Dhani Ram Vs Kashmir Singh

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.782 of 2025 Date of decision:22.07.2026

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Dhani Ram ...Petitioner

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Versus Kashmir Singh ...Respondent. Coram:

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The Hon’ble Mr. Justice Romesh Verma, Judge . Whether approved for reporting?¹ For the petitioner : Mr. Devender K. Sharma, Advocate. For the respondent : Mr. Vinod Thakur and Mr. Sumesh Raj, Advocates.

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Romesh Verma, Judge (oral):

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The present petition arises out of the judgment as passed by the learned Additional District Judge, Sarkaghat, District Mandi, Camp at Joginder Nagar, dated 12.11.2025, whereby the appeal filed by the plaintiff/respondent was accepted and the application filed under Order 39 Rules 1 & 2 CPC was allowed by directing the present petitioner/defendant not to carry out construction on the suit land till the disposal of the main suit.

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The facts as emerge in the present case are that the respondent/plaintiff filed a suit for permanent prohibitory injunction and mandatory injunction against the defendant/petitioner, Dhani Ram, in the Court of the learned Civil Judge, Court Padhar, District Mandi, H.P.

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

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As per the averments made in the plaint, it has been stated that Khasra Nos. 406 and 410, measuring 03-12-18 and 02-02-07 bighas respectively are part of the suit land and a major chunk of this land has been acquired by the National Highways Authority of India for the purpose of construction and widening of the National Highway.

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It is the case of the plaintiff that without having the suit land partitioned by metes and bounds, the defendant has started raising construction over the suit land and has raised a part of the retaining wall after excavating the suit land despite strong objections raised on the part of the plaintiff.

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It is the case of the plaintiff that the defendant started the excavation on 25.10.2023 and despite objections and intervention, he raised the retaining wall and has finally refused to admit the claim of the plaintiff. Therefore, under such circumstances, the plaintiff has filed the suit seeking decree of permanent prohibitory injunction by restraining the defendant from raising any sort of construction or changing the nature of the suit land, i.e., Khasra Nos. 406 and 410. Further, it has been prayed that in case during the pendency of the suit, the defendant succeeds in raising the construction, in that event, decree of mandatory injunction be passed in favour of the plaintiff and against the defendant by ordering the demolition of the same.

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Along with the suit, the plaintiff/respondent filed an application under Order 39 Rules 1 & 2 CPC with a prayer that the non-applicant/present petitioner be restrained from raising any sort of

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construction or changing the nature of the suit land comprising Khasra Nos. 406 and 410, in any manner, by issuing an ad-interim injunction in the interest of justice.

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The suit as filed by the plaintiff/respondent was resisted by the present petitioner/defendant. All the averments made in the plaint have been specifically refuted and denied. It has been submitted in the written statement that the suit land was acquired by the parties from their father through a registered Will, so the nature of the suit property is not ancestral.

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It is the case of the defendant that the father of the parties had divided the road-front land amongst all four of his sons in a family arrangement made by him about 15 years ago and all the houses of each and every brother face adjacent to each other. Except for Shri Hans Raj, all have constructed their separate houses on the spot, which are at a distance of 5 feet from each other. The defendant has stated that since, on the basis of the family arrangement, all the brothers are residing separately and occupying their respective portions, the suit in question, as well as the application which has been filed for the grant of an ad-interim injunction, deserve to be rejected.

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The defendant filed a separate reply to the application under Order 39 Rules 1 & 2 CPC and prayed for the dismissal of the same.

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The learned Civil Judge, Court Padhar, District Mandi, vide its order dated 09.01.2025, dismissed the application filed by the plaintiff/respondent.

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Feeling dissatisfied, the plaintiff preferred an appeal in the Court of the learned Additional District Judge, Sarkaghat, District Mandi, Camp at Joginder Nagar, who, vide its impugned judgment dated 12.11.2025, accepted the appeal and the application filed by the plaintiff/respondent came to be allowed by restraining the present petitioner from raising construction on the suit land till the disposal of the main suit.

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Feeling dissatisfied, the defendant has approached this Court by instituting the present petition by invoking the provisions of Article 227 of the Constitution of India. 12. It is contended by Mr. Devender Sharma, learned counsel for the petitioner, that the impugned judgment as passed by the learned first appellate Court is erroneous and liable to be set aside. He submits that since the parties are occupying the suit land separately on the strength of the family arrangement, the judgment which has been passed by the learned first appellate Court is not sustainable. He further submits that after accepting the present petition, the application filed by the respondent/plaintiff under Order 39 Rules 1 & 2 CPC deserves to be rejected.

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On the other hand, Mr. Vinod Thakur and Mr. Sumesh Raj, learned counsels for the respondent, have defended the

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impugned judgment. It is contended by them that the learned first appellate Court has passed a well-reasoned judgment, and while invoking the provisions of Article 227 of the Constitution of India, this Court should not interfere in the well-reasoned judgment.

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I have heard the learned counsel for the parties and gone through the case file carefully. 15. In the present case, the plaintiff/respondent has approached the Court seeking an injunction against the defendant on the ground that the suit land bearing Khasra Nos. 406 and 410 is joint land amongst the parties and till it is partitioned by metes and bounds, nobody can be permitted to raise construction over the most valuable portion of the suit land, including the land adjacent to the road.

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The plaintiff has set up the case that in the absence of partition inter se the parties, the defendant/petitioner is raising construction, which is detrimental to the rights of the plaintiff and shall prejudice his rights.

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The plaintiff/respondent, along with the suit, filed an application under Order 39 Rules 1 & 2 CPC, which came to be dismissed by the learned trial Court on the ground that it had not been detailed in the plaint as to which part of the suit land was the most valuable portion of the suit land.

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Thereafter, the plaintiff approached the learned first appellate Court and the said Court came to the conclusion that since, as per the revenue record the parties are joint owners, therefore, as

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per the well-settled principles of law, the possession of one co-sharer is the possession of the other co-sharer.

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On the strength of said proposition of law, the learned first appellate Court came to the conclusion that no co-sharer can be permitted to raise construction to the detriment of the other co-sharer in the absence of any family arrangement or Will as set up by the petitioner.

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In order to adjudicate the matter in controversy, this Court, on 22.06.2026, after passing a detailed order, directed the Tehsildar, Padhar, to demarcate the suit land and to apprise this Court about the status of the suit land.

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A comprehensive report has been submitted by the Tehsildar, Padhar, which is taken on record. As per copy of the same, especially the copy of Tatima, it categorically shows that the majority of the land or the majority of the land adjacent to the road, is being possessed by the present petitioner. The orange portion consisting of Khasra Nos. 410 and 406 is fully occupied by the present petitioner. The present respondent is in possession of the land depicted in green along with the present petitioner and their brother, Shri Hans Raj. On the face of it, this report substantiates that the present petitioner is in occupation of substantial land, including the land adjacent to the road.

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The apprehension of the plaintiff is totally correct, whereby he has approached the Court with the prayer that since the land in question is joint inter se the parties, no co-sharer can be permitted to

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utilize land exceeding his share as well as the best portion of the suit land.

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The report clearly shows that the majority of the front portion of the suit land is in the occupation of the present petitioner, and he cannot be permitted to raise construction until the suit land is partitioned.

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Though the petitioner/defendant has raised the plea of a family arrangement, as observed by the learned first appellate Court, but no copy of the said family arrangement has been placed on record to strengthen his case.

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This Court is of the considered opinion that once the suit land is joint inter se the parties and the majority of the valuable portion is in the occupation of the petitioner, he cannot be permitted to exceed his share and raise construction to the detriment of the plaintiff/respondent. There is no infirmity or illegality in the impugned judgment as passed by the first appellate Court.

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The Hon’ble Apex Court in Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , has dealt with the scope of interference while dealing with petition filed under Article 227 of the Constitution and held 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 the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The

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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.1 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. 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 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

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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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Consequently, in view of the aforesaid observations, there is no merit in the present petition and the same is dismissed along with pending application(s), if any.

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28.. Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here- in-above, which are only for the purpose of the instant petition.

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(Romesh Verma) Judge

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22^nd July, 2026. (vt)

Dhani Ram v. Kashmir Singh

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Dhani Ram v. Kashmir Singh

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