IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 673 of 2024 Date of Decision : 06.04.2026 Sher Singh ...Petitioner Versus Rakesh Chand & anr. ...Respondents Coram: f The Hon’ble Mr. Justice Romesh Verma. Judge.

Whether approved for reporting?1 For the petitioner : Mrr. Naresh K. Sharma and Mr. Kamal Sharma, Advocates.

For the respondents : Mr. Hamender Singh Chandel, Advocate.

Romesh Verma, Judge(oral)

The present petition arises out of the jhudgment as passed by the learned Additional District Judge Ghumarwin, District Bilaspur dated 14.11.2024, whereby an appeal preferred by the present petitioner was partly allowed and the order as passed by the learned Civil Judge, Court No.2, Ghumarwin dated 01.10.2024 was set-aside.

2. Brief facts of the case are that the present petitioner/plaintiff filed a suit for permanent prohibitory injunction restraining the defendants/respondents from digging the suit land, raising any construction or occupying

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

valuable and specific portion of the suit land, cutting and removing the trees over the land measuring 5-1 bighas comprised in Khasra No. 43, Khata Khatoni No.8/11, situated in Village, Khansra, Pargna Sariun, Tehsil Ghumarw.in, District Bilaspur,H.P.

3. It has been averred in the plaint that the parties are co-sharers and in joint possession of the suit land. It has been averred that the parties had e arlier constructed residential houses over the suit landr and now the plaintiff had applied for partition before the revenue authorities. It has further been averred that during the partition proceedings at the time of preparation of ‘Fard Kabja’, it was found that defendants are having possession of more land, which is exceeding to their share and when this fact came to the knowledge of the defendants, they started raising forcible construction in order to grab the excess share and valuable and specific portion of the suit land. It was further averred that the defendants are threatening to forcibly raise the construction by dispossessing the plaintiff from his share in possession of the suit land with malafide intention and to prejudice the rights of the plaintiff. Therefore, decree for permanent prohibitory injunction and alternative decree for joint possession was sought by the plaintiff /petitioner from the learned trial Court .

4. Along with the suit, an application under Order 39 Rule 1 and 2 C.P.C was also filed by the plaintiff./petitioner seeking prayer that the non applicant/defendant be restrained from digging the land and raising construction over valuable and the specific portion of the suit land by cutting and removing the trees and changi ng the nature of the suit land during the pendency of thre suit.

5. The suit was contested by the respondent/defendant by raising preliminary objections with respect to maintainability, cause of action, locus standi and estoppel etc. On merits, it was admitted that the parties are co- sharers. It was averred that the plaintiff himself has constructed his residential house and the old house of the defendants is in dilapidated condition and it can fall at any time. The plaintiff had about 0-6 bighas more land than to his share. All the averments and contentions made in the plaint were refuted, and the defendants sought dismissal of the suit.

6. The defendants filed reply to the application filed by the plaintiff under the provisions of Order 39 Rules 1 and 2 C.P.C and sought the dismissal of the application.

7. The learned trial Court vide its order dated 01.10.2024 dismissed the application as filed by the plaintiff/petitioner.

8. Feeling dissatisfied, the plaintiff./petitioner preferred an application under the provisions of Order 43 Rule 1 (r)of C .P.C before the Additional District Judge, Ghumarwin on 05.10.2023. The First Appellate Court vide its judgment dated 14.11.2024 partly accepted the appeal, whereby the present respondents were allowedr to reconstruct the old house