Civil Revision No. 5648 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5648 of 2009 Date of decision : April 30, 2010 Smt. Man Kaur ....Petitioner versus Smt. Tarawanti and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kunal Dawar, Advocate, for the petitioner Mr. Lokesh Sinhal, Advocate, for respondent no. 1 None for respondent no. 2 L.N. Mittal, J. (Oral) Defendant no. 1 has filed instant revision under Article 227 of the Constitution of India challenging order dated 3.8.2009 passed by learned Civil Judge (Junior Division) Faridabad thereby dismissing application Annexure P/2 moved by defendant no. 1 for permitting her to repair the broken roof of a shed. Respondent no. 1 filed suit vide plaint Annexure P/3 alleging that her father-in-law was owner in possession of a house. The suit portion shown in red colour in site plan Annexure P/7 is existing adjacent to the said house. After the death of plaintiff's father-in-law, plaintiff is owner in possession of the said house. The plaintiff claimed first right over the suit Civil Revision No. 5648 of 2009 -2- property lying adjacent to the house. The plaintiff alleged that plaintiff's husband constructed four shops in some portion and let out the suit portion to defendant no. 1. However, defendant no. 1 stopped paying rent after the death of plaintiff's husband. The plaintiff claimed permanent injunction restraining defendant from changing nature of the suit property and from raising construction and from creating third party interest or to put any third party in possession of the suit property. Defendant no. 1 however pleaded that defendant no. 1 and her husband occupied vacant suit land 40 years back and levelled it and raised some construction and they are residing there for more than 35 years. Defendant no. 1 moved application Annexure P/2 for permission to repair the broken roof of a room located in the suit property. The said application has been dismissed by the trial court. I have heard learned counsel for the parties and perused the case file. Admittedly walls of the room are in existence at the spot and defendant no. 1 wants to put only asbestos sheets on the said walls as stated by learned counsel for the petitioner. Perusal of site plan Annexure P/7 annexed by plaintiff herself with the plaint reveals that the said room is in existence at the spot and has been depicted as shed of asbestos sheets. Consequently, the contention that the walls have now been raised by defendant no. 1 cannot prima facie be accepted at this stage. On the other hand, there was already in existence the shed of asbestos sheets including the walls. If the asbestos sheets have given way, defendant no. 1 prima facie has right to put the same again as defendant no. 1 along with her sons defendants no. 2 and 3 is residing there. Plaintiff has not filed suit for Civil Revision No. 5648 of 2009 -3- possession or ejectment from the suit property. If the defendant no. 1 has to reside in the suit property, defendant no. 1 cannot be denied the right to cover the room with asbestos sheets which was already in existence there as per aforesaid site plan. In view of the aforesaid, the impugned order passed by learned trial court is patently erroneous and unsustainable in law. The revision petition is accordingly allowed and impugned order dated 3.8.2009, Annexure P/1 passed by learned trial court is set aside and application Annexure P/2 moved by defendant no. 1 is allowed to the extent that defendant no. 1 shall be entitled to put asbestos sheets in the north western shed depicted in site plan Annexure P/7. This is without prejudice to the merits of the suit and respective versions of the parties. ( L.N. Mittal ) April 30, 2010 Judge 'dalbir'