IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.395 of 2023 Reserved on : 08.09.2023 Date of Decision : 16/09/2023 Suresh and others …… Petitioners Versus Goverdhan ……Respondent Coram:

The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 r For the Petitioners : Mr. Ravinder Singh Chandel, Advocate.

For the respondent : Mr. R.K. Bawa, Senior Advocate with CMr. Rakesh Thakur, Advocate.

Bipin Chander Negi, Judge (oral)

The present respondent was the plaintiff before the learned trial Court. The plaintiff had filed a suit for permanent prohibitory Hinjunction and for grant of mandatory injunction. The suit land in the case at hand bears Khasra Nos.234 and 241 situated at Mohal Rauni, Tehsil Theog, District Shimla. On Khasra No.234, there exists an apple orchard of the present respondent/plaintiff. Khasra No.241 is co-owned by the respondent/plaintiff and the present petitioners/defendants. In the suit so filed, the

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

respondent/plaintiff claims a right of access to Khasra No.234 from Khasra No.241.

2. In the aforesaid suit, vide order dated 9.9.2022, learned trial Court had restrained the present petitioners/defendants from obstructing or creating any type of hindrance or interference in any manner in the free access of the applicant over the passage passing through the suit land compromised in Khasra No.241. Post passing of the aforesaid order, the matter was listed on 29.9.2022 for effeucting service of the plaintiff/respondent. Compliance uonder Order 39 Rule 3 of the Code of Civil Procedure, 1908 (for short, “CPC”) was required to be made within the stipulated time.

h3. The copy of the aforesaid order was duly served upon the gpetitioners/defendants. Despite being aware of the same, the ipetitioners/defendants had restrained the respondent/plaintiff from the use of the passage over Khasra No.241. In view of the aforesaid, present respondent/plaintiff was forced to approach the Police Post, Matiyana. The complaint so made was registered vide Nakal Rapat No.16 in Rojnamcha dated 15.9.2022. Since the Police took no action to implement the aforesaid impugned order passed by the trial Court dated 9.9.2022, therefore, the plaintiff/respondent was constrained to approach the trial Court by moving an application under Section 151 of the Code of the CPC, seeking Police assistance. The said application was instituted on 19.9.2022. The next date in the matter was fixed for 26.9.2022. On the said date, the present petitioners/defendants put in appearance, filed their written statement and adopted the same as reply to the application under Section 151 of the CPC wherein Police assistance was being sought.

4. Other than the aforesaid, respondent/plaintiff had filed an application for appoiuntment of a Local Commissioner. During the pendency of thoe application, wherein Police assistance had been sought for enforcement of the order dated 9.9.2022, a Local Commissioner was appointed to inspect the spot and submit his hreport with respect to existence of the path over Khasra No.241 gand any type of obstruction made thereupon. Besides the iaforesaid, Local Commissioner was also directed to report about the standing apple crop existing on Khasra No.234 and the harvested apple crop lying in crates in the orchard, i.e., Khasra No.234. Copy of the said report was also supplied to the parties on 26.9.2022.

5. The trial Court had observed that admittedly, the plaintiff/respondent herein had filed complaints and a writ petition against encroachments made on the Government land. In pursuance to the same, some of the petitioners/defendants had been evicted by the Collector-cum-DFO, Theog while exercising powers under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, whereas some of the petitioners/defendants had preferred an appeal against the said order. Besides the aforesaid, learned trial Court had noticed over ripen