CMPMO/47/2026 on 31 July 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 47 of 2026 Date of Decision: 31.07.2026. _____________________________________ Hema Devi and another ...Petitioners. Versus Jaswant Singh … Respondent. _____________________________________

Coram:

Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting? 1 For the petitioners: Mr. H.K.S. Thakur, Advocate. For the respondent: Mr. J.S. Bagga, Advocate. _____________________________________ Romesh Verma

, Judge

(oral):

The instant petition has been filed against the judgment as passed by the learned District Judge, Solan, dated 5th January, 2026, whereby the appeal filed by the respondent/defendant came to be allowed and the order as passed by the learned Senior Civil Judge, Kasauli, District Solan, H.P., dated 12th September, 2024 was reversed, whereby the application filed by the petitioners/plaintiffs under Order XXXIX Rules 1 & 2 CPC was allowed.

Whether the reporters of the local papers may be allowed to see the judgment?

2. The facts, as emerge in the present case, are that the plaintiffs/petitioners filed a suit for declaration and permanent prohibitory injunction against defendant No.1, restraining him from causing dispossession of the plaintiffs and proforma-defendants from the suit land. It is the case of the plaintiffs that defendant No.1 has purchased part of the suit land from proforma defendants and that on the basis of the sale deed, he preferred an application for partition of the land under Section 123 of the HP Land Revenue Act before the Assistant Collector First Grade, Solan, on 12th September, 2012. As per the case, as set up by the plaintiffs, the Assistant Collector took cognizance of the application.

3. Zimni orders reveal that summons were issued to the parties, however, those could not be served for want of correct addresses. It is the case of the plaintiffs that while conducting the partition, the Assistant Collector did not adhere to the provisions as envisaged under the HP Land Revenue Act and the partition proceeding is illegal, wrong, null and void, and not binding upon the rights of the plaintiffs. Therefore, it was prayed that a decree for permanent prohibitory injunction be passed, restraining the defendants from alienating the suit land with further prayer seeking a decree for declaration to the effect that the sale deed registered in the office of Sub-Registrar, Solan and the mutation as attested on the basis of the sale deed, be declared as void ab initio and further declaration to the effect that the partition proceedings, as effected by the Assistant Collector, First Grade, Solan, pertaining to the suit land, have not been carried out in conformity with the fundamental principles of judicial procedure and the same are null and void.

4. The said suit came to be resisted by defendant No. 1 by raising preliminary objections with respect to maintainability, cause of action, non-joinder, limitation, etc. On merits, all the averments as made in the plaint were specifically refuted and denied. It was contended by defendant No. 1 that by virtue of the registered sale deed, he has become the owner of the suit land; therefore, the plaintiffs have got no right, title or interest over the suit land.

5. The plaintiff along with the suit, filed an application under Order 39 Rules 1 and 2 CPC with the prayer that during the pendency of the suit, an injunction order be passed in favour of the applicants/plaintiffs and against the respondents/defendants, restraining them from dispossessing the plaintiffs from the suit land, or claiming any exclusive rights, alienating the suit land, changing the nature of the suit land or interfering in the suit land, either themselves or through their agents, servants, contractors, etc.

6. The said application was vehemently contested by defendant No. 1 and he prayed for the dismissal of the application being devoid of any merit.

7. In the written statement, a specific defense was taken by defendant No.1 that the present suit is not maintainable in view of the provisions of Order 9 Rules 4, 7, 8, and 9 of the CPC, as earlier a civil suit for declaration and permanent prohibitory injunction titled Devender Singh Chauhan & others v. Varinder Kumar & others, bearing Civil Suit No. 23/1 of 2010, was decided by the Court and in the said suit, an application was filed under Order 39 Rule 1 and 2 CPC, which came to be dismissed on 21.09.2010. Therefore, it was averred that in view of the filing of the earlier suit and the dismissal of the application under Order 39 Rules 1 and 2 CPC, the present suit is not maintainable.

8. Learned Senior Civil Judge, Kasauli, District Solan, vide its order dated 12th September 2024, allowed the application filed by the plaintiffs, whereby the respondents were directed to maintain status quo regarding nature and possession of the suit land till the disposal of the main suit.

9. The defendant/respondent, feeling dissatisfied, by the order as passed by the learned trial Court approached the learned District Judge, Solan, by filing an appeal under Order 43 Rule 1 of CPC against the said order.

10. The learned First Appellate Court, vide its impugned judgment dated 5th January 2026, accepted the appeal as filed by the defendant and dismissed the application, which was filed by the plaintiffs under Order 39 Rule 1 and 2 CPC.

11. Feeling dissatisfied, the plaintiffs have approached this Court by filing the instant petition under Article 227 of the Constitution of India.

12. It is specifically contended by the learned counsel for the petitioners that the learned trial Court, while allowing the application of the plaintiffs, has come to the conclusion that while conducting the partition, the procedure as prescribed has not been properly followed.

13. The learned counsel for the petitioners has drawn the attention of this Court to the order as passed by learned Senior Civil Judge, especially paragraphs 15, 16, 17, 18, 19 and 20, which read as under:- “15. Perusal of copy of zimni order, dated 16.06.2014, passed by the AC Ist Grade goes to show that in the summonses issued to parties to partition application, some of the parties were reported to be residing at distant places and one Sh. Hukam Singh, was reported to be dead. Vide orders, dated 16.06.2014 and 22.07.2014, the respondent was directed to file correct addresses of aforesaid parties and to file details of LRs of Sh. Hukam Singh.

16. Furthermore, perusal of copy of summons issued to Smt. Radha shows that the same was received back unserved with the report that she was residing at Bilaspur. Similarly, summons issued to Smt. Hema, i.e. applicant No.1, was received back unserved with the report that she was residing at Solan, summons issued to Sh. Vinod was received back unserved with the report that he was residing at Ambala, summons issued to Smt. Sandhya @ Sharda, i.e. applicant No.2, was received back unserved with the report that she was residing at Village Chatera, summons issued to Smt. Santosh was received back unserved with the report that she was residing at Solan, summons issued to Sh. Narender was received back unserved with the report that he was residing at Bangalore, summonses issued to Smt. Radha, Sh. Devender and Smt. Hema were received back unserved with the report that they were residing at Panchkula, summons issued to Sh. Vikram was received back with the report that he was living in Australia and summons issued to Sh. Hukam Singh was received back unserved with the report he had died.

17. Noticeably, thereafter, order, dated 17.10.2024, came to be passed by the AC Ist Grade, which prima facie appears to be wrong. Vide aforesaid order, the respondent was directed to furnish correct addresses of persons abovenamed and at the same time, the respondent was also directed to take steps to effect services of persons abovenamed by way of publication in a daily newspaper. No reasons were mentioned in aforesaid order by AC Ist Grade that he was satisfied that persons abovenamed could not have been served in ordinary way and therefore, were required to be served by way of substituted service, i.e. by way of publication in daily newspaper.

18. It is strange that how a person reported to be living in Australia at the to partition application, was served by way of publication in a daily newspaper circulating in the State of H.P. It is also strange that how persons reported to be residing at Panchkula, Haryana, could have been served by way publication in a daily newspaper circulating in the State of HP.

19. Be that as it may, the provision under Section 21 of HP Land Revenue Act providing mode of service of summons, nowhere provides that service of parties to partition application can be effected by way of publication. This section provides that the summons is to be served as far as possible personally to the person to whom it is addressed and if the summons is not served personally then to recognized agent of such person. The section further provides that in case acceptance of service so made is refused, the service can be effected by way of affixation of copy of summons at the last known residence of such person and if the last known residence is outside the local jurisdiction of the revenue officer, then the summons can be affixed at some conspicuous place in the estate in which the land is situated.

20. Whereas, in the partition proceedings qua suit land, the service of summonses was not effected as per the procedure detailed in Section 21 of HP Land Revenue Act. In opinion of this court, since, the parties to the partition application were not properly served, therefore, there is weight in the contention of the applicants that the revenue authority failed to adopt proper procedure provided for partition of land.”

14. The learned trial Court after perusing the record came to the conclusion that since the partition proceedings qua the suit land appear to be wrong, therefore, the rights and interests of the plaintiffs/applicants deserve to be protected. He further submitted that the First Appellate Court, while reversing the said findings, has not touched those points which were determined and adjudicated by the learned trial Court. He further submitted that once the First Appellate Court was seized of the matter, then it was incumbent upon him to have, at least, taken into consideration the points, which were

determined by the learned trial Court. He submitted that on account of the non-consideration of those findings as returned by the learned trial Court, great prejudice has been caused to the petitioners. On the other hand, Mr. J.S. Bagga has defended the impugned judgment as passed by the learned First Appellate Court.

15. This Court is in agreement with the contentions as raised by the learned counsel for the petitioners. The perusal of the judgment rendered by the learned trial Court shows that after perusing the zimni orders of the partition proceeding as conducted by the Assistant Collector First Grade, dated 4.02.2012, the trial Court, while giving the findings, prima facie, came to the conclusion that the partition proceedings appear to be wrong.

16. The record shows that the learned First Appellate Court has not adjudicated and touched those points, which were decided by the learned trial Court. This Court is in agreement with the contentions as raised by the learned counsel for the petitioners that in the absence of non- adjudication of the findings as determined by the learned trial

Court, the impugned judgment is not sustainable while reversing the order of learned trial Court the learned First Appellate Court ought to have gave the reasoning while upsetting the findings of learned Senior Civil Judge Kasuali, District Solan, H.P.

17. Without touching the merits of the case or commenting upon anything on the main case, this Court is of the considered opinion that after setting aside the judgment as passed by the learned First Appellate Court, the parties are required to be relegated to the court of learned District Judge for deciding the appeal afresh on its own merits. The parties undertake to appear before the learned First Appellate Court on 17th August 2026.

18. Needless to point out that the learned District Judge shall not issue fresh notices to the parties, as the learned counsel for the parties have undertaken to appear before the said court on the date given hereinabove. The learned First Appellate Court shall decide the appeal afresh after affording an opportunity of being heard to both the parties.

19. With these observations, the present petition is disposed of, so also pending miscellaneous applications, if any. (Romesh Verma) Judge

31st July, 2026 (Guleria)