IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 489 of 2010 (M/S) Ashok Belwal & another ….…Petitioners Versus Kailash Chandra Joshi (Advocate) & others … Respondent Shri Yogesh Pandey, learned counsel for the petitioners Shri Anil Kumar Joshi, Advocate with Shri Rakesh K. Joshi, learned counsel for the respondents. Dated: 19 May, 2010 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. Present writ petition has been filed by the petitioners for quashing the judgment and order dated 03.04.2010 passed by the District Judge, Nainital in Misc. Civil appeal no.39 of 2009, ‘Ashok Belwal Vs. Kailash Chandra Joshi and others’ and order dated 09.11.2009 passed by Civil Judge (Sr. Div.) Nainital in O.S. No.116 of 2009, ‘Ashok Belwal Vs. Kailash Chandra Joshi’. Brief facts, as narrated in the writ petition, are that the petitioners purchased House no.11/197 from Shri Surya Prakash Joshi through registered Sale deed dated 29.01.1996 and became owner of the same having title and transferable rights over it. It is further stated in the writ petition that initially Shri Padma Dutt Joshi, son of Shri Prem Ballabh Joshi was the owner of the House no.11/197 through registered sale deed dated 07.02.1953, which was executed by Shri Munnal Lal son of Sohan Lal. On 06.06.1963 Shri Padma Dutt Joshi executed sale deed in favour of Shri Surya Prakash Joshi in respect of half portion of the House no.11/197. It is also mentioned that Shri Padma Dutt Joshi also executed another sale deed dated 12.06.1963 in favour of Shri Ram Dutt Joshi (father of the respondents) in respect of another half portion of the house, which is House no.11/197/1. The plaintiffs are owner of the property purchased by them from Shri Surya Prakash Joshi, which is in southern portion and the defendants are owner of the property in northern portion. Both houses were constructed in the aforesaid property are part of one house and are being divided by one old wall having width of 14 to 21 inch. The said common wall is northern wall of the petitioners house and southern wall of the house belonging to the respondents. It is further submitted by the petitioners that the common wall of the houses of the petitioners and respondents is supporting wall of the wooden poles of first floor and roof of both the houses of petitioners and respondents and in case of any damage to the said wall, there is every chance of causing damage to the residential house of petitioners and the house of the petitioners can be demolished. It is also stated in the writ petition that there is one shop which was under the tenancy of the plaintiff/petitioner no.1 and the vacant possession of which was handed over to the respondents. The respondents without sanctioning a plan or without obtaining permission, which is mandatory under the R.B.O. Act, 1958 and amended Act, 1972 started digging a pit in the basement of the shop having a depth of 8 ft. As the common wall is going to damage due to digging of pit and construction of basement by the respondents, the petitioners instituted a suit seeking a decree of permanent injunction restraining respondents from causing damage to the common wall and further restraining them from illegal and forcible use of the courtyard and stairs of the plaintiff/petitioners for first floor. The suit was numbered as O.S. no.116 of 2009, ‘Ashok Belwal and another Vs. Shri Kailash Chandra Joshi (Advocate) and others’ in the Court of Civil Judge (Jr. Div.), Haldwani, District Nainital. The petitioners also filed an application for temporary injunction under Order 39 Rule 1 and 2 of C.P.C. for restraining the respondents, their relatives or agents from raising illegal construction nearby the common wall without adopting a lawful procedure. On 13.10.2009 learned Civil Judge (Sr. Div.) passed an order directing the parties to maintain status quo. On 20.10.2009 plaintiff moved an application with a prayer for issuing a commission for a survey of the spot by any technical specialist. The Trial Court instead of issuing a commission of technical specialist for inspection of the disputed wall issued an advocate commission who submitted its report on 03.11.2009. On 09.11.2009 Trial Court dismissed the application for temporary injunction. Aggrieved by the order dated 09.11.2009 the petitioners filed a Civil appeal no.39 of 2009, ‘Ashok Belwal and another Vs. Kailash Chandra Joshi and others’ in the Court of District Judge, Nainital. The District Judge, Nainital dismissed the appeal of the petitioners vide judgment and order dated 03.04.2010. Against the orders dated 03.04.2010 and 09.11.2009 present petition has been filed. On the request of parties this Court vide order dated 11.05.2010 appointed Advocate Commission in respect of the construction mentioned the plaint and the construction which is being done by the defendants/respondents. Advocate Commission submitted following report on 18.05.2010: “In compliance of Hon’ble Courts order dated 11.05.2010 I served notices to the parties counsel and inspected the spot in presence of the parties and their counsels. I made a rough sketch at the spot which is attached with this report. The disputed portion are the shops adjoining to the road. actually it is an old building and the petitioners have constructed the shop and running a cosmetic shop. The respondents have already constructed the structure of the shop. This shop of respondents is 9.10 Ft. wide towards road and has dug 3.8 Ft. deep to the level of the road. Petitioner has 7.6 wide shop and both parties have made their partition wall of bricks which is 4 inch in each side. No construction was going on the spot. That in the south of the petitioner’s shop there is path which is shown in the map by ‘A’ & ‘B’. It goes to the first floor of the old building. The old building is made off stones and bricks. The roof of the old building is made of tin. The entire old building from ground floor to second floor is partitioned by wood and old beams of wood are existing. In the first floor of the building adjacent to the lenter of the shop there is verandah, it is 3.10 Ft. wide. In the cealing of the first floor there are two beams across to the total width of the old building. The parties Requested to take photographs of the disputed portion of the building. Hence photographs taken and are appended with this report.” Learned counsel for the petitioners submitted that the building is very old and entire old building from ground floor to second floor is partitioned by wood. He submitted that petitioners apprehends that by further construction the entire building may come down. On the other hand, the learned counsel for the respondents submitted that the apprehension of the petitioners is without any basis and nothing will happen to the existing construction of the petitioners. After hearing learned counsel for the parties, this Court thinks it fit to observe that if the respondents are making construction over their own land, they cannot be stopped from making construction over their own land. But, it is made clear that while making construction the respondents will take full care and will see that no part of the building of the petitioners is damages in any manner. On merit, I do not find any illegality in the orders passed by the Courts below. The writ petition is disposed of. All pending applications stand disposed of accordingly. ( V.K. Bist , J.) 19.05.2010 Arpan