IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No: 54 of 2007 Date of Decision: 14.3.2008 ________________________________________________________________ Smt. Kalan Devi and others … Petitioners Versus Nikka Ram … Respondents ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioners : Mr. Ramakant Sharma, Advocate For the Respondent : Mr. Suneet Goel, Advocate ________________________________________________________________ Deepak Gupta, J.(Oral) This petition is directed against the order of the learned Presiding Officer, Fast Track Court, Hamirpur in Civil Miscellaneous Appeal No. 20 of 2006, whereby he has dismissed the appeal of the petitioners and confirmed the order of stay passed by the learned Civil Judge (Junior Division), Nadaun in CMA No. 65 of 2006 in Civil Suit No. 24 of 2006, decided on 19.5.2006. According to the plaintiff the land comprised in Khata No. (old) 284 min, (New) 272, Khatauni No. (Old) 397, (New) 390, Khasra Nos. 2718, 2819, kita 2 measuring 1- 34-20 hectares situated in village Lahra, Mauza Galore, Tehsil Nadaun, District Hamirpur, H.P. (hereinafter referred 2 to as the suit land) is jointly owned by the plaintiff, (respondent herein) the petitioners (hereinafter referred to as the defendants) and other co-sharers. It is further averred that this suit land has not been partitioned and, therefore, the defendants have no right to raise any construction on any specific portion thereof. The plaintiff alleges that the defendants have started digging and raising construction and filed a suit for permanent prohibitory injunction restraining the defendants from raising any construction thereon. Alongwith the suit an application under Order 39 Rules 1 & 2 C.P.C. was filed praying for interim relief that pending disposal of the appeal the defendants be restrained from raising any construction. This suit was contested. According to the defendants, they are raising construction only on a portion of the land where an old house belonging to the defendants exist. It is further alleged that the parties are and were in separate possession of particular portions of the old house and land, though in the revenue record it is shown as joint. It has also been urged that the plaintiff himself has already raised construction on his portion and after having raised construction on his portion is now trying to prevent the defendants from raising construction on the portion falling to their share. The learned trial court passed an order of status quo which effectively meant that the defendants could not raise any construction on the land. The 3 defendants filed an appeal which appeal was dismissed by the learned lower appellate Court who confirmed the interim order. Hence the present petition. In have gone through the record of the case and the material placed on record. Some material has also been placed on record in the shape of photographs and site plan has also been placed on record of this petition. The site plan is Annexure P-6. The plaintiff- respondent does not deny the authenticity or correctness of the site plan. The photographs have also been filed. A perusal of the photographs clearly shows that previously an old building was existing on the site. This building appears to have been divided by the parties. Even though partition may not have taken place, they were admittedly in possession of certain specific portions of the old building. The plaintiff-respondent has admittedly demolished the old house falling to his share and raised an R.C.C. construction in its place. Next comes the portion belonging to the defendants. Thereafter is the house of Hari Chand. The photographs also clearly show that Hari Chand has also constructed a new brick wall on the side of the building. In between there is a vacant plot of land where the house of the defendants used to exist. By means of the order of status quo they have been restrained from raising any construction thereupon. Resultantly, two of the co-sharers, i.e. plaintiff Hari Chand have their own houses. Out of this the plaintiff’s construction is absolutely new 4 whereas the house of Hari Chand though old has a new wall. On the other hand, the defendants are without any house since they have demolished their house and by the order of the court they have been restrained from raising any construction. In my opinion, this has caused a grave injustice to the defendants. They are without a roof on their heads. The plaintiff, who despite being a co-sharer has raised new construction on his portion of the old house, cannot be permitted to urge that the defendants should not be permitted to raise construction on the portion of the old house which has been demolished. This would cause irreparable harm and injury to the defendants. Equity is not in favour of the plaintiff. Mr. Suneet Goel, learned counsel for the plaintiff-respondent has strenuously urged that in case the petitioners are permitted to raise construction, they are likely to encroach upon the verandah and open space and obstruct the path of the plaintiff-respondent to the main road. Mr. Ramakant Sharma, learned counsel for the petitioners has stated that the petitioners-defendants shall raise the construction strictly in line with the construction raised by the plaintiff-respondent and also in line with the house of Hari Chand and that the construction shall not extend to any open space. Annexure P-6, the map, has been admitted in principal to be correct. This petition is disposed of with the directions that the defendants shall be entitled to raise 5 construction within the portion of land falling between points B,C,G & F, of the said map. The alignment of the front between points B and C shall be strictly in line with points A & D and shall not project out of the line. Similarly, in the rear portion, the portion F to G shall be in line with portion E to H. The petitioners shall not be entitled to raise any construction over the verandah or open space so that all the parties have right of ingress and egress to the path. The orders of both the courts below are modified accordingly and the petition is disposed of in the aforesaid terms. A copy of the map, Annexure P-6, shall form a part of this order. March 14, 2008(k) ( Deepak Gupta ), J.