HANS RAJ AND OTHERS vs JITENDER AND OTHERS

2026:HHC:47536
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 644 of 2026
Date of decision: 30.10.2026
_____________________________________________________________________________
Hans Raj and others …Petitioners
Versus
Jitender and others …Respondents
____________________________________________________________________________

Coram
Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

1
Whether approved for reporting? Yes.
_____________________________________________________________________________
For the Petitioners. Mr. Jeet Singh, Advocate.
For the Respondents: None for respondent No. 1 to 3.
Mr. Raj Negi, Deputy Advocate General, for
respondent No. 4.
__________________________________________________________
Vivek Singh Thakur, Judge
This petition has been preferred against the orders dated
07.10.2026 and 13.10.2026, passed by Civil Judge, Court No. 5, District
Shimla, H.P., in Civil Miscellaneous Application No. CMA/1981/2026 and
Suit for Declaration No. 91/2026 whereby, passing of an order of
injunction has been deferred by the Trial Court by granting opportunity to
the respondents to file reply to the application for interim injunction.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. It has been submitted on behalf of plaintiffs-petitioners that
defendant-respondent No. 3 has sold a specific portion in Khasra No.
287, out of land measuring 0-04-58 hectare, to defendant-respondent
Nos. 1 and 2, and defendant-respondent No. 4 (Sub-Registrar) has
committed an illegality by registering the sale deed of specific portion
from the joint land comprised in Khasra Nos. 287, 773, 774, 776, and
1000. According to him, sale of land out of Khasra No. 287 was and is not
permissible to defendant-respondent No. 3, who is one of the co-
sharers/co-owners along with the plaintiff-petitioners.
3. Copy of Jamabandi has been placed on record as Annexure
P-3, which depicts that land comprised in aforesaid Khasra numbers is
jointly owned and possessed by the plaintiffs-petitioners and defendant-
respondent No. 3 along with other co-sharers/co-owners.
4. Copy of the sale deed has also been placed on record as
Annexure P-4, whereby defendant-respondent No. 3 has sold his share,
measuring 0-02-00 hectare, out of land comprising Khasra No. 287
measuring 0-04-58 hectare, situated in Mohal Basantpur, Patwar Circle
Basantpur, Tehsil Sunni, District Shimla, to defendant-respondent Nos. 1
and 2.
5. It is not the case of petitioners-plaintiffs that share of
defendant-respondent No. 3 in Khasra No. 287 is less than 0-02-00
hectare, rather, during the course of addressing arguments, learned
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counsel for the petitioners-plaintiffs has admitted that defendant-
respondent No. 3 has 7/16 share in the joint land. From the sale deed, it
is apparent that defendant-respondent No. 3 has sold only 7/16 share
measuring 0-02-00 hectare out of 0-04-58 hectare comprised in Khasra
No. 287, and he has not exceeded the limits of his share while selling this
share in favor of defendant-respondent Nos. 1 and 2.
6. Defendant-respondent No. 3 has not sold a specific portion
of Khasra No. 287 and, therefore, mention of handing over possession of
the share of defendant-respondent No. 3 in favour of defendant-
respondent Nos. 1 and 2 does not amount to handing over possession of
a specific portion of Khasra No. 287, but it amounts to handing over
possessory rights of the co-sharer in favour of the purchaser. Therefore,
on the basis of the sale deed, defendant-respondent Nos. 1 and 2 cannot
claim possession over a specific portion of Khasra No. 287, rather, they
have become joint owners in Khasra No. 287 by purchasing the share of
defendant-respondent No. 3, and for any further action or specifying their
share, they have to take appropriate steps for partition of Khasra No. 287,
and, therefore, plea of the petitioners-plaintiffs that defendant-respondent
No. 3 has sold a specific portion out of the joint land is not correct, as
evident from the material placed on record.
7. Though, in the sale deed as well as mutation, it has been
recorded that the seller has handed over possession to the purchasers,
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but entries in the mutation depict that only ownership of share has been
recorded in favour of purchasers/defendant-respondents No. 1 and 2 in
Khasra No. 287 and, therefore, purchasers/defendant-respondent Nos. 1
and 2 have no exclusive right on any definite portion of Khasra No. 287,
and for carrying out any activity on the land, as they are not natural co-
sharers, they have to take appropriate steps for partition of Khasra No.
287.
8. Perusal of the memo of parties of plaint depicts that
defendant-respondents Nos. 1 and 2 as well as defendant-respondent
No. 3 have been arrayed as defendants being purchasers and seller
respectively, whereas Sub-Registrar, Sunni, has been arrayed as
defendant-respondent No. 4, being a Registering Authority of sale deed,
who has not only registered sale deed and attested mutation, but has also
reflected in the mutation that possession of land sold by defendant-
respondent No. 3 to defendant-respondent Nos. 1 and 2 has also been
delivered on the spot.
9. From the sale deed, it is evident that instead of selling a
specific portion of Khasra No. 287, share of defendant-respondent No. 3
therein has been sold by respondent No.3 to defendant-respondent Nos.
1 and 2. The Khasra No.287 is joint in ownership and possession of
numerous share-holders. Therefore, unless it is partitioned, there is no
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occasion or right to hand over possession of specific portion in this
Khasra No. 287.
10. As noticed supra, in mutation also, name of defendant-
respondent No. 3 in the column of ownership has been shown to be
replaced by defendant-respondent Nos. 1 and 2 in equal shares, but
keeping the entry column of ownership as well as possession, entries of
the rest of the joint owners/co-sharers as per the entries in the column of
ownership and possession in Jamabandi. No specific portion/Khasra
number has been carved out, out of Khasra No. 287 measuring 0-02-00
hectare, instead Khasra number has also been kept intact in the column
of number of Khasra and nature of land in the revenue record.
11. However, apprehension of plaintiffs-petitioners of
interference or raising construction on specific portion of land in Khasra
No.287, which is in ownership and possession of various co-owners/co-
sharers is not without any basis, as vague observations recorded in
mutation may create an impression that some specific portion has been
handed over by defendant-respondent No. 3 to defendant-respondent
Nos. 1 and 2.
12. In order passed in application filed for interim injunction, it
has been observed by the Trial Court that since the State has also been
impleaded as party, it would be appropriate to pass any order of
injunction on merits. Accordingly, vide order dated 07.10.2026, only
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notice was issued to defendant-respondent Nos. 1 to 4 returnable on
13.10.2026.
13. On 13.10.2026, defendant-respondent Nos. 1 to 3 were
present in person with Mr. Pradeep Verma, Advocate representing them,
and respondent No.4, i.e. Sub-Registrar, was duly represented by
Assistant District Attorney. However, instead of passing any interim
injunction or dismissing the application for interim injunction, the
application was adjourned on the request made by ADA, seeking time to
file reply to the application, with observation that it was already made
clear to the counsel for the applicant that injunction order will be passed
on merits.
14. Trial Court has failed to notice that no stakes of the State
are involved in the suit. In fact, State is not a party, it is the Sub-Registrar,
Sunni, who has been arrayed as a party for the reason that he had
registered the sale deed and attested mutation in favour of defendants
No.1 & 2 with endorsement of handing over of possession by defendant-
respondent No. 3 to them (defendant-respondent Nos. 1 and 2).
15. Possession of land sold and purchased could not have been
handed over by indicating a specific portion. Instead, on purchasing share
of defendant-respondent No. 3, purchasers (defendant-respondent Nos. 1
and 2) have entered in his shoes as co-owners, and in case they intend to
have possession of specific portion of land, they have to resort for
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partition of joint land, at least of Khasra No. 287, wherein they have
purchased the share of defendant-respondent No. 3.
16. It is evident that State is not going to lose anything either
way, because decree of suit, or dismissal thereof shall not have any
impact or interest on the State. Thus, Trial Court has committed an error
by not passing any order, either in favour or against plaintiffs-petitioners,
on the first date or even on second date, despite the fact that copy of
Jamabandi , sale deed, and mutation indicating the aforesaid
circumstances have already been placed on record, as informed by
learned counsel for the plaintiffs-petitioners.
17. With aforesaid observations, I am of the considered opinion
that Trial Court, instead of deferring passing of any order on the pretext
that State is a party, should have taken decision on merits, either for
granting interim injunction or denying the same on the basis of material
before it. However, instead of doing so, a lame excuse has been taken by
the Trial Court that State is a party and, therefore, order in the application
shall be passed on merit only, but not ex parte or in absence of reply of
the State.
18. Ex parte injunction order or order even after service of the
defendants but before filing their reply, has also to be and should be on
merits only.
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19. The notion that order in application on merits can only be
passed after filing of reply by the defendants-respondents, is also
misconceived. Even an ad-interim ex parte injunction order has to be
passed on merits only, on the basis of material placed before the Court
and by taking into consideration a prima facie case, the likelihood of
irreparable loss to either side, as well as the balance of convenience.
20. The Trial Court should have undertaken this exercise on the
very first date or on the subsequent date, as there is no rule that in case
there is merit in favour of plaintiffs-petitioners for granting ad-interim
injunction, there is necessity to wait for reply of the State, particularly
when no stakes of the State are involved in the matter.
21. Where there are stakes of State involved in the suit and/or
passing of interim injunction is going to impact or have adverse impact on
the State, there may be necessity of issuing notice to the State first, and
for that purpose Government Advocates are always available in the
Court. In this case also, Government Advocate was there, who, according
to Trial Court itself, did not make any specific argument, but sought only
time to file reply to the application.
22. In the given facts and circumstances and material placed
before me, I am of the considered opinion that there was sufficient
material on record to pass an order directing the parties to maintain status
quo regarding the nature and user of the land till the application for
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interim injunction is decided on merits, with right reserved in favour of
defendant-respondent Nos. 1 and 2 to get the land partitioned for
identifying the specific portion of jointly owned Khasra No. 287 falling in
share of defendant-respondent No. 3 purchased by them. Therefore,
ordered accordingly.
23. Order passed by the Trial Court is modified to the aforesaid
extent and Trial Court shall reflect this modification in its order also with
any further condition, if so warranted on the basis of material already on
record. However, this order shall be subject to final outcome of the
application preferred by the plaintiffs-petitioners for interim injunction.
24. Needless to say, not only defendant-respondent Nos. 1 and
2, but plaintiffs-petitioners or any other joint owner/co-sharer shall also
have right to get the joint land partitioned
25. It is made clear that application for interim injunction shall be
decided by the Trial Court on the basis of material placed before it by the
parties, assessing and evaluating merits thereof, but without being
influenced by observations made in this order, which have been made on
the basis of limited material available on record at the instance of
plaintiffs-petitioners, and defendants-respondents have yet to file the
reply to the application and written statement to the main suit, and they
may have certain other documents depicting other side of the story, if
any, which shall have to be considered by the Trial Court for disposing of
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the application for interim injunction as well as final adjudication of the
suit.
26. With aforesaid modification, present petition is disposed of.
Pending application(s), if any, also stand(s), disposed of.
(Vivek Singh Thakur),
Judge.
th
30 October, 2026
(Susheel)
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