1 1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 162 of 2001. Date of decision: 14.09.2011. H.P. Housing & Urban Development .…Appellant. Authority. Versus R.P.S.Kotwal. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. J.R.Thakur, Advocate. For the Respondent : Ms. Kanta Thakur, Advocate . Kuldip Singh , Judge (Oral). This appeal has been directed against the judgment, decree dated 01.07.2000 passed by learned Additional District Judge(I), Kangra at Dharamshala in Civil Appeal No.3-P/999, affirming judgment, decree dated 24.04.1998 passed by learned Sub Judge Ist Class (I), Palampur, in Civil Suit No. 426/93/92 dismissing the suit of the appellant. 2. The facts, in brief, are that the appellant had filed a suit for possession and mandatory injunction against the respondent. The pleaded case of the appellant is that the appellant had transferred the possession of MIG House No. 46, Housing Board Colony, Palampur on 10.11.1982 and an agreement was executed between the appellant and 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 the respondent. As per conveyance deed, the respondent would not extend the construction of the house on the vacant portion beyond the approved plan. The allotment is liable to be cancelled in case of non- compliance of the terms and defiance of approved plan. The respondent while raising construction did not comply the terms and conditions of the plan approved by the appellant and he raised unauthorized construction to the extent of 684.25 square feet which is liable to be demolished by way of mandatory injunction. The respondent has constructed unauthorized projection of his 'Chhajja' upon plot No. 37 and encroached an area measuring 58.24 square feet. The appellant is entitled for possession of the same after demolishing the 'Chhajja'. The suit was filed for possession of 58.24 square feet area after demolishing 'Chhajja' and mandatory injunction for unauthorized construction raised over plot No.46 to the extent of 684.25 square feet. 3. The suit was contested by the respondent. He took preliminary objections of maintainability, estoppel, authority of the person to file the suit, lack of cause of action. On merits, the execution of the conveyance deed between appellant and respondent regarding plot No. 46 has been admitted. However, respondent denied that he raised unauthorized construction beyond the approved plan. He has stated that in view of 'Nala' near to the plot of respondent, he has constructed a retaining wall, which was never objected by the appellant. The prayer was made for dismissal of the suit. 4. The replication was filed by the appellant and stand taken in the plaint reiterated. On the pleadings of the parties, the following 3 issues were framed:- 1. Whether the plaintiff board is entitled to possession of land measuring 58.24 Sq. feet as reflected in the map, as alleged?OPP. 2. Whether the plaintiff board is entitled to the relief of mandatory injunction as per site plan, as alleged? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the act and conduct of the plaintiff is bar to the present suit?OPD. 5. Whether the Executing Engineer, H.P. Housing Board has no authority to file the suit, if so to what effect? OPD. 6. Relief. The issues No. 1 and 2 were answered in negative, issues 3 to 5 were not pressed and the suit was dismissed on 24.04.1998. In appeal, the learned Additional District Judge on 01.07.2000 while dismissing the appeal affirmed the judgment, decree dated 24.04.1998. Hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the Courts below have mis-read and mis- interpreted the conveyance deed Ex. P-2 to come to the conclusion that the appellant Housing Board could only ask for the cancellation of the allotment and could not ask for decree of possession by way of demolition? 2. Whether the Court below are right in holding that after the transfer of the plot by the original allottee in favour of the respondent, the Housing Board loses its right to ask for possession by way of demolition? 5. I have heard learned counsel for the parties and have also 4 gone through the record. It has been submitted by the learned counsel for the appellant that the Courts below have misconstrued and misinterpreted conveyance deed Ex. P-2 while recording a finding that the appellant could only ask for cancellation of the allotment and not for decree of possession by way of demolition. The Courts below have also erred in holding that after transfer of plot by the original allottee, the Housing Board has no right to ask for possession by way of demolition. The learned counsel for the respondent has submitted that the findings recorded by the two Courts below emerge from the evidence on record and no fault can be found with the impugned judgment and decree. 6. The substantial question of law No.1 is taken up first for determination. The appellant had filed a suit for possession of land measuring 58.24 square feet by way of demolition of 'Chhajja' of house constructed on plot No. MIG-37 and for mandatory injunction by demolition of unauthorized construction made by way of construction of garage etc. as shown in yellow colour in the site plan in plot No. 46 to the extent of 684.25 square feet. A copy of conveyance deed Ex. P-2 dated 10.11.1982 has been placed on record vide which MIG House No. 46 was allotted to respondent under Hire-Purchase scheme of the appellant. It has been provided in Ex. P-2 that the vendee shall have to construct the house on the plot after getting the plan approved from the Board. The plan of the building to be constructed on the plot shall be approved by the Board strictly as per the zoning plan of the Colony. 7. There is no stipulation in the conveyance deed Ex. P-2 that 5 in case the construction is raised without the approval of the Board by the allottee on plot No. 46 then the Board shall have right to demolish that part of the construction which has been raised without approval of the Board. The suit has been filed on the basis of conveyance deed Ex. P-2 and not on the basis of some statute, rule or regulations or other right to claim demolition of the construction allegedly raised by the respondent. This being the position the appellant has no right to seek demolition of the alleged construction on the basis of conveyance deed Ex. P-2. At the cost of repetition, it is reiterated that suit has not been filed by appellant on the basis of any other legal right of the appellant for demolition of construction. In these circumstances, it cannot be said that the two Courts below have mis-construed and misinterpreted conveyance deed Ex. P-2 while refusing relief of demolition of alleged unauthorized construction. The two Courts below have taken a possible view from the evidence on record. In second appeal, re-appreciation of evidence is not permissible. The substantial question of law No. 1 is decided against the appellant. 8. Now coming to the substantial question of law No.2, the case of the appellant is that respondent has encroached plot No. 37 by constructing 'Chhajja' over plot No. 37. It has not been denied by learned counsel for the parties that in substantial question of law No. 2 due to typing mistake in third line 'respondent' has been typed instead of 'Mr. Sood or new transferee'. The submission made by learned counsel for the parties to this effect appears to be correct. It has come on record that plot No. 37 was earlier owned by one Mr. Sood and now it has 6 been transferred in favour of some other person. The construction of 'Chhajja' was not objected either by Mr. Sood or the person to whom the plot has now been transferred. 9. In conveyance deed Ex. P-2, there is no stipulation that Board shall have right to get the alleged encroachments removed from the plots of the allottees even where the allottees have no objection for such alleged encroachments. The appellant has failed to establish its legal right for the relief of removal of 'Chhajja' allegedly constructed by respondent over plot No. 37 which is admittedly at the relevant time was owned by Mr. Sood and thereafter by some third person, who never raised any objection regarding the alleged encroachment made by respondent at the time of construction of 'Chhajja'. The two Courts below have properly appreciated the material on record in refusing the relief to the appellant regarding the construction of 'Chhajja'. The substantial question of law No.2 is also decided against the appellant. 10. In view of above discussion, there is no merit in the appeal which is accordingly dismissed with no order as to costs. ( Kuldip Singh ), September 14, 2011. Judge. (krt)