CMPMO/627/2026 on 16 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.627 of 2026 Decided on :16.10.2026 Saligram

...Petitioner Versus Papna Devi and Ors.

…Respondents.

Coram

Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the petitioner : Mr. Neel Kamal Sharma, Advocate.

For the respondent(s) : Nemo.

Bipin Chander Negi, Judge (Oral)

The present petition has been preferred against the impugned order dated 18.06.2026, whereby the appeal preferred by the present petitioner/plaintiff against the non- grant of stay by the learned trial Court on an application preferred under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure has been rejected.

2. Suffice it to state that the dispute in the case at hand pertains to Khasra No.115. The specific allegation made in the plaint, specifically in paragraph 6 thereof, is that the petitioner along with other co-sharers, namely Rikhi Ram, 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes

Swaroop Chand, and Subhash Chand, present respondents/defendants, are co-owners in possession over Khasra Nos.234/137 and 115. As per the averments made in the plaint, it has been categorically averred that Rikhi Ram, Swaroop Chand, and Subhash Chand have raised construction over Khasra No. 234/137, and the petitioner/plaintiff is in possession over Khasra No.115. It is further submitted that Khasra No.115 is totally vacant and is valuable. It has further been averred that in Khasra No.234/137, there is vacant land.

3. In response thereto in the written statement, it has categorically been averred that Rikhi Ram, Swaroop Chand, and Subhash Chand, along with the present petitioner/plaintiff, have raised construction over Khasra No.234/137 in the shape of residential houses. Further, it is categorically stated in the written statement filed by the respondents/defendants that Khasra No.234/137, measuring 8 marlas, is totally covered by the present petitioner/plaintiff and other co-sharers. It is further averred in the written statement that the respondents/defendants along with another co-sharer, namely Banarsi Dass, have not covered any portion of Khasra No.234/137. Accordingly, It has further been averred in the written statement that insofar as Khasra

No.115, measuring 5 marlas, is concerned, the same is in the exclusive possession of the respondents/defendants and the other co-sharer, namely Banarsi Dass.

4. No replication has been filed by the present petitioner/plaintiff.

5. In the aforesaid facts and attending circumstances, the trial Court, in its order dated 27.09.2024, correctly came to the conclusion, based on an appreciation of law, that a co- sharer cannot be restrained from raising construction over the joint land except when the acts of the co-sharer results in the ouster of the other or is detrimental to the rights of the co- sharers. It has been correctly pointed out by the trial Court that nothing has been placed on record to show that the acts of the respondents/defendants in the case at hand amount to ouster of the petitioner/plaintiff from the joint land.

6. The aforesaid finding so returned has not been interfered with by the First Appellate Court, vide impugned judgment dated 18.06.2026. Suffice it to state that the appeal preferred before the First Appellate Court being an appeal on principle, the scope of interference is limited. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727, titled Wander Ltd. & Anr. Vs. Antox India Pvt.

Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph. (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.”

7. In the aforesaid facts and attending circumstances, the scope of interference in a petition preferred under Article 227 of the Constitution of India is restricted and limited. Interference under the correctional jurisdiction vested in terms of Article 227 of the Constitution of India, can only be exercised to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, and Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181).

9. In the case at hand, for the reasons stated herein above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India.

10. In view of the aforesaid facts and attending circumstances, this Court finds no reason to interfere with the well-reasoned orders passed by the learned trial Court and affirmed by the Appellate Court.

11. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of.

(Bipin Chander Negi) Judge 16th October, 2026 (Gaurav Rawat)