IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OSA No. 11 of 2008 Judgment reserved on: 3.8.2009 Date of decision: 11.8.2009 Madhavinder Singh ……..Appellant Vs. Manvinder Singh ……. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ajay Kumar, Advocate. For the Respondent : None. This is an appeal against the order dated 30.9.2008 passed by learned Single Judge in OMP No.367 of 2008 in Civil suit No.59 of 2006. 2. The facts in brief are that appellant has filed Civil Suit No.59 of 2006 for passing preliminary decree for partition and putting the appellant in separate possession of his share. The suit is being contested by respondent No.1, the respondents No.2 has admitted the claim of the appellant. The issues were framed in the Whether the reporters of the local papers may be allowed to see the Judgment? …2… suit on 24.9.2008. The suit is pending for recording the evidence of the respondent No.1. 3. In the suit the appellant has prayed relief with respect to property known as Villette Estate, Khalini, Shimla, one shop in Khan Market, New Delhi, landed property in village Dabwala Kalan, Tehsil Fazilka, District Ferozepur (Punjab) and 1/7th undivided share in No.8 Friends Colony (West), New Delhi. The respondent No.1 has contested the suit by filing written statement in which he has taken several preliminary objections including the objection that appellant has no locus standi to file and maintain the suit property as he is neither owner nor in possession of property known as Villette Estate, Khalini, Shimla. The change in revenue entries on the basis of award is wrong. The respondent No.1 was neither party nor he had given authority to any person for the award. The award which was made the rule of the Court on 25.4.1997 is not binding on respondent No.1. The Court has no jurisdiction with respect to the properties mentioned in clauses ( b) to (d). On merits also the respondent No.1 has contested the claim of the appellant and has prayed for dismissal of the suit. 4. The appellant had filed an application under Order 39 rules 1 and 2 read with Sections 94 and 151 CPC and has submitted that he most of the time stayed at New Delhi. The respondent No.1 illegally and unauthorizedly had demolished some portion and started reconstruction activity in the cottage and servant quarters of Villette Estate, Khalini, Shimla, the respondent No.1 is also misusing the timber belonging to the parties which was …3… lying in Villette Estate. The respondent No.1 is likely to remove the timber to Naldehra where he is constructing some house. The respondent No.1 has even obtained some permit from the office of Divisional Forest Officer (Urban), Shimla for carrying the timber. The respondent No.1 has no right to remove any property or assets from Villette Estate, Khalini till the final decision of the suit. The respondent No.1 has also no right to make any illegal, unauthorized additions, alternations or construction of any kind on any portion of the suit property without the consent of the appellant and respondent No.2. The respondent No.1 has illegally removed the personal luggage, wearing apparels and beds of appellant from his bed room in Villette Estate and dumped them in the servant quarters, some furniture of appellant has been kept in the open. The respondent No.1 is also unauthorizedly using the property for the stay of strangers in the suit property and thereby he is misusing the same. The respondent No.1 has not taken any permission from the Municipal Corporation for carrying out any construction, repair or renovation activities on the suit property. The entire work is being done by the respondent No.1 illegally. 5. The appellant in the application has prayed for interim injunction against respondent No.1 from doing any construction, repair or renovation or demolition work in any portion of the Villette Estate, Khalini Shimla. It has also been prayed that respondent No.1 be restrained from removing any timber from Villette Estate, Khalini to Naldehra on the basis of transit permit obtained from Divisional Forest Officer(Urban), Shimla. The respondent No.1 be …4… restrained not to interfere with the joint possession of appellant in the suit property or disturb the occupation of the appellant with respect to two bed rooms in his occupation. A prayer has also been made that respondent No.1 be restrained not to misuse the property by allowing the outsiders and strangers to stay inside the said property. 6. The application has been contested by respondent No.1 by filing reply. The respondent No.1 has denied that he has illegally and unauthorizedly demolished any portion of the suit property and has started reconstruction activity on any part of the suit property i.e. Villette Estate, Khalini. He has submitted that appellant has nothing to do with respect to property known as Villette Estate, Khalini. It has been pleaded that the claim of appellant has already been denied by respondent No.1 in his written statement. 7. The respondent No.1 has submitted that due to heavy rains the annexe got damaged extensively and partially collapsed. The respondent No.1 with his own money started repairing the same. The appellant has nothing to do with the wood (timber). The respondent No.1 is entitled to 1/3rd portion of the wood for which permit was obtained from the competent authority on 23.7.2008 which was valid upto 5.8.2008, but respondent No.1 had not taken the wood in pursuance to the permit 8. It is also the case of respondent No.1 that on 6.8.2008 appellant came with some Gundas from Punjab and had shown revolver to S.K. Chadda authorized person of respondent No.1 who …5… was staying in Villette Estate. The appellant had given an undertaking not to create such problems in future and compromise was effected on 6.8.2008 itself. The matter was reported to the police by S.K. Chadda. The respondent No.1 had only carried out some repairs and not new construction. The appellant had no luggage, wearing apparels and beds as he never stayed in Villette Estate, Khalini. The respondent No.1 is entitled to take away the timber with prior permission of the forest officials under the law. He has pleaded that necessary repairs, renovations, constructions etc. are required for saving the property. The respondent No.1 has prayed for dismissal of the application with the prayer that he may be permitted to carry out the necessary repairs, renovations, constructions etc. which are required for saving of the building. 9. Heard learned counsel for the appellant, none appeared on behalf of the respondents. The learned counsel for the appellant has submitted that evidence of the appellant has been concluded in affirmative but respondent No.1 has not yet started his evidence. He has submitted that prima facie case, balance of convenience and irreparable loss are in favour of the appellant and against respondent No.1. Ex.PW-3/Z-7 is the copy of jamabandi for the year 1999-2000, in which the appellant has been recorded as one of the owners in possession of the suit property situated at Khalini, Ex.PW-3/B is the copy of decree, Ex.PW-3/C is the copy of judgment, Ex.PW-3/D is the copy of application for making award rule of the Court and Ex.PW-3/E is copy of award. These documents have established ownership and …6… possession of appellant of Villette Estate, Khalini. The learned counsel for the appellant has submitted that it is clear from the stand of respondent No.1 that he has raised some constructions and some timber is lying in the Villette Estate, Khalini. The appellant has filed suit for partition. It is in the interest of both the parties to maintain status quo regarding the suit property as it exits on the date of the filing of the suit or at least when the application for interim relief was filed. The respondent No.1 has filed no application for seeking any interim relief. In the application of appellant relief has been wrongly granted to respondent No.1 vide order dated 30.9.2008. 10. We have considered the submissions of learned counsel for the appellant. Prima facie on the basis of Ex.PW-3/Z- 7, Ex.PW-B, Ex.PW-3/C, Ex.PW-3/D and Ex.PW-3/E, the appellant is one of the co-sharers of Villette Estate, Khalini. He has every right to enjoy the property along with other co-sharers till Villette Estate, Khalini is partitioned in accordance with law and parties are put in possession of their respective shares. Thus prima facie case, balance of convenience and irreparable loss are in favour of appellant. The appellant has placed some photographs on record in order to show that respondent No.1 is carrying out some construction works. In the photographs some construction material is lying scattered. We are not commenting whether construction shown in the photographs is new construction or repair so that it may not prejudice the case of either side but it is clear from the photographs that some construction activity is in progress …7… in the Villette Estate, Khalini. The respondent No.1 has not denied in the reply that photographs annexed with the application are not of Villette Estate, Khalini. The respondent No.1 at this stage cannot be permitted to use the timber on the pretext that he has right to use 1/3rd timber lying in the Villette Estate, Khalini. In case, respondent No.1 is permitted to use the timber then it will be difficult to ascertain whether infact he has actually used 1/3rd timber. In any case, the respondent No.1 has no right to use any material lying in the Villette Estate, Khalini for his exclusive use. There is substance in the grievance of the appellant that when he filed the application for interim relief his application either should have been allowed or dismissed but in the application of appellant no relief could have been given to the respondent No.1 11. The respondent No.1 has defended his action by pleading that he has not raised any construction but he has repaired his property which was damaged in heavy rains. He has also come forward with the plea that he has right to use 1/3rd timber. The suit is pending; therefore, no party can be given liberty to raise construction on any part of Villette Estate, Khalini, Shimla. The new construction if permitted will complicate the issue and may lead to multiplicity of litigation between the parties. It is in the interest of both the parties to maintain status quo as existing today with respect to nature and possession of Villette Estate. 12. In light of above discussion the appeal is allowed. The impugned order dated 30.9.2008 is modified and the parties are directed to maintain status quo as existing today with respect to …8… nature and possession of Villette Estate, Khalini and timber lying in Villette Estate with liberty to the parties to approach learned Single Judge for appropriate order for preservation/disposal of timber lying in Villette Estate and for carrying out any urgent/immediate repair which may be required to preserve the Villette Estate, Khalini, Shimla. 13. It is made clear that observations made in this judgment are for disposal of appeal arising out of interim order and shall have no bearing on the merits of the case ( R.B. Mista ) Judge (Kuldip Singh) Judge August 11, 2009 (sks) …9… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OSA No. 11 of 2008 Judgment reserved on: 3.8.2009 Date of Decision : 7.8.2009 _____________________________________________________ Madhavinder Singh ……..Appellant Vs. Manvinder Singh ……. Respondent ________________________________________________________________ Judgment for consideration, please ( Kuldip Singh). J. I agree/do not agree. ( R.B. Misra), J. List for pronouncement of judgment on__________. ( R.B. Misra), J. Court Secretary …10…