Himachal Pradesh High Court
____________________________________________________ vs Subhash Kumar & Others on 6 April, 2026
( 2026:HHC:10479 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 185 of 2022
Reserved on : 19.03.2026
.
Date of Decision: 06.04.2026
____________________________________________________
Jaswant Behl ...Petitioners.
Versus
Subhash Kumar & others .....Respondents.
of
Coram
Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting?1
For the petitioner: rt Mr. Neeraj Gupta, Senior Advocate
with Mr. Harshit Sharma, Advocate.
For the respondents:Mr. C.N.Singh and Mr. Anshul
Gandhi, Advocates.
__________________________________________________
Romesh Verma, Judge
The present petition arises out of the order as
passed by the learned Senior Civil Judge, Dharamshala, Distt.
Kangra, HP dated 08.04.2022, whereby the application filed by
the defendant/petitioner under the provisions of Order 23
Rule 3 of CPC read with Section 151 CPC for dismissing the
suit has been ordered to be dismissed.
2. The facts of the case are that the
plaintiff/respondents filed a suit under Section 34 and 38 of
Specific Relief Act for declaration and injunction to the effect
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
2 ( 2026:HHC:10479 )
that the plaintiff having been a tenant to the extent of ½ half
share of the land comprised in Khata No.1, Khatauni No.8,
.
Khasra No. 293 min, 294, 296, 297, 298, 299, 300, 301, 302,
484/321, 489/433 min, and 303 area measuring 29 kanal, 10
marlas situated in tika Dhyal, Mauza and Tehsil Dharamshala,
District Kangra, H.P. has become owner by operation of the
of
HP Tenancy & Land Reforms Act.
3. It was stated in the plaint that the defendants are
rt
very powerful and influential persons and they are
manipulating the transfer of very valuable piece of land, in
connivance with the revenue officials and during the
jamabandi for the year 1985-1986 got the plaintiff deleted
from the possessory column with respect to the Khasra Nos.
852, 859, 862, 863, 877, 878, 880, 881, 882, 884, 886 and 888
and showed the same in joint possession of all the co-owners,
without any rhyme or reason and without any order from a
competent officer or authority. However, the plaintiff continued
to exclusively possess the above land on the spot. It was
further averred that the defendants tried to dispossess the
plaintiff from the suit land. An attempt was also made by the
defendant No.1 to forcibly occupy and fence the suit land,
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
3 ( 2026:HHC:10479 )
though he is unaware about the location of the spot allegedly
purchased by him.
.
4. The said suit was contested by defendant No.1
by raising various preliminary objections such as
maintainability, cause of action, limitation, jurisdiction, estoppel
etc. The averments as made in the plaint were specifically
of
refuted. On merits, it was averred that the plaintiff cannot be a
tenant and co-sharer simultaneously in the same Khata. The
rt
plaintiff has not challenged the Sale Deed in favour of
defendant No.23 and the entry of the plaintiff in the earlier
revenue record showing him to be tenant, is just a mere paper
entry. In case the plaintiff is held to be a tenant over any part
of the suit land, in that case, the plaintiff has relinquished his
tenancy prior to the enforcement of H.P Tenancy & Land
Reforms Act and has become a co-sharer in the suit land by
way of purchase. All the averments as made in the plaint were
refuted by the defendants and prayed for the dismissal of the
suit.
5. The plaintiff filed the suit on 21.05.2012 and the
written statement was filed by defendant No.1 on 29.08.2012.
On 30.04.2022, the defendants filed an application under
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
4 ( 2026:HHC:10479 )
Order 23 Rule 3 read with Section 151 CPC for dismissing the
suit in accordance with the compromise/agreement dated
.
10.05.2013, 07.08.2013 and 28.01.2014. It was averred in the
application that the plaintiff entered into compromise with the
defendant No.1 vide agreement dated 10.05.2013, 07.08.2013
and 28.01.2014 with respect to the suit land and same is
of
within the knowledge of the plaintiff, who are the legal
representatives of Sh. Jai Dev. Plaintiff No.1(a) Sh. Subhash
rt
Kumar is also signatory to the said agreement and the same
is evident from the signatures as appended on the
compromise/agreement. Further, it has been averred that
compromise dated 28.01.2014 is counter signed by Sh. Vijay
Kumar, who is the son in law of Sh. Jai Dev. It has been
averred that the plaintiff accepted and received the said
amount towards the agreement and the plaintiff had agreed to
withdraw the present suit, as well as the partition appeal.
6. That the original plaintiff had admitted the
defendant No.1 to be the lawful owner in possession of the
land of Khasra No.1281/721, 833, 831, 832, 887, 908, 719,
726, 727, 728, 1299/ 880, 881, 1301/ 882, 1303/884,
1305/886, 888, 1298/880, 885, 858, 861, 720, 1282/721,
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
5 ( 2026:HHC:10479 )
1279/854, 856, 857, 1280/854, 722, 723, 724 measuring 01-
28-82 hectares of Muhal Dhial Mauja and Tehsil
.
Dharamshala, District Kangra, H.P. It was stated that since
the family dispute has been settled only by way of a lawful
agreement/ compromise in writing, therefore, the suit may be
dismissed and suit may be decreed in accordance with the
of
compromise. The said application was filed on 30.04.2022.
7. The application under Order 23 Rule 3 of CPC
rt
was contested by the plaintiffs by filing reply, whereby, the
contents of the application were refuted. It was stated that Sh.
Jai Dev, the original plaintiff passed away on 10.05.2015 and
he was substituted by his legal representatives well within the
time. It was stated that no agreement came to the notice of
the Court from the LRs until the present application was filed
by the defendants. It was further submitted that the
agreements are not the deeds of transfers, and as such
agreements if held to be genuine, can be enforced by
defendant No.1. The copies of the agreements dated
10.05.2013, 07.08.2013, 28.01.2014 have been placed on
record along with the present petition.
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
6 ( 2026:HHC:10479 )
8. Learned trial Court vide its impugned order
dated 08.04.2022 dismissed the application filed by the
.
defendant/ petitioner under the provisions of Order 23 Rule 3
CPC read with Section 151 of CPC.
9. Feeling aggrieved, defendant No.1/ petitioner has
approached this Court.
of
10. It is contended by the learned Senior Counsel
appearing for the petitioner that impugned order is erroneous
rt
and liable to be quashed and set-aside. He submits that the
learned trial Court has not decided the application in hand
strictly in accordance with provisions of Order 23 Rule 3 CPC
and learned Trial Court has misdirected itself by passing the
impugned order. He further submits that it is apparent from
the perusal of the agreements that after receiving the amount
the original plaintiff, the predecessor-in-interest of the present
respondent had agreed to withdraw the suit from the Courts
below. However, the successor of original plaintiff did not
honour the said agreements. It was in this background that the
application was filed and it ought to have been allowed by the
learned Trial court.
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
7 ( 2026:HHC:10479 )
11. On the other hand, Mr. C.N.Singh, learned
counsel for the respondents has defended the order as
.
passed by the learned trial court dated 08.04.2022. He
submits that the conduct of defendant No.1/petitioner is not up
to the mark and the application, which has been filed at the
fag end is just to prolong the matter and to harass the plaintiff
of
so that the suit is not finally decided.
12. I have heard the learned counsel for the parties.
rt
The perusal of the case file reveals that the plaintiffs filed the
present suit before the Court of learned Senior Civil Judge on
21.05.2012. The defendant No.1 filed written statement to the
plaint on 29.08.2012. The learned trial court on 03.07.2019
framed the following issues:
“1. Whether the plaintiff has been in
possession of the suit land as tenant and
has now become owner of the suit land,as prayed for ? OPP
2. Whether the entry made during the
Bandobast Jadid, showing lesser
possession of the plaintiff on the suit land is
wrong, illegal and contrary to the facts ?
OPP::: Downloaded on – 07/04/2026 20:31:12 :::CIS
8 ( 2026:HHC:10479 )
3. Whether the plaintiff continues to
possess the suit land as before, and further
entry in the jamabandi for 1985-86 showing.
him in joint possession of the land which
he held exclusively is also wrong and illegaland without any order of a competent
authority/ officer ? OPPof
4. Whether the plaintiff is entitled for
injunction against the defendants ? OPP
rt
5. Whether the plaintiff has no cause of
action, as alleged ? OPD
6. Whether the suit is barred by time ? OPD
7. Whether the suit barred under Section
171 of the H.P.Land Revenue Act ? OPD
8. Whether the plaintiff is estopped by his
own acts, conduct etc. as alleged ? OPD
9. Whether the suit is not correctly valued ?
OPD
10. Whether the plaintiff has not
approached the Court with clean hands ?
OPD::: Downloaded on – 07/04/2026 20:31:12 :::CIS
9 ( 2026:HHC:10479 )
11. Whether the suit is bad for non-joinder
of necessary parties ? OPD.
12. Whether the plaintiff cannot be a tenant
and also an owner ? OPD
13. Whether the defendant No.1 is a
bonafide purchase ? OPD-1of
14. Whether the plaintiff has no locus
standi to file the suit ? OPD-23
rt
15. Relief.”
13. The learned trial court directed the respective
parties to adduce evidence in support of their contentions to
corroborate their respective case and thereafter, the case was
put up for the plaintiff evidence on taking steps for 11.09.2019.
It is admitted by the learned counsel for the parties that the
plaintiffs have concluded their evidence and the case is now at
the stage of leading evidence by the defendants.
14. It has also been observed by the learned trial
Court that suit is pending since long and no steps have been
taken by the defendant No.1 for producing his witnesses. The
application under Order 23 Rule 3 read with 151 has been filed
on 30.04.2022.
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
10 ( 2026:HHC:10479 )
15. Mr. C.N.Singh, learned counsel for the
respondents stated that the original plaintiff died on
.
10.05.2015 and the legal representatives of the said plaintiff
were brought on record well within time. He submits that
without conceding that even if it is presumed that the alleged
agreements had been executed between the parties after the
of
filing of the written statement, even then, the defendant No.1
has failed to show due diligence and he has not been able to
rt
convince that after the filing of the written statement till 2022
when the application in hand was filed, why defendant no.1
remained mum. He submits that neither during the lifetime of
the plaintiff, any steps were taken by defendant No.1 to place
on record the said agreements nor after the death of the
original plaintiff who died on 10.05.2015. That after the death
of the original plaintiff, the application in hand has been filed
after the lapse of more than 7 years, that too at the stage,
when the matter was fixed for the evidence of the defendants.
He further submits that the plaintiff is fighting for its cause for
more than 14 years, and even as of today, the evidence has
not been concluded on account of the fact that application
Under Order 23 Rule 3 CPC was filed in the year 2022.
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
11 ( 2026:HHC:10479 )
16. The learned counsel for the petitioner has
placed heavy reliance on the photocopies of the agreements
.
placed on record as Annexures E-1, E-2 and E-3. He submits
that by virtue of agreements, the plaintiff admitted the
defendant No.1 to be the owner of the land in question and
that after receiving the amount, the plaintiff has transferred the
of
title of the suit land to the defendant No.1. He submits that
even after receiving the amount as per the agreement, the
rt
plaintiff has failed to withdraw the suit as per the terms and
conditions of the compromise.
17. The provision of Order 23 Rule 3 CPC reads as
follows.:-
“(3) Where the Court is satisfied,–
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for
the subject matter of suit or part of a claim, It
may, on such terms as it thinks fit grant the
plaintiff permission to withdraw from such suit
or such part of the claim with liberty to institute
a fresh suit in respect of the subject-matter of
such suit or such part of the claim.”
18. The learned Senior counsel has placed heavy
reliance on the provisions of Order 23 Rule 3 of CPC and in
view of the averments as made in the application for the
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
12 ( 2026:HHC:10479 )
dismissal of the suit, the prayer of the petitioner ought to have
been allowed as per the learned counsel for the petitioner.
.
19. The transfer of immovable property is governed
by the provision of Transfer of Property Act ( for short T.P.Act)
and Section 5 of the T.P. Act defines transfer of property as
follows:-
of
“5. “Transfer of property” defined.–
In the following sections “transfer of property”
rt
means an act by which a living person
conveys property, in present or in future, to
one or more other living persons, or to himself,2 [or to himself] and one or more other living
persons; and “to transfer property” is to
perform such act.
3 [In this section “living person” includes a
company or association or body of individuals,
whether incorporated or not, but nothing hereincontained shall affect any law for the time
being in force relating to transfer of property toor by companies, associations or bodies of
individuals.”
20. The transfer of Property Act envisages five
different modes for transferring a property with one of the
mode I.e. by way of sale and the same is dealt under Section
34 of the Transfer of Property Act which defines sale and
contract for sale as follows:
“Sale is transfer of ownership in ex-change for a
price paid or promise or part paid and part
promised.
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
13 ( 2026:HHC:10479 )
54. “Sale” defined.–“Sale” is a transfer of
ownership in exchange for a price paid or
promised or part-paid and part-promised.
.
Sale how made.–Such transfer, in the case of
tangible immovable property of the value of one
hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be madeonly by a registered instrument.
In the case of tangible immovable property of a
value less than one hundred rupees, such transferof
may be made either by a registered instrument or
by delivery of the property.
Delivery of tangible immovable property takes
rt
place when the seller places the buyer, or such
person as he directs, in possession of the
property.
Contract for sale.–A contract for the sale of
immovable property is a contract that a sale of
such property shall take place on terms settled
between the parties.
It does not, of itself, create any interest in or
charge on such property.”
21. In the present case heavy reliance is being
placed on the photocopy of the agreements purported to have
been executed between the plaintiff and the defendant.
Contract for sale of immovable property is a contract that sale
of such property shall take place on terms settled between the
parties while sale is transfer of a ownership, a contract for sale
is merely a document creating a right to obtain other
document, namely, registered sale deed to complete the
transaction of sale of an immovable property. Section 54 in its
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
14 ( 2026:HHC:10479 )
definition of sale does not include an agreement of sale and
neither confers any proprietary rights in favour of the
.
transferee nor by itself create any interest of charge on such
property. The seller without any reasonable excuse avoids
executing a sale deed, the buyers can proceed to file a suit for
specific performance of the agreement.
of
22. As per the settled position of law, an agreement
to sell does not confer valid title, as it is not a registered deed
rt
of conveyance under the T. P.Act.
23. The legal exposition in this regard has been
settled by the Hon’ble Apex Court in the case of Ramesh
Chand vs Suresh Chand in Civil Appeal No. 6337 of 2012
dated 1.09.2025. Therefore, the learned trial Court has rightly
rejected the application filed by defendant No.1 under the
provisions of Order 23 Rule 3 read with Section 151 of CPC
for the dismissal of the suit. The prayer for the dismissal of
the suit by defendant No.1 in the view of this Court is not
sustainable in view of the provision of the law. The defendant
No.1 instead of availing appropriate remedy in accordance
with the law, filed the present application at the belated stage
when the evidence of the plaintiff was closed and the case
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
15 ( 2026:HHC:10479 )
was listed for the evidence of the defendants. As observed by
the learned trial Court, defendant no.1 even did not take steps
.
for producing his witnesses and he filed the application for
dismissal of the suit under the provisions of Order 23 Rule 3 of
CPC .
24. Even otherwise, there is no explanation in the
of
application what prevented him to file the present application
after filing of the written statement as admittedly the said
rt
agreements were entered after the filing of the written
statement. Neither during the life time of the original plaintiff,
who died in the year 2015, any such application was filed and
even after the death of the original plaintiff in 2015 the present
application has been instituted after elapse of more than
seven years and there is no iota of explanation what
prevented the defendant No.1 from placing on record the
such documents. The learned trial Court has dismissed the
application by taking into consideration the provision of under
Order 23 Rule 3 CPC. This Court is of the opinion that
defendant No.1 has not been able to make out the case for
the dismissal of the suit, especially, in view of the purported
photocopy of the agreements as placed on record. The
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
16 ( 2026:HHC:10479 )
learned trial court framed the issues on 03.07.2019 and the
parties have been afforded opportunity to lead evidence in
.
support of their contentions. The defendant has got the right to
rebut the case of the plaintiff and to lead evidence on the
issues on which onus is upon him. The application seems to
have been filed just to prolong the matter.
of
25. The Hon’ble Apex Court has dealt with the scope
of interference in a petition under Article 227 of Constitution of
rt
India in Civil Appeal No. 13801 of 2025, titled Shri Digant
vs. M/S P.D.T. Trading Co. & others, has held as under:-
“22. The scope of High Court’s jurisdiction
under Articles 226/227 fell for considerationbefore a three-Judge Bench of this Court in
Radhey Shyam & another v. Chhabi Nath &
Ors. 1 This Court held that judicial orders ofcivil courts are not amenable to a writ of
certiorari under Article 226, though they maybe questioned in the supervisory jurisdiction of
the High Court under Article 227 of the
Constitution. The power under Article 227 isintended to be used sparingly and only in
appropriate cases for the purpose of keeping
the subordinate courts and tribunals within the
bounds of their authority and not for correcting
mere errors. The power may be exercised in
cases occasioning grave injustice or failure of
justice such as when (i) the court or tribunal
has assumed a jurisdiction which it does not
have, (ii) has failed to exercise a jurisdiction
which it does have, such failure occasioning a
failure of justice, and (iii) the jurisdiction though
available is being exercised in a manner which::: Downloaded on – 07/04/2026 20:31:12 :::CIS
17 ( 2026:HHC:10479 )tantamounts to overstepping the limits of
jurisdiction.”
26. The Apex Court has held that the judgment/order
.
as passed by the courts below cannot be reversed/set-aside
while exercising the powers under Article 227 of Constitution
of India till the time, same is found to be perverse.
of
27. In the opinion of this Court, the impugned order
does not call for any interference, therefore, the present
rt
petition being devoid of any merit is dismissed.
28. Before parting, it is made clear that any
observation made here-in-above is meant only for the
disposal of the present petition and the same shall not be
construed to be the expression on the merits of the main
case.
All pending miscellaneous application(s), if any,
shall also stand disposed off, accordingly.
(Romesh Verma)
Judge
April 6, 2026
(Nisha)
::: Downloaded on – 07/04/2026 20:31:12 :::CIS
[ad_1]
Source link
