IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 137 of 2007 Date of Decision: 19.5.2008 Sunka Ram …Petitioner Versus. Krishan Singh .. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Petitioner(s): Mr. Y.P.Sood, Advocate. For the Respondent(s): Mr. Imran Khan, Advocate vice Mr. S.D.Gill, Advocate. Deepak Gupta, J. (Oral). This petition under Article 227 of the Constitution of India is directed against the order of the learned Additional District Judge, Ghumarwin, passed in CMA No. 4/14 of 2006, decided on 15.5.2007, whereby he has rejected the appeal filed by the petitioner (hereinafter referred to as the defendant) and confirmed the stay order passed by the learned trial Court on 30.5.2006. Briefly stated the facts of the case are that both the parties are real brothers. They inherited various lands from their father late Shri Ganga Ram. The bone of contention in - 2 - the present suit is the land situate in khasra Nos. 144/69, 143/69 khata khatoni No. 5/5 situated in village Halwari, Pargana Sariun, Tehsil Ghumarwin, measuring 13 bighas 8 biswas. Respondent ( hereinafter referred to as the plaintiff) filed a suit claiming that the said land is joint and that the defendant has taken possession of a specific portion of the valuable land adjoining to the land of the plaintiff and has started raising construction thereupon. He prayed that the defendant be restrained from raising the construction till partition of the land. The defendant set up a case that a family settlement had been arrived at between the parties which was reflected in the Will of their father late Ganga Ram and by means of this Will out of the land in question measuring 13-8 bihgas, their father had given 3 biswas of land to Baldev and Lekh Raj sons of the predeceased brother Brij Lal, 3-11 bighas was given to the plaintiff and the remaining 9-14 bighas fell to the share of the defendant. The defendant further stated that there was an old house on this land which had collapsed and thereafter the defendant had started reconstruction of the same and the same was being built exactly on the area on which the old house existed. The learned trial court came to the conclusion that the - 3 - defendant had failed to prove on record that any specific land had been given to him or that there was a partition of land and, therefore, granted a stay order. The Will in question was not specifically dealt with by the learned trial Court. As far as the appellate court is concerned, I am constrained to state that though in the grounds of appeal a specific plea had been raised that a family arrangement/settlement had been arrived at between the parties which family arrangement was given effect to through the registered Will of their father dated 26.7.1991, the learned lower appellate court held that no such will has been placed on record. This shows an absolutely casual and cavalier approach of the lower appellate court. If the lower appellate court had cared to go through the file of the trial court it would have found that an attested copy of the Will had been placed on record by the defendant along with photographs of the old house and photographs of the empty space after demolition of the old house. It would be pertinent to mention that the defendant before the learned trial Court had also filed an application for appointment of a Local Commissioner so that it could be found out whether the defendant had raised construction - 4 - within the boundary of the old house or not. This application is still pending. After going through the record, I find that late Shri Ganga Ram father of the parties in his will has mentioned that as far as the houses Halwari are concerned they will be given to the legal heirs who are in possession thereof. Thereafter out of the khasra in question 9-14 bihgas was given to the defendant and 3-11 bihgas to the plaintiff. Photographs placed on record show that an old house was standing on the spot. Plaintiff did not file any written statement disputing the Will or the other documents filed along with the written statement. The old house has been demolished and by means of the impugned orders, the defendant has been restrained from any construction. Normally this Court would not interfere in an order passed under Order 39 rules 1 & 2 CPC in exercise of its extra- ordinary jurisdiction under Article 227 of the Constitution. However, in the present case, I have been compelled to go into the factual aspect of the matter since the learned lower appellate court has not taken into consideration the documents which were on record and has erroneously and wrongly came to the conclusion that the Will was not placed on record. No doubt the land in the revenue record is still - 5 - shown as joint land. However, after the perusal of the documents especially the Will, it is apparent that father had given 9-14 bighas of land along with house to the defendant. This will has not been challenged in any proceedings. The defendant as is apparent from the photographs is only reconstructing the old house. The defendant has also filed an affidavit that he would construct the new house on the area on which the old house existed. Therefore, the balance of convenience is not in favour of the plaintiff but in favour of the defendant who after demolition of the old house would not virtually have a house to live in if he is restrained from reconstructing the same. Keeping in view the aforesaid facts and circumstances of the case, I set aside the order of both the courts below. The petitioner/defendant is permitted to raise the construction. However, the construction shall be limited to the area which was covered under the old house and the defendant shall ensure that he does not raise any construction on any portion of the land which was not under the old house. This direction has been given without going into merits of the case and in case the suit is finally decided against the defendant, he shall not raise any plea of equity - 6 - in his favour and shall demolish the house if the land over which it is constructed falls to the share of the plaintiff. The petition is disposed of in the aforesaid terms. No costs. May 19, 2008. ( Deepak Gupta ), J. s.