IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 145 of 2010. Date of decision: 1.7.2010. Parma Nand …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. G. D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. Advocate General with Mrs. Subh Mahajan, Dy. Advocate General, for respondents No. 1 & 2. Mr. Y.P.Sood, Advocate for respondent No. 3. Mr. K.D. Sood, Advocate, for respondent No. 4. Kuldip Singh, Judge (Oral). Caveat Petition No. 354 of 2010. Mr. Y.P.Sood, learned counsel has put appearance on behalf of caveator - respondent. The petition stands disposed of. CMPMO No. 145 of 2010. 2. The petitioner- plaintiff has filed petition under Art. 227 of Constitution of India against judgement dated 5.4.2010 passed by learned Addl. District Judge, Shimla in Civil Appeal No. 14-S/14 of Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2009 affirming order dated 17.11.2009 passed by learned Civil Judge (Junior Division), Jubbal in Civil Misc. No. 43/6 of 2009. 3. The facts in brief are that petitioner has filed a suit for permanent prohibitory injunction against the respondents praying mainly following reliefs:- (a) That the defendants may kindly be restrained permanently from raising the construction of car parking or any type of other construction over the suit land and also from changing its nature as well as from interfering in any manner over the suit land comprising above mentioned khasra No. 518/2, 518/3, 518/4, 634/1 and 628/1 which are the parts of new khasra numbers 518, 634 and 628 as submitted above, situated in revenue estate/ Mohal Nagar Panchayat Jubbal, Tehsil Jubbal Distt. Shimla Himachal Pradesh as per Tatima of Tafawat (difference) prepared by the settlement Naib Tehsildar Jubbal Circle on 27.6.2002 which has been enclosed with the plaint. (b) In case the defendant succeed in raising any type of structure over the aforesaid suit land or any part of it during the pendency of the suit, as they have also threatened and declared, in that event the defendants may also kindly be directed to dismantle and remove the said structure from the suit land at their own risk and cost. 4. The further case of the petitioner is that he is co-owner of land comprised in old khasra Nos. 5036 and 5037/2, Mauja Deora, Tehsil Jubbal, District Shimla vide jamabandi for the year 1981-82. In the recent settlement operation, some part of the above mentioned …3… land has been wrongly and illegally merged with new khasra Nos. 518, 628 and 634. On having come to know the wrong revenue entries, the petitioner applied for correction of revenue entries before the Settlement Collector, Shimla, who appointed Naib Tehsildar, Jubbal for inspection and verification and Naib Tehsildar, Jubbal submitted his report dated 27.6.2002 and found the objection of the petitioner correct and made report to the effect that some part of old khasra No. 5036 has been wrongly merged in new khasra No. 518 shown as new khasra Nos. 518/2, 518/3, 518/4 in the report dated 27.6.2002. It was also found that some portion of old khasra Nos. 5036 and 5037 was illegally merged with khasra Nos. 628 and 634 shown as khasra Nos. 634/1 and 628/1. The Naib Tehsildar has also reported that khasra Nos. 518, 628 and 634 have been wrongly shown in the ownership of State of Himachal Pradesh. The petitioner has contended that he is still in possession of khasra Nos. 518/2, 518/3, 518/4, 634/1 and 628/1. 5. The further case of the petitioner is that Settlement Collector had dismissed the application on 29.6.2004. The appeal filed against the order dated 29.6.2004 has been dismissed by Divisional Commissioner on 23.7.2008 and now the matter is pending before Financial Commissioner, Himachal Pradesh in revision. The case of the petitioner is that respondent No. 3 through respondent No. 4- contractor is illegally constructing car parking on the suit land and, therefore, the suit was filed. The petitioner has also filed an application under Order 39 Rules 1 & 2 CPC, which was dismissed by the learned Civil Judge on 17.11.2009 and the learned Addl. District …4… Judge on 5.4.2010 has affirmed the order of the Civil Judge, hence the petition under Art. 227 of Constitution of India. 6. The respondents No. 1 and 2 have filed joint written statement, whereas respondents No. 3 and 4 have filed separate written statements and contested the suit as well as the application filed under Order 39 Rules 1 & 2 CPC. The stand of respondents No. 1 and 2 is that State is the owner in possession of the suit land. The respondent No. 3 has taken the stand that no objection has been obtained from respondents No. 1 and 2 for constructing car parking. The respondent No. 4 has taken the stand that he has been engaged as contractor by respondent No. 3 for raising the construction. It has been submitted that car parking is to be raised by spending about Rs. 48 lacs and till now about Rs.20 lacs have been spent. The common stand of respondents No. 1 to 4 is that petitioner has no prima-facie case, balance of convenience and irreparable loss in his favour, rather these factors are in favour of the respondents. 7. I have heard the learned counsel for the parties. It is the admitted case of the parties that as of today the State of H.P. has been shown owner in possession of khasra Nos. 518, 628, 634 in the revenue record. The learned counsel for the petitioner has submitted that the revenue record showing the State of H.P. owner in possession of khasra Nos. 518, 628, 634 is wrong and it has been demonstrated by the report of Naib Tehsildar dated 27.6.2002 which has been approved by the Tehsildar on 27.6.2003. The learned Civil Judge has observed in the order dated 17.11.2009 that Naib Tehsildar has not carried out the demarcation as per the instructions. …5… Moreover, Naib Tehsildar was directed by the Settlement Collector during the correction proceedings to report and ultimately the Settlement Collector has rejected the application of the petitioner for correction of entries. In these circumstances, the report of the Naib Tehsildar does not survive independently and it has merged in the order of Settlement Collector. 8. The order of Settlement Collector has been affirmed by the Divisional Commissioner and the matter is pending before the Financial Commissioner. It has not been shown on behalf of the petitioner how the petitioner is owner in possession of land in dispute more particularly when the report of Naib Tehsildar dated 27.6.2002 has not been accepted by the competent authorities. The petitioner has failed to establish prima facie case in his favour. In so far as the balance of convenience and irreparable loss are concerned, those factors are also in favour of the respondents, inasmuch as, prima facie the State is owner of the land in dispute, the respondent No. 3 is constructing a car parking on the portion of the land in dispute with the consent of the State and has engaged respondent No. 4 as contractor. It has been submitted that sufficient amount has already been spent by the contractor for raising construction. In these circumstances, prima facie case, balance of convenience and irreparable loss are in favour of the respondents. 9. In addition, on behalf of the petitioner it has not been established that impugned order is without jurisdiction. The view taken by two courts below emerges from the material on record. The petitioner by way of prayer (b) has already prayed for dismantling of …6… structure raised during pendency of suit. The courts below have the jurisdiction to pass the impugned orders. The scope of interference under Art. 227 of Constitution of India is very limited. In the facts and circumstances of the case, the petitioner has failed to make out a case for interference. There is no merit in the petition. 10. No other point has been urged. 11. Resultantly, the petition fails and is accordingly dismissed. CMP No. 403 of 2010. 12. The interim order passed on 28.5.2010 is vacated and the application is dismissed. July 1, 2010. ( Kuldip Singh ), (Hem) Judge.