IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 191 of 2010 Date of decision: 6.9.2010 Mulakh Raj Petitioner. Versus Bansi Lal and another Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ramesh Sharma vice Mr. N.K.Thakru, Advocate. For the respondents: Mr. K.D.Sood, Advocate. Deepak Gupta, J. (oral) 1. This petition is directed against the judgement dated 17th March, 2010 passed by the learned District Judge, Una in Civil Misc. Appeal No. 10 of 2010 whereby he allowed the appeal filed by the respondents (here-in-after referred to as the plaintiffs) and passed an order restraining the petitioner (here-in-after referred to as the defendant) from reconstructing his house in Khasra No.1155 as per site plan dated 9.9.2008. The defendant, however, was permitted to lay roof on his structure marked ABCD of site plan dated 19.6.2008. Aggrieved by this order, the present petition has been filed. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 2. The brief facts of the case are that the plaintiffs instituted a suit praying that a decree for permanent injunction be passed against the defendant. It was alleged that the plaintiff No.1 and defendant No.1 and several other persons are joint owners in possession of the suit land comprised in Khasra Nos. 1154 and 1155. The allegation of the plaintiffs was that the defendant had constructed a house and had covered more than his share in the joint undivided property. It was alleged that this property had been constructed on that area of the joint property which abutted the PWD road and therefore, was of commercial importance. It was further alleged that now the defendant wants to raise construction on some other portion of the joint property. Alongwith the suit an application for interim injunction was also filed. 3. The defendant contested the suit as well as the application for grant of interim injunction. It was alleged that the share of the plaintiffs is much less than the share of the defendant. It was further alleged that the defendant may be permitted to raise construction and shall not claim any equity in case during partition proceedings the constructed portion does not fall to his share. He shall demolish the same and shall not claim any equity. It was further alleged that the land described in Khasra No. 1155 had been coming under 3 the possession of the defendant for long and he only wanted to repair his old dilapidated house. 4. The trial Court appointed a Commissioner, who found that in fact the old dilapidated house had virtually totally fallen down. Only one wall of the Veranda and half wall of the room was in existence. It is, therefore, apparent that in fact there was no house in existence but the ruins of an old house were only in existence. The learned trial Court, however, taking into consideration the fact that the defendant was admittedly owner of the old house permitted him to repair the same and lay roof on the same. 5. An appeal was filed by the plaintiffs and it was contended that the learned trial Court had been misled by filing two maps. One map is dated 9.6.2008. In this map one kacha portion is shown as Abadi of Shri Mulakh Raj. Adjacent to that on the left hand side there are two pacca rooms are shown one with a lintel on it and one without a slab. The one without slab was marked in red as ABCD. This obviously did not have a lintel on it. As far as the other kacha portion is concerned, from the perusal of both the maps it is apparent that it is a totally separate structure and is not connected with the pucca structure in any manner. However, the defendant filed another map on 9.9.2008. This map is identical to the map earlier filed. In this 4 map the pacca portions were not separately delineated in red and green as in the map dated 9.6.2008 and letters ABCDEF were marked on the kacha building. The learned appellate Court held and in my opinion rightly so that once the petitioner had raised a pucca building on a portion of the joint property he could not now claim that he should also be permitted to virtually reconstruct the old building which had totally fallen down. This is not a case of repairing old building because as per the report of the local commissioner virtually no part of the old building is in existence except one wall of the Veranda and one half wall of the room. The petitioner having raised pucca slab on which he was permitted to lay a roof by the learned lower Appellate Court cannot also in addition thereto be allowed to reconstruct his old building which admittedly is in ruins. Therefore, I find no merit in the petition which is accordingly rejected. It is, however, made clear that the observations made here-in-above have been made only for the purpose of deciding the stay application and shall have no bearing on the merits of the case which shall be decided on the evidence led before the trial Court. No order as to costs. 6th September, 2010 (Deepak Gupta), J. ™