Himachal Pradesh High Court
Reserved On: 20.09.2024 vs Shambhu Dutt Alias Shambhu Ram on 4 October, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:9573 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP No. 11256 of 2024 in
RSA No. 402 of 2014
Reserved on: 20.09.2024
Decided on: 04.10.2024
Kartar Chand alias Kartar Singh
....Applicant/Appellant
Versus
Shambhu Dutt alias Shambhu Ram
...Non-Applicant/Respondent
Coram:
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
_________________________________________________
For the applicant/appellant: Mr. Sanjeev Kuthiala, Senior
Advocate with Mr. Ashishek,
Mr. Dhruv Kuthiala& Mr. Uday
Kuthiala, Advocates.
For the non-applicant/
respondent: Mr. Dheeraj K. Vashisht,
Advocate.
Sushil Kukreja, Judge
The instant application under Order 41 Rule 33,
read with Section 151 of CPC has been filed by the
appellant/applicant seeking permission to make necessary
repairs of the two storeyed slate pose house allegedly situated
at khasra No. 2928, situated at Up-Mohal Ram Nagar, Tehsil
Amb, District Una, H.P., and to modify the orders dated
1 Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2024:HHC:9573 )
08.09.2014 and 03.12.2014, passed by this Court to the extent
that the said repairs to be made by the applicant/appellant
would be subject to the final decision of the case and he would
not claim any equity whatsoever. As per the applicant, during
the pendency of the case, a portion of the house situated on
khasra No. 2928 had fallen down on account of incessant rain,
which needs immediate repairs to ensure that the house does
not fall down. It has further been averred in the application
that as per the present status of the house in question, the
slates of the roof have fallen down and the walls have
developed cracks, as such the house in question is in
dilapidated condition. It has also been averred by the
appellant/applicant that he is a senior citizen of about 78 years
of age and is living with his wife, their sons and families and
theentire family is under apprehension of injury of life and limb
in the eventuality of the repairs of the house not being
conducted. Hence the instant application has been filed by the
applicant/appellant for granting him permission to repair the
house in question immediately.
2. Reply to the application has been filed, wherein it
has been stated that it is the case of the applicant himself in
his written statement that the house hasfallen down, but the
3 Neutral Citation No. ( 2024:HHC:9573 )
material of the same is still there and by means of the present
application, he wants to bypass the decree of permanent
prohibitory injunction. Both the learned Courts below have
concurrently held that the applicant/appellant is not in the
possession of the suit land and by filing the present
application, the applicant/appellant wants to establish his
possession over the suit land by raising new construction.
Lastly, a prayer for dismissal of the application is made.
3. In rejoinder to the reply, contents of the reply are
denied and that of the application have been re-asserted.
4. I have heard the learned Senior Counsel for the
appellant/applicant, learned counsel for the non-
applicant/respondent and meticulously examined the entire
record.
5. The perusal of the record reveals that the
plaintiff/respondent/non-applicant had filed a suit for
permanent prohibitory injunction against the
defendant/applicant to the effect that the land comprised
inkhewat No. 350, khatauni Nos. 812, 813 and khasra Nos.
2932, 2933 & 2934, measuring 0-4-29 hectares situated at
Up-Mohal Ram Nakroh, Tehsil Amb, District Una, H.P. is
jointly owned and possessed by the plaintiff/non-applicant
4 Neutral Citation No. ( 2024:HHC:9573 )
alongwith his brothers, mother and sisters, whereas, land
comprised inkhewat No. 506, khatauni Nos. 1108, 1120,
khasra Nos. 2925, 2927, 2928, 2930, 2931 & 2935, measuring
0-06-48 hectares situated in up Mahal Ram Nagar is shamlat
deh kabjabashindgandeh share-aam. The plaintiff/non-
applicant had also filed site plan alongwith the plaint showing
his house and of his brothers over part of the suit land, while
remaining suit land according to him is vacant which is in his
use and that of his brothers. As per the plaintiff,there is also a
path through khasra No. 2930, while house of one Dano Devi
is over khasra Nos. 2928 and 2924. According to the
plaintiff/non-applicant, defendant/applicant is resident of Tehsil
Dehra, District Kangra and is not inhabitant of village Nakroh
and had threatened to oust the plaintiff/non-applicant from his
house, by demolishing the same and had also threatened to
block the passage of plaintiff through khasra No. 2930.
6. The learned trial Court decreed the suit of the
plaintiff/non-applicant and the plaintiff (Kartar Singh) was held
entitled for a decree of permanent prohibitory injunction,
through which the defendant (appellant/applicant herein) was
restrained from dismantling the house shown in green color in
the site plan of the plaintiff, oust the plaintiff from the suit land,
5 Neutral Citation No. ( 2024:HHC:9573 )
change its nature, raise construction and block the passage
leading through the suit land mentioned in paras (a) and (b) of
the head note of the plaint. The appellant/applicant, feeling
aggrieved, filed an appeal under Section 96 CPC against the
aforesaid judgment passed by the learned Trial Court, but the
learned First Appellate Court dismissed the same, being
devoid of merits. Hence the appellant/applicant Kartar Chand
@ Kartar Singh had preferred the instant appeal under
Section 100 of CPC against the aforesaid judgment passed by
the learned First Appellate Court, whereby the findings of the
learned Trial Court were affirmed, with a prayer that the
instant appeal be allowed and the suit filed by the plaintiff,
Kartar Chand, be dismissed.
7. During the pendency of the instant appeal, this
Court had passed an interim order, dated 08.09.2014, on the
application filed by the appellant/applicant, bearing CMP No.
13903 of 2014, whereby the parties were directed to maintain
status quo qua nature and possession with respect to the suit
land till further orders and the said order was made absolute
on 03.12.2014.
8. By means of the present application, the
appellant/applicant has sought the permission of this Court to
6 Neutral Citation No. ( 2024:HHC:9573 )
make necessary repairs of the two storeyed pose house
allegedly situated on Khasra No. 2928 by modifying the orders
dated 08.09.2014 and 03.12.2014, passed by this Court, as
aforesaid.
9. In the written statement filed by the present
applicant before the learned Trial Court, it has been averred
by him that khasra Nos. 2934 and 2933 of the land, mentioned
in para (a) of the head note of the plaint are in his possession,
wherein his old cattle shed exists. It has further been
submitted by the applicant in the written statement that he is in
possession of khasra Nos. 2928 and 2927. The abadi over
khasra No. 2927 has fallen down and the material is still in
existence. While decreeing the suit of the plaintiff,the learned
Trial Court had arrived at a conclusion that since the
defendant (applicant herein) is not the proprietor of the village,
hence he has no right over the suit land, as mentioned in para
(b) of the head note of the plaint, which is recorded as
shamlatdehkabjabashindgan deh, and as such the defendant
has no right to raise construction or cause interference in the
suit land, as mentioned in para (b) of the head note of the
plaint, being stranger. Admittedly, khasra No. 2928 is part of
the suit land mentioned in para (b) of the head note of the
7 Neutral Citation No. ( 2024:HHC:9573 )
plaint over which as per the applicant, his slate pose house is
situated and for which the applicant has sought permission to
make necessary repairs by means of the present application.
10. Thus, right from the beginning when the written
statement was filed by the applicant/defendant, his case was
that the slate pose house existing over khasra No. 2927 has
fallen down and the material of the same is still there. It is not
understandable that how the present application has been
filed seeking permission to repair the house allegedly existing
over khasra No. 2928, when the applicant had nowhere
pleaded in his written statement that there was an old slate
pose house in his possession over khasra No. 2928.From the
perusal of the written statement of the applicant, it is clear that
the house existing over khasra No. 2927 had already fallen
down. Therefore, prima facie, it appears that under the garb of
the present application, the applicant wants to set-up a new
case and intends to bypass the decree of permanent
prohibitory injunction, by which the applicant was restrained by
the learned Trial Court from changing the nature and from
raising construction over the suit land, mentioned in para (a)
and (b) of the head note of the plaint and khasra No. 2928
being part of the land mentioned in para (b) of the head note
8 Neutral Citation No. ( 2024:HHC:9573 )
of the plaint. The said decree was affirmed by the learned First
Appellate court and during the pendency of the present
appeal, the parties were directed to maintain status quo qua
nature and possession over the suit land. Hence, no case has
been made-out by the applicant to modify orders dated
08.09.2014 and 03.12.2014 of status quo passed by this
Court.
11. The ld. counsel for the applicant lastly contended
that entire family of the applicant is under apprehension of
injury of life and limb in the eventuality of the repair of the
house not being conducted. However, this apprehension of
the applicant is highly misconceived, because as observed
earlier, as per the applicant himself, house existing over
khasra No. 2927 had already fallen down and he had nowhere
pleaded in his written statement that there was an old slate
pose house in his possession over khasra No. 2928. Moreover
from the perusal of record, it is clear that the applicant and his
wife are living, alongwith their sons who have already
constructed their houses at some other places.
9 Neutral Citation No. ( 2024:HHC:9573 )
12. Thus, in view of what has been discussed
hereinabove, the application, which is devoid of merits, is
dismissed.
13. Needless to say that what has been discussed
hereinabove is only for the purpose of disposal of the present
application and shall not be construed as an opinion
expressed on the merits of the case, which shall be
adjudicated on its own merits.
( Sushil Kukreja )
Judge
4thOctober, 2024
(virender)
