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2006 DIGILAW 4163 (PNJ)

Jai Pal v. Bharta

2006-10-24

S.N.AGGARWAL

body2006
JUDGMENT S.N. Aggarwal, J. - The version of Jai Pal petitioner was that he was a co- sharer in the suit land with Bharta, respondent. He has no right to raise construction on the valuable and specific portion of the joint land adjoining the road of village Berka. It will seriously hamper the right of Jai Pal petitioner. Therefore, he filed a suit for permanent injunction. 2. Bharta respondent filed written statement and contested the suit. His version was that the parties along with some other persons were jointly owners of the land measuring 462 kanals which was mutually partitioned about 25 years back and each of them was in possession of specific area. They were using the land in their possession in husband like manner and they were free to alienate the same, raise construction or to lease out the same in favour of brick kiln owners. It was also pleaded that even Jai Pal petitioner and his brother have constructed three big shops in killa No. 13/1 of Rectangle No. 7 out of which two shops have been rented out. They have also given Killa Nos. 18, 19, 22 and 23 of Rectangle No. 7 and Killa Nos. 2 and 3 from Rectangle No. 9 in favour of brick kill owners. The answering defendant i.e. Bharta has also installed a tubewell in Killa No. 8/2 of Rectangle No. 20 and tin shed in Killa No. 7/2 of Rectangle No. 20. The respondent intends to raise a boundary wall from the side of two roads to save his crops from stray cattle. Hence, dismissal of the suit was prayed. 3. The petitioner had also filed an application for interim stay under Order 39 Rules 1 and 2 CPC. The same was dismissed by the learned trial Court vide order dated 2.5.2006. 4. The petitioner filed an appeal. The appeal was also dismissed by the Court of Additional District Judge, Gurgaon vide order dated 25.7.2006. 5. Hence, the present petition. 6. The submission of learned counsel for the petitioner was that even Heta (grand-father of the petitioner) was co-owner with his own brothers and the partition had taken place on 23.10.2003 between the descendants of Heta and bis co-sharers and, therefore, the version of the respondent that family partition had taken place about 25 years back between the parties is unfounded. 7. This submission has been considered. 7. This submission has been considered. It has no merits at all. It may be that the partition between the descendants of Heta and other co-sharers was formalized by Assistant Collector Ist Grade, Sohna vide order dated 23.10.2003 but there is no presumption that the family partition had not taken place earlier particularly when it has been specifically pleaded by the respondent that the petitioner had constructed three shops in a specific area and that the petitioner has leased out the land to the brick kiln owner which amount to change of nature of the land. It is, therefore, prima facie proved that each co-sharer was in possession of a specific area. It could be possible only because of family partition or a private partition or a settlement. It happens very frequently that the parties divide the land amongst themselves, use the land according to the conditions so arrived at and to cultivate the same accordingly but it does not mean that till the order of partition is passed by the authorities concerned, the family partition is not possible. It is, therefore, held that prima facie family partition had taken place between the parties even prior to the passing of the order dated 23.10.2003 by the Assistant Collector Ist Grade, Sohna and the parties were in possession of their specific areas. 8. It may also be mentioned that since the petitioner was using the land which was in his possession in husband like manner, he has no right to stop the co-sharer from using the land to his best benefit. If the petitioner had raised construction of three shops or if he had leased out the land in favour of a brick kiln owner, he has no right to stop the co-sharer from raising construction on the land which was in his possession. 9. It was submitted by the learned counsel for the petitioner that in the written statement, the respondent had taken the plea that he was only raising a boundary wall while in fact he was constructing a house. It may be so. It may also be that after taking the plea in the written-statement the respondent thought of constructing a house. It was submitted by the learned counsel for the petitioner that in the written statement, the respondent had taken the plea that he was only raising a boundary wall while in fact he was constructing a house. It may be so. It may also be that after taking the plea in the written-statement the respondent thought of constructing a house. Although it is not appreciable that the respondent has taken a different stand in the written statement and had raised the construction in a different manner and of a different nature but that itself cannot be used to stop the respondent from raising construction in his own land. Equity also lies in favour of the respondent particularly when the petitioner had used the land in his possession in the manner he liked. Therefore, merely because the respondent has pleaded in the written statement that he was raising boundary wall and, in fact, he has constructed a house, he cannot be stopped in the interest of justice and in the interest of equity from using the land to the best of his benefit. 10. The next submission of learned counsel for the petitioner was that the respondent is raising construction in such a way that it violated the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (in short Act of 1963). Because of these violations made by the respondent, a notice has been served on the petitioner by the District Town Planner (Enforcement) Gurgaon under Section 12(2) of the Act of 1963. As a result, the petitioner faces the legal wrath for the construction being raised by the respondent. 11. The submission of learned counsel for the respondent was that the petitioner has already filed a civil suit challenging the said notice. Moreover, he will face the consequences if he violates any provision of any law by raising construction and he will avail the remedy available to him. Hence, it was prayed that the respondent cannot be restrained from raising construction because of alleged violation of statutory provisions. 12. These submissions have been considered. The said notice dated 23.6.2006 served by the District Town Planner (Enforcement), Gurgaon on the petitioner has been filed as Annexure P-9. According to this notice, the construction being raised by the respondent is in contravention of Sections 3, 6 and 7(1) of the Act of 1963. 12. These submissions have been considered. The said notice dated 23.6.2006 served by the District Town Planner (Enforcement), Gurgaon on the petitioner has been filed as Annexure P-9. According to this notice, the construction being raised by the respondent is in contravention of Sections 3, 6 and 7(1) of the Act of 1963. The respondent cannot be permitted to raise construction which has been found by the competent authority to be in violation of the statutory provisions. Therefore, it also does not mean that the respondent should be permitted to violate the provisions of law and then to institute legal proceedings to avoid the legal consequences. Therefore, the respondent has no right to raise construction which is violative of the statutory provisions. However, if he seeks no objection certificate from the concerned authorities to the effect that the construction being raised by the respondent is not violative of statutory provisions, then he would be at liberty to raise construction, the way he finds to be of his best use or in his best interest. 13. In view of the discussion held above, the petitioner has no right to stop the respondent from raising any construction. However, the respondent cannot raise any construction which is violative of the statutory provisions. After seeking necessary permission from the competent authorities, he would be at liberty to raise construction. 14. This Civil Revision is disposed of in the terms stated above. Anything said into this order shall have no effect on the merits of the case. Petition dismissed.