CMPMO/368/2026 on 9 October 2026

1 2026:HHC:44717 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. : 368 of 2026 Decided on : 09.10.2026 Onkar Singh

…Petitioner Versus The State of Himachal Pradesh and another …Respondents

Coram

The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr.

Peeyush

Agnihotri, Advocate. For the respondents : Mr. H.S. Rawat and Mr. Mohinder Zharaick, Additional Advocates General, with Mr. Rohit

Sharma,

Deputy Advocate General. Virender Singh, Judge. (Oral) Petitioner-Onkar Singh has filed the present petition, under Article 227 of the Constitution of India, against the order, dated 30th March, 2026, passed by the learned Additional District Judge-I, Una, District Una, H.P. (hereinafter referred to as ‘the First Appellate Court’), in 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

2 2026:HHC:44717 Civil Miscellaneous Appeal No. 60/2025, titled as Onkar Singh versus The State of Himachal Pradesh and another.

2. Vide order, dated 30th March, 2026, the learned First Appellate Court has dismissed the appeal, preferred by the petitioner, which he had filed against the order, dated 10th December, 2025, passed by the Court of learned Senior Civil Judge, Una, District Una (hereinafter referred to as ‘the trial Court’) in Civil Miscellaneous Application Registration No. 176/2024, which has been filed in Civil Suit No. 21/2024, titled as Onkar Singh versus State of H.P.

3. By virtue of order, dated 10th December, 2025, the learned trial Court has dismissed the application under Order 39 Rules 1 and 2 of the CPC, filed by the petitioner, in the said Civil Suit.

4. For the sake of convenience, parties to the lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.

5. Brief facts, leading to the filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:

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6. Plaintiff-Onkar Singh has filed the suit for declaration to the effect that the land, measuring 0-01-20 hectares, denoted by letters ABCD, as shown in red colour, in the site plan, being eastern part of Khasra No. 3823/1639 (old Khasra No. 1639), comprised of Khewat No. 855 min, Khatauni No. 1356 min, as entered in Jamabandi, for the year 2017-18, situated in Mohal Rampur, Tehsil and District Una, H.P. firstly owned by defendant No. 1 and now, allotted to defendant No. 2, which is 3 meters in width and 40 meters in length, is being used by the plaintiff and proforma defendant, as passage to approach their holdings, bearing Khasra Nos. 1650, 1652, 1654, from the time immemorial (hereinafter referred to as ‘the suit land’).

7. The said suit has been filed by the plaintiff on the ground that he and proforma defendant are joint owners in possession of the land, measuring 0-28-76 hectares, bearing Khasra Nos. 1650, 1652, 1654, comprised of Khewat No. 808, Khatauni No. 1272, as entered in Jamabandi for the year 2017-18, situated in Village Rampur, Tehsil and District Una, H.P.

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8. According to the plaintiff, due to inefficiency or negligence on the part of the revenue officials, nature of the aforesaid land of Khasra Nos. 1650, 1652 and 1654 has wrongly been recorded as Gair Mumkin Khad, whereas, at the spot, the same is cultivable land.

9. It is the further case of the plaintiff that towards the southern side of the land of plaintiff, there exists Khasra Nos. 3822/1639 and 3823/1639. Both these khasra numbers were carved out from the old Khasra No. 1639, owned by defendant No. 1. Defendant No. 1 has allotted the said land to defendant No. 2, vide mutation No. 2469, dated 24th March, 2023. On the south side of these two khasra numbers, there exists Khasra No. 3824/1639, which is a pucca road, being used by the general public at large, including the plaintiff and proforma defendant to approach Press Club, Sainik Hospital, NGO Bhawan, as well as, their landed property.

10. As per the further case of the plaintiff, the suit land, being on the eastern side of Khasra No. 3823/1639, denoted by letters ABCD, shown in red colour, which is 3 meters in width and 40 meters in length, is being used by

5 2026:HHC:44717 the plaintiff and proforma defendant as passage to approach their holdings.

11. According to the plaintiff, when, defendants No. 1 and 2 had started obstructing the passage, then, a legal notice was served upon them and despite service of the legal notice, when, the notice was not responded, then, the present suit has been filed, with the prayers, as made in the plaint.

12. Defendants No. 1 and 2 have filed the written statement, by taking the preliminary objections that the suit is not maintainable; the plaintiff has no locus standi; the plaintiff has not approached the Court with clean hands and have suppressed the true and material facts from the Court; the plaintiff is estopped from filing the present suit on account of his own act and conduct; that no cause of action has accrued in favour of the plaintiff and have prayed that the suit is liable to be dismissed with cost.

13. On merits, the factual position, as asserted in the plaint, has been denied by pleading that the nature of

6 2026:HHC:44717 the land, bearing Khasra Nos. 1650, 1652 and 1654 has rightly been recorded as Gair Mumkin Khad.

14. According to defendants No. 1 and 2, neither the plaintiff nor proforma defendant had ever cultivated the land. They have admitted that a pucca road is situated nearby the land, comprising Khasra No. 3823/1639, which is a public passage, leading to ECHS Poly Clinic and Fire office.

15. The other allegations have also been denied by defendants No. 1 and 2.

16. It is the further case of defendants No. 1 and 2 that defendant No. 1 has transferred the said land, bearing Khasra Nos. 3822/1639 and 3523/1639, Kitta 02, measuring 0-13-55 hectare as per Jamabandi, for the year 2017-18, in favour of Department of Fire Services, for construction of employees’ residences. The existence of the passage, as alleged by the plaintiff, has also been disputed.

17. Thus, the defendants have prayed for the dismissal of the suit.

18. Alongwith the suit, application, under Order 39 Rules 1 and 2 CPC has also been moved with a prayer to

7 2026:HHC:44717 restrain the defendants from interfering, in any manner, either themselves or through their workers, employees,contractors, agents or any person authorized in this behalf either by raising construction or otherwise, blocking and creating any hurdle in the passage, which is the subject matter of the lis, during the pendency of the suit.

19. The said application has also been contested, by the defendants, on the similar grounds, upon which, the suit has been contested and a prayer has been made to dismiss the application.

20. The learned trial Court, after hearing learned counsel for the parties, has dismissed the said application, vide order, dated 10th December, 2025.

21. The said order has been assailed by the plaintiff, unsuccessfully, by filing Civil Miscellaneous Appeal No. 60/25, before the learned First Appellate Court, and after dismissal of the said appeal by the learned First Appellate Court, the plaintiff is before this Court, by way of the present petition, filed under Article 227 of the Constitution of India.

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22. The scope of interference, by this Court, under Article 227 of the Constitution of India, is very limited, as has been held by the Hon’ble Supreme Court in K. Valarmathi & Ors. Versus Kumaresan, 2025 INSC 606. Relevant para 9 of the judgment, is reproduced, as under: "Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227."

23. In a recent decision in Nandi Infrastructure Corridor Enterprises Ltd. & Anr. versus B. Gurappa Naidu & Ors., 2026 INSC 434, the scope of interference, under Article 227 of the Constitution of India, has again been explained by the Hon’ble Supreme Court. Relevant para-35 of the said judgment, is reproduced, as under: “35. In short, the principles laid down in the above matters is as follows:

a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals.

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b) It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record.

c) The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.” (Self emphasis supplied)

24. Moreover, under Article 227 of the Constitution of India, this Court cannot re-assess or review the material, which was taken into consideration, by the learned trial Court. While holding so, the view of this Court is being guided, by the decision of Hon’ble Supreme Court, in Vinay Raghunath Deshmukh versus Natwarlal Shamji Gada and another, 2026 INSC 416. Relevant paragraph- 16 of the judgment is, reproduced, as under: “16. Yet another aspect that goes to the root of the matter is that the tenants challenged the order passed by the Appellate Bench permitting the amendment by filing a writ petition under Article 227 of the Constitution of India. It is well settled that in exercise of such jurisdiction, it would not be open for the High Court to review or reassess the material that was taken into

10 2026:HHC:44717 consideration by the Court while passing the impugned order. In this regard we may usefully refer to the decision in Raj Kumar Bhatia Vs. Subhash Chander Bhatia, wherein a three Judge Bench of this Court held as under: “11 ……The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227.” Thus, the discretion exercised by the Appellate Bench while allowing the amendment was not liable to be interfered with in exercise of the Article 227 of the Constitution of India, especially when there was no error of jurisdiction nor a statutory bar for permitting the plaint to be amended based on subsequent events.” (Self emphasis supplied)

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25. Being guided by the above decisions of Hon’ble Supreme Court, now, this Court would proceed further to ascertain the fact, whether the order, passed by the learned trial Court, as upheld by the learned First Appellate Court, requires any interference, by this Court or not.

26. The learned trial Court, in the present case, after relying upon the revenue entries, which carry presumption of truth, has dismissed the application. The suit land, bearing Khasra No. 3823/1639 has been recorded in the ownership and possession of State of Himachal Pradesh and as per the note made on the document, the Khasra Nos. 3822 and 3823 were allotted to Fire Brigade Department. In the column of kind of land, the same has been mentioned as banjar kadeem.

27. The plaintiff could not prove the existence of prima facie case in his favour before the learned trial Court and the suit is also lacking the essential particulars to claim the right of way by way of easement of necessity. Considering all these facts, this Court is of the view that the learned trial Court has rightly exercised the jurisdiction

12 2026:HHC:44717 vested it, in dismissing the application, filed under Order 39 Rules 1 and 2 of the CPC, which has rightly been upheld by the learned First Appellate Court. The same does not require any interference by this Court. Consequently, the petition is dismissed.

28. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present petition.

29. Pending applications, if any, shall also stand disposed of accordingly.

30. Send down the record.

( Virender Singh ) Judge October 09, 2026 ( rajni )