____________________________________________________ vs Subhash Kumar & Others on 6 April, 2026

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    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.

    SPONSORED

    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?

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    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,

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    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

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    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,

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    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.

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    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.

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    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

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    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 illegal

    and without any order of a competent
    authority/ officer ? OPP

    of

    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

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    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-1

    of

    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.

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    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.

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    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

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    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 herein

    contained shall affect any law for the time
    being in force relating to transfer of property to

    or 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.

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    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 made

    only by a registered instrument.

    In the case of tangible immovable property of a
    value less than one hundred rupees, such transfer

    of
    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

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    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

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    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

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    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 consideration

    before a three-Judge Bench of this Court in
    Radhey Shyam & another v. Chhabi Nath &
    Ors.
    1 This Court held that judicial orders of

    civil courts are not amenable to a writ of
    certiorari under Article 226, though they may

    be questioned in the supervisory jurisdiction of
    the High Court under Article 227 of the
    Constitution. The power under Article 227 is

    intended 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

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    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)

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