1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1161 OF 2008 IN SECOND APPEAL NO.623 OF 2003 Ashok Shridhar Rasal, age65 yrs, Occn. Service residing at: C.T.S.No.1833, Parvati Ulhas Sahakari Sanstha, Sahakarnagar No.II Pune - 411 009 .. Applicant -versus 1. Shridhar Ganesh Rasal & ors age:adult, Occn. Retired. r/o. 531-B, Shivajinagar,Pune (since deceased) A. Smt. Kamal Shridhar Rasal, age:82 years, Occn. Household B. Sou Snehal Ramesh Gosawi, age: 67 years, Occn. Household Pitru Chhaya, Senapati Bapat Marg Pune - 4ll 016. C. Ajit Shridhar Rasal, age: 51 years, occn. Service r/o Plot No.7, Pashupati Society, Modern colony, Kothrud, Pune - 411 029. D. Anil Shridhar Rasal, age:adult, occn.Business, r/o 31-B, Shivajinagar, Pune - 411 005 .. respondents. Mr. R.V. Govilkar, for the applicant 2 Mr. S.D.Shinde a/w R.S. Khadapkar, for the respondent Nos 1(a) to 1(d). CORAM: A.S. OKA, J. DATED:25 th September, 2009. P.C. 1. By order dated 24th July, 2008, this Court (Coram: J. H. Bhatia, J) observed that the prayer made in this Civil Application was in the nature of review of earlier order passed by this Court, in Civil Application No.924 of 2003 and therefore, the applicant should be heard by this Court. Thereafter the Registrar (Judicial-I), obtained necessary order from the Hon’ble Chief Justice and accordingly this Civil Application has been assigned to this Court. This Civil Application was heard from time to time. This Court felt that as the dispute is a family dispute, a workable solution should be arrived at. Therefore, application was heard from time to time and it was adjourned from time to time. An attempt was made by keeping the application in Chamber to enable the parties to resolve the dispute. However, all efforts have failed and therefore, I have taken up the application for hearing. 2. The applicant in this application is the appellant in the second appeal and the respondents herein are the 3 respondents in the second appeal. Original plaintiff was the father of the applicant. The suit was filed by the father against the applicant. The dispute relates to a plot which is more particularly described in the plaint. The original plaintiff-father claimed to be the exclusive owner of the suit property. His case was that the present applicant defendant forcibly entered a part of the property. The original plaintiff died during the pendency of the suit and the respondents and the present applicant are the legal representatives of the original plaintiff. 3. The Trial Court dismissed the suit and an appeal was preferred by the plaintiff father. The appeal was decided by holding that the parties to the appeal were the joint owners of the suit house. The applicant herein was directed to put the respondents in joint possession of the suit house on the suit plot alongwith him. Even when second appeal came up for admission,some efforts were made to amicably settle the dispute. However, notwithstanding the sincere efforts made by the counsel appearing for the parties, matter could not be settled. The second appeal was admitted on 29th August, 2007 and in an application for interim relief filed by the applicant a workable order was passed. The operative part of the said 4 order reads thus. “6. Hence, the Civil Application is disposed of by passing following order. i) The execution and operation of clause 2(2) of the operative part of the decree of the Appellate Court will remain stayed till final disposal of the Appeal. ii) By way of an arrangement pending the hearing of the second Appeal, iIt will be open for the applicant to construct first floor above the existing single storeyed structure. Thereafter, it will be open for the Respondents to construct second floor having the same area. iii) If the Applicant fails to start construction within a period of one year from today, it will be open for the Respondents to apply to this Court for modification of this order. iv)The aforesaid arrangement will be without prejudice to the rights and contentions of both the parties. v) Civil Application is disposed of accordingly. vi)Liberty to apply in case of difficulty”. 4. It must be stated here that none of the parties have challenged the said order passed by this Court dated 29th August, 2007. As on today there is a single storey structure on the suit plot . The effect of the interim order passed in the appeal is that the applicant will be entitled to construct first floor above the existing structure and after 5 the construction of the first floor is completed, the respondents will be entitled to construct second floor of the equivalent area. This arrangement was made considering the fact that second appeal will remain pending for several years and in the meanwhile the parties will be prevented from enjoying the property. 5. It must be stated here that respondent Nos l(C) and l(D), are the real brothers of the applicant. The respondent No.l(A) mother is no more and the respondent l(B) is the married sister. It must be stated here that the deceased father was claiming exclusive ownership over the suit property. The case of the applicant was that the father was not the exclusive owner of the suit property. Various contentions have been raised. It is alleged that the applicant has contributed substantial amount for construction of the existing structure. In fact a specific plea was that the existing structure has been constructed from the joint funds of original plaintiff-father and applicant herein. The contention in substance is that he is a joint owner of the property. Respondents have stepped in the shoes of original plaintiff. Even assuming that the case made out by the applicant is true, even then respondents have a share in the suit property and for that reason this 6 Court passed order which will enable the rival parties to enjoy the suit property till the second appeal remains pending. 6. The first prayer made in this application is for extension of time and second prayer is that a permission be granted to put to additional beams and columns etc to enable construction of two more storeys. Various allegations have been made in the application such as non co-operation on the part of respondents. There is a reply filed on l7th December, 2008 by Respondent No.l(D). There is an additional reply filed, which deals with what the parties were working out for amicable solution as stated earlier. The parties are not aggrieved by the original order passed by this Court on 29th August, 2007. It cannot be disputed that the said order will operate for the benefit of both the parties and therefore, the question is in what manner the relief can be moulded so that the order can be implemented. 7. It is contended by the applicant that to enable the parties to construct two additional storeys a support will have to be created by constructing columns and beams on the ground floor. If erection of columns and beams is necessary on the ground floor to support the structure, the 7 parties cannot have objection to that. However, while doing so, applicant cannot be allowed to extend the constructed area of the existing ground floor structure by constructing additional walls or by extending walls taking benefit of the additional columns and beams constructed. Time to complete construction of the first floor will have to be extended. 8. It is pertinent to note that in the original order, it is mentioned that the applicant will have to commence construction within a period of one year from the date of said order and will have to complete the same within a period of two years from the said order dated 29th August, 2007. The first step is of preparing a plan. The applicant shall get the building plan prepared through an Architect and will have to obtain building permission and commencement certificate. Considering the manner in which the parties are implementing the order, time of six months will have to be granted to apply for and obtain commencement certificate. While preparing the plan, applicant will have to ensure that the utilization of the floor space index is made in such a manner that respondents will be in a position to construct the second floor of an area equivalent to the area of the first floor. It is obvious that the 8 respondents will have to co-operate with the applicant by signing the plans and other documents which are required for obtaining permission and commencement certificate. It will be the responsibility of the applicant to get a comprehensive plan prepared which will provide for construction of even a second floor so that while obtaining permission for construction of first floor, the corporation will also grant permission for construction of second floor. In such an eventuality, respondents will have to contribute in equal share to the expenditure such as Architect’s fees and charges payable to the Corporation and other expenses required or incurred for sanction of the plan and for grant of commencement certificate. It is obvious that as this order is being passed even for the benefit of the respondents, they are expected to co-operate with the applicant in this behalf. 9. On the commencement certificate being granted, applicant will carry out and complete the construction of first floor within the period of one year from the date on which commencement certificate is granted. 10. Thereafter it will be open for the respondents to construct the second floor. It is obvious that the area of the second floor which may be constructed by the respondents 9 will be exactly equal to the area of the first floor. An apprehension was expressed by the counsel for the applicant that after construction of the first floor, if the respondents do not proceed with the construction of second floor, then there will be a leakage in first floor. In that eventuality it will be open for the applicant to get water proofing done of the Ceiling of the first floor. 11. Hence Civil Application is disposed of by passing following order. Order i) Time of six months from today is granted to the applicant to submit the plan for construction of the first & second floors and to obtain commencement certificate. ii) As stated earlier it will be open for the applicant to construct the additional columns and beams on the ground floor for getting requisite support for construction of first floor and second floor. However the area of existing ground floor structure shall not be extended by constructing additional walls. iii) The respondents will render necessary co- operation to the applicant by signing plans and all other documents for obtaining permission and commencement certificate. The expenses required to be incurred viz 10 architect’s fees, corporation fees/charges and other charges and expenses for obtaining commencement certificate will have to be equally shared by the respondents. It is obvious that in such a case, respondents will have to share all other expenses which are required to be incurred, such as survey fee, charges payable to the Society etc. for the purpose of obtaining commencement certificate. iv)The construction of the first floor shall be completed by the applicant within a period of one year from the date on which commencement certificate is granted by the Municipal Corporation. v) In case of any difficulty in implementing the order, it will be always open for the parties to apply to this Court. vi)In the aforesaid terms, the order dated 29th August,2007, passed in Civil Application No. 924 of 2003 stands modified. vii)All concerned including the Ulhas Co- operative Housing Society at Sahakar Nagar, Parvati, Pune, to act upon an authenticated copy of this order. viii)The application is disposed of in above terms. (A.S. OKA, J)