Kesar Singh Since Deceased through His Lrs Vidya Devi and Others Vs Ved Ram

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 663 of 2024 Reserved on 24.02.2026 Decided on : 02.03.2026

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Kesar Singh (deceased) through LRs ...Petitioners. Versus Ved Ram …..Respondent.

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Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?¹

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For the petitioners: M/s B.L.Soni & Nitin Soni, Advocates. For the respondent: Mr. Tara Singh Chauhan, Senior Advocate with Mr. Surya Chauhan, Advocate.

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Romesh Verma, Judge

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The present petition arises out of the order passed by learned Civil Judge, Kullu, District Kullu, H.P. in Case No. 94 of 2016, titled Vidya Devi vs. Ved Ram, decided on 26.10.2024, whereby the application filed by the petitioner for implementation of the order dated 05.08.2016, directing to demolish the construction raised by the respondent, has been rejected.

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Brief facts of the case are that the plaintiff/petitioner filed a suit for permanent prohibitory injunction in the Court of Civil Judge, Kullu, District Kullu, H.P. It was averred in the plaint that land measuring 01.05-00 Bigha comprised in Khasra No. 857, contained in Khatauni No. 317 of Khata No. 188, situated in

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Tosh, Phati Manikaran Kothi Kanawar, Tehsil Bhuntar, District Kullu, H.P. as incorporated in Jamabandi for the year 2008-2009, is recorded in the joint ownership and possession of the plaintiffs and defendant alongwith other co-sharers.

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It was averred in the plaint that initially there was a two and half storied slate roofed house of Poshi Devi, plaintiff No.1, and in the month of November 2001, the same was gutted in fire, and in its place, plaintiff No.1 constructed a single storied CGI sheet roofed shed measuring 15 Hath x 13 Hath and the same is being used by her as grass and wooden store and rest of the suit land is vacant on the spot and is cultivable.

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It has further been averred that the defendant is a very rich and influential person, who by taking undue advantage of this fact is openly threatening to grab the most valuable portion of the suit land facing towards the aforesaid agricultural path and that too in excess of his share and to this effect he is collecting construction material over the suit land in order to raise construction over the same, that too, in excess of his share, without getting the same lawfully partitioned, of which he has no right. The aforesaid act on the part of the defendant is highly wrongful and illegal.

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In this background, suit was filed by the plaintiff/ petitioner seeking a decree by restraining the defendant from

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raising any type of construction over the suit land and further from changing the nature of the aforesaid land in any manner and further for grant of permanent prohibitory injunction.

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The suit was contested by the defendant by raising various objections such as maintainability, non-joinder of necessary parties, estoppel and that the plaintiff has not approached the court with clean hands etc.

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On merits, it was stated that in the fire outbreak, almost all houses of Village Tosh were gutted in fire. The defendant had two residential houses and one agricultural house in village Tosh. Out of these two residential houses, one was ancestral house of Ved Ram, the defendant, that existed near the suit land but on the other land, there was another residential house, which was individually owned by him, existed on the North-Eastern portion of the suit land abutting both the aforesaid two paths running alongwith its Northern and Eastern sides. The third house was agricultural house which also existed outside the suit land but quite near to it. All these three houses of the defendant and house of the plaintiff, alongwith other houses of the co-villagers, were gutted in the fire outbreak in the year 2001.

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The defendant had acquired 1/4th share in the suit land equivalent to 0-06-05 bighas, alongwith one residential house over it, from one Sarvu widow of Totu by way of gift.

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It was submitted that after the previous houses of the parties were gutted in fire in the year 2001, plaintiff Smt. Poshi Devi through her son Kesar Singh constructed her aforesaid two storied tin roofed residential house measuring 43 ft 3 inches x 25 ft 2 inches on the northern portion of the suit land. Now, the plaintiffs are estopped from objecting to the re-construction of the residential house by the defendant, as she had acquiesced and consented to such re-construction as submitted hereto before and also for further reason that she had also constructed her own residential house, bath room, shed etc. As a result of aforesaid understanding/arrangement between the co-sharers, plaintiffs are estopped from not extending such concession given by the plaintiff and other co-sharers to the defendant in breach of the aforesaid arrangement/agreement.

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It was further submitted that the house of the defendant had become uninhabitable and as such it was demolished in the month of March, 2016 and soon thereafter reconstruction work was started by him. The construction is being

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done well within his share on such land which is in his settled possession and on which his said previous house existed. The

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defendant has not covered any fresh land under his house or occupation, as alleged. Therefore, the defendant had prayed for dismissal of the suit as filed by the plaintiff.

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Alongwith the suit, plaintiff had also filed an application for stay and on 24.05.2016, learned Civil Judge (Sr. Div.), Kullu, H.P. had directed that notices be issued to the respondents returnable for 22.06.2016, and till then, both the parties were directed to maintain status quo qua the nature, possession and construction over the suit land.

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Thereafter, the said interim order was confirmed on 05.08.2016, whereby the respondents was restrained from raising further construction in any manner over the suit land comprised in Khata No. 188, Khatauni No. 317, Khasra No. 857, measuring 01-05-00 bighas, situated at Phati Manikaran, Kothi Kanawar, Tehsil Bhuntar, District Kullu, H.P. till final disposal of the suit.

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It is contended by learned counsel for the petitioners that despite passing of the injunction order passed by the learned Civil Judge (Sr. Div.), Kullu, District Kullu, H.P. respondent continued with the construction work.

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The plaintiffs/ petitioners filed an application under Order 39 Rule 7 CPC for appointment of a Local Commissioner on 31.05.2016, immediately, after passing of the interim order

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with the direction to the Local Commissioner to visit the spot and report about the construction work carried out by the present respondent. The said application was allowed by learned Civil Judge (Sr. Div.), Kullu, District Kullu, H.P. on 01.06.2016 and Sh. Harish Sharma, Advocate was appointed as Local Commissioner with the direction to inspect the spot and to report the construction, if any, being raised by the respondent on the spot. The Local Commissioner visited the spot and gave his report on 04.06.2016. The copy of the report has been appended with the present petition, as Annexure P-7.

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It is contended by the learned counsel for the petitioners that despite passing of the interim order which was confirmed by learned Civil Judge (Senior Division), Kullu, District Kullu, H.P. on 05.08.2016, the respondent continued with the construction.

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Thereafter, the plaintiffs on 31.10.2023 filed an application for the implementation of the order dated 05.08.2016 with further direction that police be directed to seize the construction material lying on the spot and illegal construction raised after passing of the injunction order may be ordered to be demolished at the cost and expenses of the respondent and property of the respondent may be ordered to be attached and

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respondent may be ordered to be sent in civil imprisonment in the interest of justice.

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Respondent filed reply to the application on 04.11.2023, whereby it has been contended that respondent is an old person and he is shepherd by vocation and he has fairly big flock of sheep and goats and in addition to that he has agricultural land in high acres in the hill tops of Tosh/Maantalai area which is far away from his village where suit property is situated. In summers, the respondent takes his sheep and goats and cattle to his agricultural land situated in the hill tops of the aforesaid village which adjoins grazing runs. He had taken cattle, sheep and goats to the aforesaid grazing runs in the middle of May, 2016, which is about 10-15 k.m. from village Tosh and the whole distance is not connected by roads and one has to walk all this distance on foot.

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It has further been submitted in the reply that son of respondent namely Pyare Lal had taken knowledge of the aforesaid notice/ ex-party injunction order on 18^th June, 2016 and thereafter, he informed the respondent and immediately, thereafter, he stopped the construction work on the spot. It has further been contended in the reply that construction work on the suit land was done by son of respondent, namely Pyare Lal, and he should not carry out any construction work on the spot.

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Initially, the application filed under Section 151 of CPC for implementation of the order dated 05.08.2016 was disposed of by the learned Civil Judge, Kullu District Kullu, H.P. on 08.11.2023 and the same was partly allowed, whereby the SHO was directed to depute a responsible officer with a direction to visit the spot within 10 days of passing of the order and to make sure that order dated 05.08.2016 shall not be violated and shall be enforced in its letter and spirit.

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Since the petitioners felt aggrieved by partly allowing of the said application, therefore, he preferred CMPMO No. 729 of 2023 under Section 227 of the Constitution of India and this Court vide its order dated 06.08.2024 had disposed off the petition, whereby the matter was remanded back to the learned Trial Court for an adjudication with respect to the prayer for demolition of construction qua the construction raised after passing of the interim order dated 24.05.2016 by the learned Civil Judge (Sr. Division), Kullu, District Kullu, H.P.

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Finally, vide its order dated 26.10.2024 learned Civil Judge, Kullu, District Kullu, H.P. rejected the application and the prayer of the petitioner for demolition of construction being raised by the respondent has been declined.

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Feeling dissatisfied against the impugned order dated 26.10.2024, the present petition has been filed by the plaintiffs/petitioners.

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I have heard Mr. B.L.Soni, Advocate, assisted by Mr. Nitin Soni, Advocate, for the petitioners and Mr. Tara Singh Chauhan, Senior Advocate assisted by Mr. Surya Chauhan, Advocate, for the respondent and gone through the case file.

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It was contended by learned counsel for the petitioner that learned Trial Court has erred in dismissing the application filed by the plaintiffs/petitioners for implementation of the order dated 05.08.2016. He has further submitted that once it has been pleaded and proved that there is violation of the Court orders, especially injunction orders, then the necessary consequences which follow are that the construction in question is liable to be demolished.

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On the other hand, Sh. Tara Singh Chauhan, Senior Advocate, assisted by Mr. Surya Chauhan, Advocate, submitted that the learned Civil Judge, Kullu, District Kullu, H.P. after due application of mind and appreciating the oral or documentary evidence on record, has rightly passed the order. He has further contended that while exercising power under Article 227 of the Constitution of India, this Court will not interfere with the impugned order.

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From perusal of the record, it is clear that the plaintiff has filed a suit for permanent prohibitory and mandatory injunction. The suit is at the initial stage and parties have yet to lead evidence in support of their respective contentions. On asking a specific query from the learned counsel for the petitioners, this Court has been apprised that no application under Order 39 Rule 2-A for disobedience of the injunction order was ever filed by the present petitioner for the reasons best known to them.

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The prayer which the present petitioners is seeking in the present proceedings is that the construction which has been raised by the respondent in violation to the Court orders should be demolished. In the opinion of this Court, from perusal of the copy of the plaint, it is clear that this is the main relief as claimed by the plaintiff in the suit.

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The Hon’ble Apex Court in its various decisions has held that interim relief cannot be granted to a party in the guise of the final relief. Both parties have yet to prove their respective cases by leading cogent and authentic evidence to substantiate their rival contentions.

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The petitioners have raised a specific contention that despite the passing of the injunction order, the respondent has violated the same and has raised the construction. On the other

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hand, the respondent has refuted all the contentions raised by the present petitioners. Meaning thereby, this is a question of fact which has to be proved by leading independent witnesses. The parties are yet to establish their case and, in case, hypothetically the application of the petitioners is allowed, at this stage, that will virtually amount to decreeing the suit of the plaintiff at the threshold. Such relief in the guise of final relief cannot be granted to the plaintiffs/petitioners, at this stage.

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The allegations of the disobedience and violation have to be proved by leading cogent evidence and same can be proved or disproved by leading independent evidence of the respective parties. Therefore, the learned Civil Judge, Kullu, District Kullu, H.P. has rightly come to the conclusion that prayer for demolition of the construction, seizing of the construction material and sending him to Civil imprisonment are premature and all these reliefs can be granted on final determination of the Civil Suit, if proved.

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The Hon’ble Apex Court, in Civil Appeal No. 5784 of 2022 , titled My Palace Mutually Aided Co-operative Society vs. Mahesh & others , decided on 23.08.2022, has held as under:

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“26. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice

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or to prevent abuse of process. Although such a provision is worded broadly, this Court has tempered the provision to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far back as in 1961, this Court in Padam Sen v. State of U.P., AIR 1961 SC 218, observed as under:

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“8. …The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.” (emphasis supplied)

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In exercising powers under Section 151 of the CPC, it cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction over the relevant subject matter has the power to decide and may come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law.

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S ection 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot

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override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC.”

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Learned Counsel for the petitioners has relied upon the judgment, in case titled Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. & Another (1996 (4) SCC 622), decided on 06.05.1996.

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In the opinion of this Court, this judgment does not help the petitioners. Though, it is well settled law that no one should be allowed to defy or violate the Court orders as the majesty of the Court orders has to be upheld, but at the same time, it is also settled that final relief cannot be granted to a party that too in an application filed under Section 151 of CPC, in a routine manner.

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In the opinion of this Court, the learned Civil Judge, Kullu, District Kullu, H.P. has rightly decided the application vide its order dated 26.10.2024 and there is no error or infirmity in the same. Consequently, this petition being devoid of any merit is liable to be dismissed. Ordered accordingly.

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It is made clear that since the injunction order which was passed by the learned Civil Judge, Kullu, District Kullu, H.P.

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on 24.05.2016 was confirmed on 05.08.2016, therefore, during the pendency of the suit, respondent shall not raise any construction over the suit land in defiance or in violation of the said order.

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The present petition stands dismissed, in the aforesaid terms. All pending miscellaneous application(s), if any, shall also stand disposed off, accordingly.

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(Romesh Verma) Judge

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March 2, 2026 (Nisha)

Kesar Singh Since Deceased through His Lrs Vidya Devi and Others v. Ved Ram

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Kesar Singh Since Deceased through His Lrs Vidya Devi and Others v. Ved Ram

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