IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 182 of 2010 Date of decision: 6.9.2010 Sh.Jagta & ors. …. Petitioners Versus Smt.Kamla Devi ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No. For the petitioners: Mr.Ajay Kumar, Advocate with Mr.Suneet Goel, Advocate. For the respondent: Mr.Ajay Sharma, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. By means of this petition, the petitioners (herein referred to as the ‘defendants’) have challenged the order of the learned District Judge, Kangra dated 20.2.2010 whereby he has affirmed the order passed by the learned Trial Court directing the defendants to maintain status quo qua construction, cutting trees and changing the nature of suit land in any manner themselves or through their servants, assignees, agents and administrators till the disposal of the suit or till the 2 suit land is not partitioned in accordance with law by competent authority. 2. Briefly stated the facts of the case are that the plaintiff Smt.Kamla Devi is the sister of defendant No.1 Sh.Jagta. She claims to be a joint owner with the defendant No.1 on the Shamlat land falling to the share of their family. It is alleged in the suit that the defendant No.1 had sold some portion of the suit land in favour of defendants No.2 to 4 where defendants No. 2 to 4 are raising construction. In the written statement, it is alleged that the defendants No.2 to 4 purchased the land vide sale deeds dated 10.10.2002 and 30.5.2007 and they are running a hotel under the name of ‘Asia Health Resort’ right from 10.10.2002. The stand of the defendants is that since the defendants are in possession of the Shamlat land, the plaintiff has no right to get the suit land partitioned. 3. At this stage, this Court cannot go into this question as to whether the suit land can be portioned or not. The undisputed facts of the case are that the plaintiff is the sister of the defendant No.1. Whether she has some inherent right to get the land partitioned is something which will have to be decided after the 3 evidence is led and at this stage, nothing can be conclusively said about the rights of the parties. However, it cannot be said that the plaintiff has no prima facie case whatsoever. Admittedly, some building has already been raised on a portion of the suit land on which a hotel is standing and is being run for the last 8 years. Under the garb of this order, the defendants cannot be restrained from running the hotel operations nor can they be restrained from maintaining the hotel in a proper manner. 4. Keeping in view the rival contentions of the parties and the balance of convenience, I feel that the order of the learned courts below needs to be partially modified. The defendants are restrained from raising any further construction on the suit land. They shall also not cut any trees or change the nature of the suit property in any manner. They shall however, have a right to run the hotel and maintain the same. Maintenance would mean normal day to day repairs including white-washing, repair of the roofs and bathrooms etc. but will definitely not include the raising of any fresh construction. 4 5. To ensure that no further construction is raised, Sh. Vipul Bhardwaj, Advocate, Dharmshala is appointed as Commissioner, who shall visit the spot within one week of the respondent-plaintiff producing a copy of this order before him. He shall thereafter take photographs and video of the construction of the hotel as it exists on date and place the same on the file of the learned Trial Court. His fee is assessed at Rs. 7500/- and shall be paid by the petitioners herein. 6. The petition is disposed of in the aforesaid terms. No order as to costs. Dasti copy. September 6, 2010 ( Deepak Gupta ) (m) Judge