IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CS 25 of 2003, OMPs 18 of 2005 & 168 of 2003. Date of decision May 5, 2009. Anup Chand Puri & others ….Plaintiffs. Versus Smt. Rama Puri & others ….Defendants. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the plaintiffs Mr. Rahul Mahajan, Advocate. For the defendants Mr. Tarun Vaid, Advocate. Dev Darshan Sud, J. (Oral). By its judgment and decree dated 1.9.2004, a preliminary decree was passed holding that the plaintiffs have 19/20 shares jointly in the property comprised in Khewat No. 83, Khatauni No. 180, Khasra Nos. 779, 780, 781, 783, 784, 785, 786, 787, 788, kitas 9, measuring 523.26 square meters and also land comprised in khasra No. 782, Kita 1, measuring 166.88 square meters, as per 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Jamabandi for the year 1997-98, situate in Up Mohal Kaithu Dwitiya (Second), Tehsil and District Shimla and defendants have 1/20 share jointly in it. Shri Vivek Karol, Engineer was appointed as Commissioner by order of this Court dated 8.9.2004 to draw up the mode of partition of the property by metes and bonds. The report of the Commissioner has been filed on 16.11.2004 as recorded by this Court in its order of the same date. OMP 18 of 2005 and OMP 167 of 2003 are pending for decision. OMP 18 of 2005 has been preferred by the plaintiffs objecting to the report as filed by the Commissioner. I have heard the learned counsel for the parties and gone through the record. The local commissioner visited the property in dispute on 11.10.2004 and 3.11.2004 after notice to the parties and was accompanied by their Advocates, S/Sh. Rahul Mahajan for the plaintiffs and Anuj Gupta for the defendants. The report is replete in detail and records: - 3 - “…..The respective shares of the parties has been determined by the Hon’ble Court while passing the preliminary decree according to which the plaintiffs jointly owns 19/20 share and defendants jointly own 1/20 share. The main building is a three storeyed building and the outhouses are a single storeyed structure. As agreed to between the parties mutually, defendants are allotted two rooms with kitchen on the first floor as shown in sky blue colour and the plaintiffs are allotted the entire remaining portion of the three storeyed building and single storeyed building of outhouses as shown in yellow colour in the enclosed plans, which are marked and annexed with my report as annexures LC-1 and LC-2. At the time when I visited the spot, some of the rooms were lying locked; as such exact measurements could not be taken. Such rooms are marked as A, B, C, D, E, F and G in the enclosed plan. As regards electricity and water connection to the portion allotted to the defendants, it is not having - 4 - separate meters. The defendants will have to apply for fresh connection of electricity and water as soon the matter is solved in the Court. Till they apply for fresh electricity and water connections, they can use electricity and water from the present connections of the remaining portion. As regards the sewerage connection is connected it cannot be partitioned. There is single line for the whole premises and it will remain common. As regards the passage to the portion to be given to the defendants there are two alternatives which are marked as alternative No. 1 (as shown in red colour) & alternative No. 2 (as shown in brown colour) in the enclosed plans. For alternative No. 1, C.G.I. sheet roofing over the passage at the level of M.C. road will have to be removed and a small portion of brick masonry measuring 1.10m x 0.20 m x 1.30m will have to be dismantled. Then steel staircase can be built in this portion and the entrance to the portion of the defendants will be through the door marked as “D1” - 5 - in the enclosed plan. The passage will not affect the privacy of the other portion. The portion which is hatched in the drawing will remain common to both the parties in this case. The only drawback in this alternative is that this passage will be only 3 feet wide. Alternative No. 2 will be through the passage as shown in brown colour and the entrance will be through the door marked “D1”. This passage will remain common to both the parties. There is no other alternative to provide access to the portion given to the defendants.” Learned counsel for the plaintiffs has confined his arguments to the option provided by the local commissioner being termed as second option and states that in case passage is given according to Annexure LC-2 with the report, it will destroy privacy of the allotment made to the plaintiffs. Learned counsel for the defendants submits that the Commissioner has recorded that in case the first alternative LC-1 is provided, the - 6 - width of the passage will only be 3 feet and would require dismantling of masonry work, removing C.G.I. sheets and providing iron stair case. He submits that the second alternative is the only possible alternative and as such, the objections are required to be rejected. Obviously, if the decree for partition is to have any meaning, then passage should be provided in a way so that it does not interfere with the privacy of the other party. Alternative LC-1 does require some construction and dismantling work as also connecting the property with the municipal road by means of steel / iron stair case. Counsel for the parties have been unable to assist this Court on the point as to whether if such steel/iron stair case is constructed, permission from the Municipal Corporation / any other authority would be required or not. This alternative as suggested by the local commissioner is better alternative than LC-2 as it would keep both the parties apart. It would also ensure that each party has his own independent ingress and egress from the property. - 7 - OMP 18 of 2005 is accordingly allowed with the following directions: (i) Passage will be provided in accordance with the first option, that is LC-1 as annexed with the report of the Local Commissioner; (ii) For this purpose, if any permission is required from the Municipal Corporation, or any other authority both the parties shall jointly approach the Corporation or such authority and ensure that such permission is obtained before undertaking any construction/ dismantling work. The parties shall work jointly to complete all statutory requirements and if so required to sign / execute documents as required by law/ Regulations/ Rules. (iii) The steel / iron stair case to be constructed should be technically sound and strong and for this purpose, the parties shall bear the - 8 - cost in the ratio 75:25. The plaintiffs shall bear 75% of the cost and the defendant 25% of the cost. The construction shall be carried out under the supervision of an experienced engineer; (iv) Should there be any statutory bar to the construction of the steel/ iron stair case, the passage as contemplated by LC-2 shall be provided to the property. The application is accordingly disposed of. The report of the Local Commissioner is accepted in view of the observations made above. Civil Suit 25 of 2003. The report of the Local Commissioner has been perused and the objections have been considered separately. Let a finally decree be drawn up in terms of the report of the local commissioner and passage be provided in terms of the alternative LC-1. Should there be any statutory bar to the construction of the steel/ iron stair case, the - 9 - passage as contemplated by LC-2 shall be provided to the property. The defendants shall also hand over vacant and peaceful possession of the property allotted to the plaintiffs by the report. It is further directed that for the construction of the passage in terms of LC- 1, both the plaintiffs and the defendants shall provide mutual assistance to each other in order to have such construction made. The parties shall bear the cost in the ratio 75:25. The plaintiffs shall bear 75% of the cost and the defendant 25% of the cost. The suit stands disposed of accordingly. All pending applications shall stand disposed of and interim order(s) vacated. May 5, 2009 (PC) (Dev Darshan Sud), J.