IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO 44 of 2010. Decided on August 4, 2010. Onkar Nath & Another …. Petitioners. Versus Bimla Devi & another ... Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant Mr. Ajay Sharma, Advocate. For the respondents Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. Surjit Singh, Judge (Oral). Petitioners, who are defendants in a civil suit, instituted by respondents-plaintiffs, feel aggrieved by order, dated 10.2.2010 of learned District Judge, whereby, accepting appeal of respondents-plaintiffs, against the order dated 8.1.2010 of learned trial Court, by which order, their application under Order 39 Rules 1 and 2 CPC had been dismissed, the said application has been allowed and the petitioners-defendants have been restrained from proceeding with construction of a house on Khasra No. 337, measuring 1173 square meters. Whether reporters of the local papers may be allowed to see the judgment? - 2 - 2. Respondents-plaintiffs have filed a suit for issuance of permanent prohibitory injunction, restraining the petitioners-defendants from raising any construction on Khasra No. 337, which, according to them, is Shamlat Deh and on which, the residents of the area have the right to raise their abadis, as petitioners-defendants have already utilized more than their share in the shamlat area, meant for abadi. According to plaintiffs, the total area of Shamlat land, reserved for abadi, comprising in four numbers, is 1627 square meters and area of Khasra No. 337 alone, is 1173 square meters. Plaintiffs ‘case is that a major portion of Khasra No. 337, has already been utilized by petitioners-defendants under their abadi and now they want to utilize more area by raising additional construction. 3. Plaintiffs also filed an application for temporary injunction. Trial Court dismissed that application, taking the view that entire area of Khasra No. 337, measuring 1137 square meters, was shown to be in possession of petitioners-defendants. Learned District Judge, in appeal, has reversed the order of the trial Court and held that all the four Shamlat numbers, reserved for abadi, have total area, measuring 1627 square meters and the petitioners-defendants, having - 3 - already utilized a substantial portion of Khasra No. 337, cannot be allowed to raise further abadi, unless it is found that their share in the total Shamlat area, reserved for abadi, is more than the area, already utilized by them. 4. I have heard learned counsel for the parties and gone through the record. 5. Plea raised by the petitioners-defendants is that earlier also, there was their abadi on the site, where they intend to raise new construction. They place reliance upon a report of Tehsildar, who visited the spot. Though, the report does say that defendants had earlier one old structure, measuring 9x17 cubits, on Khasra No. 337, but there is no reference in the report that structure, which the petitioners-defendants now intend to raise, would be on the site of the aforesaid old structure. Petitioners-defendants, as per site plan, attached with the plaint, already have a house, partly tin roofed and partly slate roofed, with a verandah, a tube well and a water tank, on Khasra No. 337. Site plan shows that they have covered more than half of the area of Khasra No. 337. Report of Tehsildar does not say that the site of the old structure is still lying vacant or it has not been utilized in the - 4 - construction of existing house or the tube well structure or the water tank. 6. In view of the above stated position, I feel there is an arguable case and the balance of convenience is also in favour of the respondents- plaintiffs. Consequently, petition is dismissed. 7. Parties are directed to appear before the trial Court on 31.8.2010. Learned trial Court is directed to make every endeavour to dispose of the suit, at the earliest possible, and in any case, before 31.3.2011. Record of the trial Court be returned, with a copy of this order. August 4, 2010 (PC). (Surjit Singh), J.