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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.371 of 2025

Date of decision: 01.04.2026 Jhabe Ram ...Petitioner.

Versus

Mamta ...Respondent.

Coram:

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting?¹ For the petitioner : rMr. Tek Chand, Advocate.

For the respondent : Mr. Paras Dhaulta, Advocate, vice Mr.Raman Jamalta, Advocate.

Romesh Verma, Judge (Oral):

The present petition arises out of order, as passed by

lhearned District Judge, Kullu, District Kullu, H.P. dated 02.05.2025, gwhereby the application filed by the present respondent under Section

5 of the Limitation Act for condonation of delay in filing the appeal has

been allowed.

2. Brief facts of the case are that the petitioner/plaintiff has filed a suit for permanent prohibitory injunction against the defendant/respondent. It was averred that the defendant is a stranger to the suit land, who has bought a small piece of land, adjacent to Khasra No.719 i.e. under Khasra No.718 along with other co-sharers to the extent of 1/6^th share i.e. 00-01-03 bighas land out of total land

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

judgment?

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measuring 00-07-00 bighas. On Khasra No.718, there are two already constructed houses of Budhi Prakash and Tek Chand. The defendant is constructing her house in the middle of both the houses, as depicted in the site plan. Along with the boundary/support wall, there is an exclusive path, which is paved by the pavers, with the help of Municipal Council, Kullu, and which is used by the plaintiff and the same is within Khasra No.719. Accordingly, the defendant has no right, title or interest to interfere with the peaceful possession of Khasra No.719. It was prauyed that the decree for permanent prohibitory injunction be passed against the defendant by restraining her from interfering with peaceful possession of land comprised in Khasra

No.719 being owned by the plaintiff/petitioner.

3h. Further, it was prayed that the defendant be directed not to cut and excavate the land unscientifically, thereby exposing the boundary/support wall, and further restraining the defendant from excavating the land close to the boundary/support wall of the plaintiff. Lastly, a decree of mandatory injunction was also sought that in case during the pendency of the suit, the defendant causes any sort of damage by any unscientific excavation or digging the boundary/support wall, in that event, the defendant be directed to

restore the property to its original position.

4. The plaintiff, along with the suit, has filed an application

under Order 39 Rules 1 and 2 of CPC.

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5. The suit was contested by the present respondent/defendant by filing a detailed written statement, whereby all the averments and allegations as levelled in the plaint were refuted. It was averred in the written statement that the defendant is constructing her house over her own land. On one side, there is vacant land of one Shri Budhi Parkash and all the co-owners have no objection for the construction of house by the defendant over her own land, which is Khasra No.718. The path, in question, is existing on the spot since long backu and the same has been paved by the Municipal Council, Kullu and it is being used by General Public at large and the same is not personal property of the plaintiff. Consequently, the

defendant has sought the dismissal of the suit.

6h. Learned trial Court vide its order dated 19.04.2023, allowed the application under Order 39 Rules 1 and 2 CPC and passed the following order:

“8. Perusal of the site plan as well as the photographs filed on record shows that the Respondent is carrying out construction in a manner which is affecting the boundary/support wall and the same is being damaged and if the construction is allowed to be made by the Respondent without interference by this Court, then the same will lead to affecting the bounda

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