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2006 DIGILAW 1977 (PNJ)

Satish Kumar v. Baldev Raj

2006-05-08

HEMANT GUPTA

body2006
Judgment 1. The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit filed by the plaintiffs has been decreed and the defendant-appellants have been restrained from raising unauthorised and illegal construction in violation of the sanctioned site plan and bye-laws and causing further damage to the house of the plaintiffs. The defendants were also directed to remove unauthorised and illegal construction existing on plot No.2/31, Shivaji nagar, Gurgaon. The plaintiffs were granted a decree for recovery of rs.2,50,000.00 along with interest @ 12% p. a. in respect of the damages suffered by the plaintiffs on account of damage caused to the building of the plaintiffs on account of the construction sought to be raised by the defendants on their adjoining plot. 2. Both the Courts have recorded a concurrent finding of fact that the defendant-appellants have raised unauthorised construction in violation of the sanctioned building plan and bye-laws. It has been also found that on account of such process of raising construction, the building of the plaintiffs has suffered damage and such damage has been quantified at Rs.2,50,000.00 as claimed in the suit. 3. Learned counsel for the appellants has vehemently argued that the plaintiffs have not claimed a decree for directing the defendantappellants to demolish the unauthorised/illegal construction and rather the plaintiffs have prayed that the Municipal Committee should get the illegal construction stopped and demolished. 4. Factually, the argument raised by the learned counsel for the appellants is not correct. In fact, the plaintiffs have claimed a decree for mandatory injunction to the following effect:- "it is, therefore, humbly prayed that your honour may very kindly be pleased to pass a decree for the recovery of Rs.2,50,000/- alongwith interest pendente lite at the rate of 12% per annum from the date of filing of the suit till realisation with consequential relief of permanent injunction restraining defendants No.1 and 2 from raising construction immediately adjacent to wall cd of the plaintiffs; from raising construction in violation of the sanctioned site plan and bye-laws; from raising construction of shopping-cum-commercial complex and from causing any further damage to the house of the plaintiffs and marked by letters ABCD in the annexed site plan and fully described in para No.1 of the plaint. A decree for mandatory injunction may also kindly be issued in favour of the plaintiffs and against defendants No.1 and 2 directing them to place back earth near the wall CD of the plaintiffs upto a distance of 6 feet and to restore the said portion in its original shape as it existed before the illegal digging was started by defendants No.1 and 2 as well as against defendant No.3 directing it to get the illegal construction of defendants no.1 and 2 stopped and demolished in accordance with law with costs of the suit. Any other relief which this HON BLE Court deems appropriate and suitable be also granted to the plaintiffs. " 5. A reading of the said prayer leaves no manner of doubt that the plaintiffs have claimed a decree to restore the wall CD of the plaintiffs upto a distance of 6 feet and to restore the said portion in its original shape as it existed before the illegal digging was started by the defendants and direct the defendants to get the illegal construction stopped and demolished in accordance with law. In addition thereto, the appellants have given an undertaking Exhibit PX before the learned trial Court to remove construction at their own cost if the construction is found not in accordance with the maps sanctioned by the Municipal Committee. 6. Learned counsel for the appellants has contended that the construction has been raised by the appellants in terms of the order dated 19/2/1997. However, the said order is an interim order permitting the defendants to raise construction as per the sanctioned site plan. Since the construction has been found to be not in accordance with law, the finding recorded by the Courts below that such unauthorised construction is liable to be removed, is based upon proper appreciation of evidence. It could not be pointed out that any evidence has been either misread or not taken into consideration. 7. Consequently, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may raise any substantial question of law in the present appeal. Hence, the present appeal is dismissed. The amount deposited by the appellants in terms of the order dated 25/9/2004, be remitted to the learned Executing Court, for disbursement, in accordance with law.