the old ancestral house consisting of two rooms, kitchen and courtyard, double storeyed thatched with tin sheets and further raising any sort of new construction thereupon which is situated in the land comprising Khata No.232, Khatoni No.325, Khasra No.779, measuring an area 121-75 Sq.mts. Hadbast No.47 situated in Up Mohal Partap Nagar Mouza Bajuri Tehsil and District Hamirpur, H.P. as per jamabandi for the year 2007-2008 forcibly without approval of site plan. It was averred in the plaint that the suit land measuring 121-75 Sq. Mts. along with old ancestral house, consisting of two rooms, kitchen and courtyard double storeyed thatched with tin sheets is joint between plaintiff and other legal heirs of deceased Smt.Kesri Devi.

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The defendants/respondents are head strong persons and have no respect for law, who with the object of grabbing the suit land more than their share without getting the suit land partitioned, have started giving unauthorized

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threats of demolishing the old ancestral house consisting of two rooms, kitchen and courtyard double storeyed thatched with tin sheets in the suit land and raising the new construction thereupon without approval of site plan and without the consent of the plaintiff and oher co-sharers. It was specifically averred in the plaint that the suit land along with two rooms, kitchen and courtyard double storeyed thatched within tin sheets is joint between the plaintiff/petitioner and other legal heirs of deceased Smt.Kesri Devi, which is evident from the mutation No.779 made with red ink in the remarks column of jamabandi for the year 2007-2008.

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Therefore, in this background, the plaintiff/petitioner sought decree of permanent prohibitory injunction against the defendants from restraining them from demolishing the old ancestral house and further raising any sort of new construction thereupon forcibly without approval of site plan and in violation of municipal bye laws. It was further prayed that in case, the defendants/respondents succeed in demolishing the old ancestral house, in that event, the original position of the suit land may be restored

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by removal of illegal construction by demolition and by passing a decree of mandatory injunction against the defendants.

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The suit was contested by the

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defendants/respondents on various grounds such as maintainability, estoppel, locus standi, cause of action and for non-joinder and mis-joinder of necessary parties, concealment of material facts etc. On merits, it was averred in the written statement that the plaintiff is estopped from filing the suit by his own act, deeds and conduct. It was averred that the plaintiff has failed to disclose the factum of execution of Will and further the plaintiff/petitioner has fraudulently by conniving with the field staff got entered the mutation of inheritance No.779 and Assistant Collector 2^nd Grade had passed the wrong order on the basis of the same and allotted land, including suit land in equal share. It was averred that said mutation No.779 and order passed by Assistant Collector 2^nd Grade have been challenged before Sub Divisional Collector and the appeal of the defendants/respondents was accepted by Sub Divisional Collector on 25.05.2015 and the case has been remanded

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back to Assistant Collector 2^nd Grade for his decision afresh.

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Later on, the said order was challenged before Divisional Commissioner, Mandi and the appeal filed by predecessorin-interest of plaintiff was dismissed. Not only this, revision petition bearing No.74 of 2017 was preferred by the predecessor-in-interest against the order of Divisional Commissioner, Mandi, but the said revision was also dismissed by Financial Commissioner (Appeals), Himachal Pradesh on 09.03.2023. Further, it has been averred that the defendants/respondents were only renovating the old house which is under their exclusive possession from very beginning and even the said house or said portion of the suit land has been allotted to defendant No.1 by virtue of execution of registered Will dated 26.10.1991. On these submissions, the defendants/respondents had prayed for dismissal of the suit.

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The plaintiff filed replication reiterating the contents as made in the plaint.

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The plaintiff/petitioner along with the suit filed an application under Order 39 Rules 1 and 2 read with Section 151 of CPC for restraining the defendants/respondents from

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demolishing the old ancestral house and further raising any sort of new construction over the suit land forcibly without approval of site plan and in violation of municipal bye laws till the suit land/property is partitioned finally through due process of law.

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The respondents filed the reply to the said application and all the averments, as made in the application, were refuted and it was specifically submitted that defendant No.1 is in exclusive possession of the said old dwelling house which is double storeyed and the same is under renovation because of the fact that the said portion of the suit property was given to defendant No.1 vide registered Will dated 26.10.1991 executed by late Smt.Kesri Devi before Sub Registrar, Hamirpur, which is last and final Will and it is binding upon the respective parties. Further, it was submitted that Mutation No.779 and the order, as passed by the Assistant Collector 2^nd Grade, on which the plaintiff is harping, has been set aside and the case was remanded back to the Assistant Collector 2^nd Grade for his decision afresh and the said order has been affirmed by the Divisional

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Commissioner and Financial Commissioner (Appeals), Himachal Pradesh.

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Learned trial Court vide its order dated 03.02.2025 while deciding the application under Order 39 Rules 1 and 2 of CPC had directed both the parties to maintain status quo concerning the nature, possession over the suit land during the pendency of the suit. Further, the defendants/respondents were specifically restrained from demolishing old dwelling house and from carrying out any other or further construction during the pendency of suit.

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Feeling dissatisfied, the defendants/respondents preferred an appeal in the Court of learned District Judge on 25.02.2025. Learned District Judge vide its judgment dated 7^th May, 2025 accepted the appeal preferred by the defendants/respondents and set aside the order dated 03.02.2025, as passed by learned Civil Judge, Court No.3, Hamirpur. Consequently, the application filed by the plaintiff under Order 39 Rules 1 and 2 of CPC was ordered to be dismissed.

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The present petition has been filed by the plaintiff/petitioner assailing the judgment, as passed by

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learned District Judge, Hamirpur, whereby the appeal preferred by the defendants/respondents has been accepted and the order of status quo, as passed by learned Civil Judge, Court No.3, Hamirpur, has been ordered to be set aside.

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I have heard Mr. Neeraj Gupta, learned Senior Counsel assisted by Mr. Ajit Pal Singh Jaswal, Advocate, for the petitioner and Mr. Nand Lal Thakur, Advocate for the respondents.

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It is contended by learned Senior Counsel for the plaintiff/petitioner that the judgment as passed by learned District Judge, Hamirpur is not sustainable in the eyes of law as he has not appreciated real point of controversy and had accepted the appeal preferred by the defendants/respondents in a mechanical manner. He further submits that in order to maintain balance between the parties, the order of status quo passed by learned trial Court is required to be restored during the pendency of the suit. He further submits that no loss shall be caused to either of the parties, in case both the parties are directed to maintain

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status quo qua nature and possession of the suit land/property during the pendency of suit.

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On the other hand, Mr. Nand Lal Thakur, learned counsel for the defendants/respondents defended the judgment as passed by learned District Judge, Hamirpur. He submits that learned District Judge has rightly appreciated the point in controversy and allowed the appeal filed by the defendants/respondents by setting aside the order as passed by learned Civil Judge, Court No.3, Hamirpur.

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From the perusal of the case file, it reveals that simpliciter suit for injunction has been filed by the plaintiff before the learned Civil Judge, Court No.3, Hamirpur, on the strength of Mutation No.779 as entered in the remarks column of jamabadi for the year 2007-2008. The very case of the petitioner is that the land comprising Khata No.232, Khatoni No.325, Khasra No.779, measuring an area 121-75 Sq.mts. Hadbast No.47 situated in Up Mohal Partap Nagar, Mouza Bajuri Tehsil and District Hamirpur, H.P. as per jamabandi for the year 2007-2008 along with two rooms, kitchen and courtyard double storeyed thatched with tin sheets is joint between the plaintiff and other legal heirs of

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deceased Smt.Kesri Devi, which is evident from the mutation

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No.779 made with red ink in the remarks column of jamabandi for the year 2007-08. The case of the plaintiff rests upon the said mutation and he approached the Civil Court for the grant of injunction by restraining the defendants/respondents from demolishing the old ancestral house consisting of two rooms, kitchen and courtyard, double storeyed thatched with tin sheets and further with the prayer to restrain the defendants from raising any sort of new construction thereupon which is situated over the suit land. 16. The defendants/respondents have categorically averred in the written statement that the said mutation No.779 and the order passed by Assistant Collector 2^nd Grade were challenged before the Sub Divisional Collector and the appeal of the defendants/respondents was accepted by the Sub Divisional Collector on 25.05.2015. The Sub Divisional Collector remanded back the case to the Assistant Collector 2^nd Grade for decision afresh. The said order was challenged before the Divisional Commissioner, Mandi and the Financial Commissioner(Appeals), Himachal Pradesh.

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However, the appeal and revision as preferred by the plaintiff/petitioner have been ordered to be dismissed.

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It is submitted by the learned counsel for the defendants/respondents that the plaintiff/petitioner has not approached the Court with clean hands and he has suppressed this material fact from the Court. He has taken this Court to the plaint, which has been filed before the learned trial Court, whereby the orders of Sub Divisional Collector, Divisional Commissioner and Financial Commissioner(Appeals) have been concealed.

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It is well settled principle of law that in order to obtain discretionary relief, the party should approach the Court with clean hands. In the present case, the revenue proceedings have been concealed by the plaintiff/petitioner in his pleadings and the material information has been withheld in order to gain undue advantage. Learned District Judge has rightly come to the conclusion that once the basis of the claim on which he is relying his claim i.e. Mutation No.779 is no more in existence, no relief can be granted to the plaintiff/petitioner in the present case. Once, the mutation has been set aside and the case has been remanded back to

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the Assistant Collector 2^nd Grade with the direction to decide afresh and the said order has been affirmed by the Divisional Commissioner and Financial Commissioner(appeals), the plaintiff has failed to make out a prima facie case in his favour. The very case of the plaintiff/petitioner is that he is one of the co-owners, being successor of late Smt.Kesri Devi and is entitled to enjoy the joint land/property till the time same is partitioned in accordance with law and the defendants/respondents should be restrained from interfering in his possession and further the defendants be restrained from demolishing the old structure. Once the mutation No.779 has been cancelled, therefore, there is nothing on record to establish or substantiate that the plaintiff is coowner in possession of the suit property. Therefore, the plaintiff has failed to show prima face case in his favour.

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The defendants/respondents have taken a defence that by virtue of registered Will dated 26.10.1991, the house/portion of the suit land has been allotted to defendant No.1 and thereafter, he is in exclusive possession of the said suit land/property.

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Admittedly, there is no challenge to the said Will

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which has been allegedly executed by late Smt. Kesri Devi in favour of the defendants/respondents. Therefore, under such circumstances, it is the defendants/respondents who have got prima facie case in their favour and balance of convenience also lies in their favor. In case they are restrained from enjoying the suit property during the pendency of suit, they shall suffer huge irreparable loss.

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Learned appellate Court has rightly decided the controversy in question and has rightly dismissed the application filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 of CPC

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The Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , has held that while exercising power under Article 227 of the Constitution of India, the High Court does not act as a Court for first

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appeal. The relevant paras of the said judgment read as under:

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from

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the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice

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16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.² has observed:—

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“6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts

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and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”

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