( 2026:HHC:18481 )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO No. 369 of 2025.

Reserved on: 15

th

May, 2026.

Decided on : 20

th

May, 2026.

Dandu Ram & Anr. .....Petitioners.

Versus

Krishan Chand alias Krishan Lal & Ors.

....Respondents.

Coram:

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting?

1

For the Petitioners: Mr. Shrawan Dogra, Senior

Advocate with Mr. Tejasvi Dogra,

Advocate.

For the Respondents: Mr. Sanjeev Kuthiala, Senior Advocate

with Ms. Tamanna Sharma, Advocate.

Romesh Verma, Judge.

The present petition arises out of the judgment as

passed by learned District Judge, Bilaspur in Civil Misc. Appeal No.

22/14 of 2022 dated 20.06.2025, whereby the appeal preferred by

the present respondents/plaintiffs was decided by directing the

trial Court to appoint a commission to see whether the defendants

1

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

2 ( 2026:HHC:18481 )

exceeded their right by making railing, in such a manner so as to

obstruct the passage made to the house of the plaintiffs.

2. The facts of the case are that the plaintiffs filed a suit

for declaration to the effect that they are entitled to get their half

share partitioned from the defendants in the suit land which is in

totality measures 13 bighas situated in Village Panyala, Tehsil

Ghumarwin, District Bilaspur. In addition, a decree of permanent

prohibitory injunction has also been prayed for by restraining the

defendants from raising construction of any kind over any part of

the suit land and particularly from installing gate over the road

which leads from the house of the plaintiffs to the main road

through courtyard of defendants. In alternative, decree for

mandatory injunction has been prayed for, seeking directions

against the defendants to remove the obstruction or gate if

installed on the aforesaid road. It is the case of the plaintiff that

they have constructed a road to their house on the suit land which

connects the house to main road. The said road was constructed

by the plaintiffs with the consent of the defendants. That a

compromise was effected between the parties before the Lok

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Adalat and the same was exhibited as Ex. PX. The case of the

plaintiffs is that the defendants despite entering into the

compromise obstructed the right of user of road of the plaintiffs

through the suit land and threatened to construct a gate in such a

manner so as to deny the plaintiffs’ right to ply vehicles upto their

house.

3. Along with the suit, an application under Order 39,

Rules 1 and 2 of the CPC was also preferred by the

plaintiffs/respondents.

4. The suit was contested by the defendants/petitioners

by filing written statement raising various preliminary objections.

On merits, the averments made in the plaint have been refuted

and denied. The allegations of obstruction to the user of path

available to the house of the plaintiff was specifically denied. It is

the case of the defendant that the plaintiffs have got no right or

title to claim passage through the court yard of the house of the

defendants. The defendants have prayed for dismissal of the suit

as filed by the plaintiff.

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5. The defendants contested the the application filed by

the plaintiffs under the provisions of Order 39, Rules 1 and 2 of the

CPC. The defendants also filed an application under Order 39,

Rule 4 of the CPC for the vacation of the interim injunction as

passed by the learned trial Court.

6. Learned trial Court vide its order dated 5.8.2022,

decided the both the aforesaid applications. The relevant portion

thereof reads as under:-

“In view of the aforesaid discussion and considering

the fact that the suit land is jointly owned by the parties,

the application is only partly allowed to the extent that

the respondents may install a gate to protect their

property but with a condition not to obstruct in any way

the access to the house of the applicants. Regarding the

remainder of the suit land, the parties are directed to

maintain status quo qua nature, possession and

construction. It is further clarified that the gate, if

installed, shall not be locked without the consent of the

applicants and if the respondents wish to lock the gate

then they shall provide a duplicate key of the same to the

applicants.”

7. It was ordered by the learned trial Court vide order

dated 5.8.2022 that the defendants may install a gate to protect

their property but with a condition not to obstruct in any way the

5 ( 2026:HHC:18481 )

access to the house of the applicants/plaintiffs. As per the

findings rendered by the learned trial Court, regarding remainder

of the suit land, the parties were directed to maintain status quo

qua nature, possession and construction. It was further ordered

that the gate, if installed, shall not be locked without consent of

the plaintiffs and if the defendants wish to lock the gate then they

shall provide a duplicate key of the same to the plaintiffs.

8. Against the said order, as passed by the learned Trial

Court on 05.08.2022, the plaintiffs/respondents preferred an

appeal under Order 43, Rule1(r) of the CPC before the learned

District Judge, Bilaspur. During the pendency of the appeal, the

plaintiffs/respondents filed an application under Section 151 of the

CPC for removal of the railing on the spot affixed by the

defendants/petitioners, in addition to the gate allowed by the

learned trial Court vide its order dated 05.08.2022. Learned trial

Court vide its order dated 28.09.2022 allowed the said application

subject to payment of costs of Rs.2000/- and the defendants were

directed to remove the railing installed over the suit land. The

6 ( 2026:HHC:18481 )

SHO Police Station Ghumarwin was directed to see to it personally

that the said railing is removed as directed.

9. Against the said order dated 28.09.2022, the

defendants/petitioners preferred Civil Revision No. 156 of 2022

before this Court. This Court vide its judgment dated 26.03.2024,

allowed the civil revision filed by the defendant and the order as

passed by the learned trial Court on 28.09.2022, whereby, the

defendants were directed to remove the railing installed over the

suit land was quashed and set aside.

10. The appeal which was preferred by the plaintiffs under

Order 43, Rule 1(r) of the CPC against the order as passed by the

learned trial Court on dated 05.08.2022 came to be decided by the

learned District Judge, Bilaspur on 20.06.2025. The learned

District Judge affirmed the findings as rendered by the learned

trial Court but subject to modification by passing direction in the

appeal. Learned District Judge directed the trial Court to appoint

commission to see whether the defendants exceeded their right

by making railing, in such a manner so as to obstruct the passage

made to the house of the plaintiffs. Further, direction has been

7 ( 2026:HHC:18481 )

given that commissioner concerned, shall view the width of the

entire road leading from the house of the plaintiffs till the

metalled road and take corrective measures forthwith under the

directions of the learned trial Court.

11. Feeling dissatisfied, the defendants/petitioners have

approached this Court by filing the instant petition under Article

227 of the Constitution of India.

12. It is contended by Shri Shrawan Dogra, learned Senior

Advocate assisted by Mr. Tejasvi Dogra, learned counsel for the

petitioners/defendants that the findings/observations as returned

by the learned appellate court are erroneous and are liable to be

set aside. He would submit that learned District Judge has gone

astray in the matter and while ignoring the findings as rendered

by this Court in Civil Revision No. 156 of 2022, he has passed the

impugned judgment. He submits that after accepting the present

petition, the observations and findings as rendered by the learned

District Judge are required to be quashed and st aside.

13. On the other hand, Mr. Sanjeev Kuthiala, learned

Senior Advocate assisted by Ms. Tamanna Sharma, learned

8 ( 2026:HHC:18481 )

counsel for the respondents/plaintiffs has defended the impugned

judgment as passed by the learned appellate court. He submits

that there is no error or perversity in the impugned judgment as

passed by the learned District Judge. The order which has been

passed by the learned appellate Court with respect to the

appointment of the local commissioner is legal, valid and

sustainable. He submits that the impugned judgment does not

warrant any interference and the present petition deserves to be

dismissed.

14. I have heard learned counsel for the parties and have

also gone through the material placed on record carefully.

15. The plaintiffs/respondents filed a suit for declaration

to the effect that they are entitled to get their half share

partitioned from the defendants in the suit land and in additional

they have also sought a decree for permanent prohibitory

instruction restraining the defendant from raising construction of

any kind over the part of the suit land and from installing gate

over the road which leads from the house of the plaintiff to the

main road through the courtyard of the defendants.

9 ( 2026:HHC:18481 )

The learned trial Court vide its order dated 05.08.2022, whereby

the application filed by the plaintiff under Order 39, Rules 1 and 2

of the CPC and the application filed by the defendants under

Order 39, Rule 4 of the CPC has held that the suit land is jointly

owned by the parties and the petitioners/defendants have been

permitted to install a gate to protect their property but with a

condition not to obstruct in any way the access to the house of the

plaintiffs/respondents. With respect to the remainder of the suit

land, the parties have been directed to maintain status quo qua

nature, possession and construction. There is positive direction

by the learned trial Court that the gate, if installed, shall not be

locked without the consent of the plaintiffs/respondents and if the

defendants/petitioners wish to lock the gate then they shall

provide a duplicate key of the same to the plaintiffs/respondents.

16. The defendants/petitioners accepted the said order

and they did not assail the said order. On the other hand, the

plaintiffs/respondents preferred an appeal under the provisions of

Order 43, Rule 1(r) of the CPC before the learned District Judge.

During the pendency of the said appeal before the first appellate

10 ( 2026:HHC:18481 )

Court, an application came to be filed before the learned trial

Court under the provisions of Section 151 of the CPC by the

plaintiffs/respondents for removal of the railing affixed by the

defendants/petitioner, in addition to the gate allowed by the

learned trial Court vide order dated 5.8.2022. Though, the said

application was allowed on 28.09.2022, however, the order as

passed by the learned trial court for removal of the railing

installed over the suit land was quashed and set aside by this

Court in C.R. No. 156 of 2022 vide order dated 26.03.2024.

17. The main dispute between the parties pertains to the

user of the passage by the plaintiffs from one side of the

courtyard of the house of the defendants which leads to the main

road. The plaintiffs claim user of passage from the land of the

defendant on the basis of a compromise which was effected

between the parties before the National Lok Adalat. In the said

compromise, there is mention of the path, though, there are no

details of the dimensions of the path/road, but the fact remains

that the case was compromised between the parties. This Court

while deciding the Civil Revision No. 156 of 2022 has already held

11 ( 2026:HHC:18481 )

that the passage exist on the spot to the house of the plaintiffs.

This fact has also been observed by the learned trial Court while

passing the interim injunction.

18. The perusal of the judgment passed by this Court in

C.R. No. 156 of 2022 reveals that this Court has already

adjudicated upon the point in controversy by holding that the

installation of the railings by the defendants, in addition to the

gate cannot per se said to be violation of the order passed by the

learned trial Court. This court further came to the conclusion in

para-19 that the order which was passed by the learned trial Court

on dated 28.09.2022 virtually amounts to decreeing the suit of the

plaintiffs. Therefore, the dispute narrows down to a very limited

extent, whereby it can be inferred from the record that there is a

passage over the suit land which leads to the house of the

plaintiffs from the public road. Though, it is a disputed fact, which

is yet to be adjudicated upon by the learned trial Court on the

strength of independent evidence that what is dimensions of the

said road. One party alleges that there is four feet passage over

the suit land and in counter the other alleges that the same is

12 ( 2026:HHC:18481 )

about 8 feet motorable road. The said fact has to be proved by

the respective parties by adducing evidence in the trial. The

learned appellate court though has upheld the order as passed by

the learned trial Court dated 05.08.2022, however, in the operative

portion of the judgment, he has directed the learned trial Court to

appoint a commission to see whether the defendants exceeded

their right by making railing, in such a manner so as to obstruct

the passage made to the house of the plaintiffs. In the considered

view of this Court, such observations and findings are contrary to

the findings as rendered by this Court in Civil Revision No. 156 of

2022, whereby this Court has categorically held that the

installation of the railing by the defendants in addition to the gate

cannot be per se said to be violation of the orders dated

05.08.2022 passed by the learned trial Court. It has been held in

para-18 of the judgment that it cannot be said in generality that in

every case the installation of gate on an immovable property will

serve its purpose by its installation with the help of supporting

pillars. It will depend in fact situation of each case. The purpose

of installation of a gate is to secure some premises. In case the

13 ( 2026:HHC:18481 )

premises are exposed and open from all other sides, the

installation of a gate merely on one side is for no purpose.

Whether the railing as installed along with the gate is in violation

or not has been determined by this very Court. Therefore, now

the observations and findings as returned by the learned District

Judge by holding that a commission be appointed to see whether

the defendants exceeded their right by making railing, in such a

manner so as to obstruct the passage made to the house of the

plaintiffs, are erroneous.

19. Admittedly, the suit is at its initial stage and the extent

and dimensions of the passage has to be determined by the

learned trial Court with the help and aid of the evidence which will

be adduced by the respective parties. The learned appellate

Court has virtually ordered the collection of evidence in support of

the plaintiffs. The onus to prove the interference is upon the

plaintiffs at the first instance. Whether there is any obstruction

or interference over the suit land has to be specifically pleaded

and proved by the plaintiffs. By returning the impugned findings,

the learned appellate court has gone astray in the matter and it

14 ( 2026:HHC:18481 )

virtually amounts to collection of evidence in favour of the

plaintiffs. Such procedure as adopted by the learned appellate

court is uncalled for. The learned appellate Court has not taken

into consideration the judgment/findings passed by this Court

with respect to the installation of railing, whereby this Court has

categorically came to conclusion that mere installation of railing

does not amount to violation by the defendants. As far as the

dispute with respect to length and breadth of the passage is

concerned, there is contentions and rival contentions of both the

parties. The same cannot be adjudicated upon in a slip shod

manner by direction the commission to adduce evidence in

support of a particular party. The said fact has to be ascertained

in the main trial by the respective parties. The learned District

Judge while deciding the appeal against the order passed under

the provisions of Order 39, Rules 1 and 2 could not have passed

such order.

20. The learned first appellate court had erred by passing

the aforesaid findings and observations despite the fact that he

has upheld the order of the learned trial Court dated 05.08.2022.

15 ( 2026:HHC:18481 )

The only question for the determination of the first appellate

Court was that whether the impugned order dated 05.08.2022 is

good or bad in the eyes of law. The appeal, which was preferred

before him was with respect to the legality of the impugned order

by the learned trial Court. On one hand, the learned appellate

Court upheld the order and on the other, it passed the order

which is totally alien and contrary to the order passed by the

learned trial Court. In the proceedings under Order 39, Rules 1

and 2 of the CPC , the court cannot direct the appointment of

commission in order to collect evidence in favour of a particular

party. It is well settled principle of law that the court will not come

to the aid of the parties and will not collect evidence for them. In

the judgment, which was passed by this Court in Civil Revision No.

156 of 2022, the issue pertaining to the railing has been put to

rest. Therefore, now it is within the domain of learned trial Court

to adjudicate the controversy between the parties on the basis of

independent evidence which will be adduced by them during the

course of the trial.

16 ( 2026:HHC:18481 )

21. Moreover, it is contended by the learned senior

counsel for the petitioners/defendants that in appeal, which was

preferred by the plaintiffs/respondents, this was never the case of

the plaintiffs for the appointment of a commission. The learned

District Judge, on its own and without appreciation of facts placed

on record directed the appointment of a commission, which in the

opinion of this court, for the aforesaid reasons, is erroneous and is

liable to be set aside.

22. The afore noted observations and findings as returned

by the learned District Judge are dehors the material placed on

record and cannot be sustained in the present proceedings.

23. Consequently, after accepting the present petition, the

observations and findings as returned by learned appellate court

by directing the trial Court to appoint a commission to see

whether the defendants exceeded their right by making railing, in

such a manner so as to obstruct the passage made to the house of

the plaintiffs and with further direction that the commissioner

concerned, shall view the width of the entire road leading from the

house of the plaintiffs till the metalled road and take corrective

17 ( 2026:HHC:18481 )

measures forthwith under the directions of the learned trial Court

are quashed and set aside.

24. In view of above discussions, the instant petition is

allowed with the aforesaid observations. Pending applications, if

any, also stand disposed of.

25. Before parting, it is made clear that any observation

made here-in-above shall not be taken as an expression of opinion

on the merits of the main case and the same shall be adjudicated

upon uninfluenced by any observation made here- in-above, which

are only for the purpose of the instant petition. Records be sent

back henceforth.

(Romesh Verma)

Judge

20

th

May, 2026.

(jai)