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2012 DIGILAW 827 (HP)

Vidya Bhatia v. Anita Singh

2012-11-15

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. This is the defendants appeal against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court dismissing the suit of the plaintiffs for damages, permanent prohibitory and mandatory injunction calling upon the defendants to remove the unauthorized construction. 2. The plaintiffs pleaded that they were owners in possession of the land and house property situated in Khasra Nos.588, 583, 584, 585 and 586, Comely Bank, Up Mohal, Chaura Madain, Shimla. Smt.Surjeet Kaur (mother of the first plaintiff) had purchased the suit property from Smt. Parkash Kaur widow of Sardar Avtar Singh by a registered sale deed dated 09.08.1979 Ex.PW- 2/A. She in turn purchased this property from Late Lt. Col J.K. Anand by registered sale deed dated 30.09.1974 Ex.W-3/A. The plaintiffs had purchased the basement of Anand Bhawan, Comely Bank, situated in Khasra Nos.583, 584 and 585. The first defendant was the owner of one flat on the ground floor and one on the first floor. Second flat on ground level was in the ownership of Smt. Lokeshwari Wangu and second flat on the first floor was owned by Shri Ashutosh Sood. The accommodation with the plaintiffs had RCC roof (terrace). It was pleaded that Shri Ashutosh Sood was using a wooden stairs case erected on the RCC roof of the premises of the plaintiffs. He without their consent erected an iron stairs case increasing the weight on the roof of the house of the plaintiffs which had threatened its safety. 3. The case set out was that the plaintiffs were permanent residents of Delhi and were visiting Shimla occasionally. On 10.9.2003, plaintiff No.1 visited the suit property and was surprised when she found unauthorized construction by defendant No.1 Smt. Vidya Devi who had used iron poles, angles and channels for construction of room. Space to the extent of 14 square meters was covered by her and this additional weight put on the roof had caused cracks in the lintel with the result that the water was seeping in the house of the plaintiffs. 4. PW-3 B.C. Sharma, who was Engineer and Architect, had prepared site plan Ex.PW-3/B depicting and showing the construction which was marked as red on the plan. Defendant No.1 also wanted to encroach upon the other land situated in Khasra Nos.588 and 586. 4. PW-3 B.C. Sharma, who was Engineer and Architect, had prepared site plan Ex.PW-3/B depicting and showing the construction which was marked as red on the plan. Defendant No.1 also wanted to encroach upon the other land situated in Khasra Nos.588 and 586. It was pleaded that the Municipal Corporation, defendant No.2, had not been approached by defendant No.1 for obtaining sanction of plan etc. The damage, according to the plaintiffs, was of Rs.72,492/-. A decree for damages, permanent prohibitory and mandatory injunction was prayed for. 5. Defendant No.1 opposed the grant of relief on maintainability of the suit, estoppel, non-joinder of necessary parties, limitation and valuation. On merits, defendant No.1 had admitted the ownership of Late Lt.Col.Anand. It was pleaded that defendant No.1 was the legal heir of Late Lt.Col. Anand and was the owner in possession of this property. Smt.Parkash Kaur had purchased a portion of `Anand Bhawan’ owned and possessed by Late Lt.Col Anand by sale deed dated 30.09.1974 Ex.DW-1/A and on 09.08.1979 had sold the property purchased by her to Smt.Surjeet Kaur and plaintiff No.2 by sale deed Ex.PW-2/A. Neither Smt. Parkash Kaur nor Smt.Surjeet Kaur and the second plaintiff had been sold the RCC slab on the basement and it was reserved for common use of the proprietors and occupants of the entire `Anand Bhawan’. Other averments were denied in toto. It was pleaded that the plaintiffs had unauthorisedly, illegally and without any authority encroached upon the vacant area belonging to the first defendant. They were in litigation with Shri Ashutosh Sood who is a necessary party. They had no right for raising such construction on the roof of the basement. Defendant No.1 had denied having caused damage to the roof of the basement. In fact, the plaintiffs had not been residing in the suit premises as the same remained locked throughout the year except for a short period and damage assessed was without any factual foundation. 6. On the pleadings of the parties, 14 issues were settled. The learned trial Court found against the plaintiffs and dismissed the suit. 7. In appeal, the learned appellate Court reassessed the entire evidence holding that the sale deed Ex.PW-2/A was executed by Smt.Parkash Kaur in favour of second defendant and her mother Smt.Surjeet Kaur on 09.08.1979 and after the death of her mother, she had stepped into the shoes of the owner. 7. In appeal, the learned appellate Court reassessed the entire evidence holding that the sale deed Ex.PW-2/A was executed by Smt.Parkash Kaur in favour of second defendant and her mother Smt.Surjeet Kaur on 09.08.1979 and after the death of her mother, she had stepped into the shoes of the owner. There was no dispute about the fact that Late Lt.Col. Anand was the owner of the suit property `Anand Bhawan’ and that on 30.09.1974 he had sold the suit property to Smt.Parkash Kaur. The plaintiffs’ accommodation was on the basement. Adverting to the evidence, the learned appellate Court noticed that PW-1 Sukh Mohinder Singh husband of the first plaintiff and father of plaintiff No.2, General Power of Attorney of the plaintiffs, had stated that in the absence of the plaintiffs, the first defendant had constructed a structure on their roof (terrace). It was supported by iron poles and channels and one Ashutosh Sood had converted his wooden stairs into iron stairs case increasing the weight of the roof. This act of the defendant No.1 had threatened the safety of the building of the plaintiffs. The learned Court found that this observation was supported by PW-3 Shri B.C. Sharma, who was a retired Civil Engineer in private practice. He inspected the spot on 13.11.2003. In his evidence he stated about the factum of construction of one structure on the roof of the basement of the plaintiffs with the result that the roof had developed cracks and water had started seeping in. Extensive damage had been caused to the premises of the plaintiffs. PW-1 Sukh Mohinder Singh had also reported against Shri Ashutosh Sood. 8. PW-2 Pawan Sharma, who was clerk in the Registration Office, produced and proved sale deed Ex.PW-2/A dated 09.08.1979. PW-4 Yashwant Singh, who was an official with the Municipal Corporation (defendant No.2), stated that the plaintiffs had instituted a complaint Ex.PW-1/E for unauthorized construction against the first defendant and defendant No.2 had issued a notice under Section 253 of the H.P. Municipal Corporation Act. The case was decided against this defendant after he had been heard by the Commissioner and an order of demolition of the unauthorized construction was passed. 9. Defendant No.2 examined DW-1 Shri Mohan Thakur, Junior Engineer, who stated that the plaintiffs had complained against defendant No.1 and he had inspected the spot on 12.09.2003. The case was decided against this defendant after he had been heard by the Commissioner and an order of demolition of the unauthorized construction was passed. 9. Defendant No.2 examined DW-1 Shri Mohan Thakur, Junior Engineer, who stated that the plaintiffs had complained against defendant No.1 and he had inspected the spot on 12.09.2003. The Commissioner, Municipal Corporation, Shimla, had passed an order dated 19.09.2005, Ex.DX, for demolition of the unauthorized construction. DW-3 Lekh Ram, who was Registration Clerk at the relevant time, had proved on record Ex.PW-3/A, sale deed dated 30.09.1974 executed by Late Lt.Col. Anand in favour of Smt.Parkash Kaur. DW-4 Joshinder Lal was examined for proving the demarcation of the suit land. Mark `Y’, copy of the order dated 20.07.2004, passed by the Assistant Collector Ist Grade, whereby the demarcation carried out by the Field Kanungo has been upheld. DW-5 Hem Chand, who was an employee of Municipal Corporation, stated that power and water connections of the suit premises have been disconnected. Only rental charges were being realized from the plaintiffs. 10. DW-6 Smt.Vidya Devi, defendant No.1, stated that the plaintiffs had no right, title or interest on the roof of the basement since they were the owners of the basement only. No encroachment has been made by her, but it was the plaintiffs, who erected a gate on the defendant’s land. She admitted having constructed one structure on the roof of the basement supported by iron poles and channels. According to her, the plaintiffs were also litigating with Shri Ashutosh Sood. 11. It was urged before the learned appellate Court that the learned trial Court had rightly concluded on the basis of sale deed that the roof/terrace of the basement had not been sold to the plaintiffs or their predecessor-in-interest vide Ex.PW- 3/A. Late Lt.Col.Anand had reserved to himself the right to dismantle, repair and reconstruct the rest of his building and these findings, which according to the defendant-appellant, are correctly arrived at by the learned trial Court. It was submitted before the learned appellate Court that the first defendant had constructed a structure on Khasra No.582 which belonged to her. The evidence of PW-3 Shri B.C. Sharma requires to be rejected because he had not associated any revenue expert for sitting the basement and roof etc. It was submitted before the learned appellate Court that the first defendant had constructed a structure on Khasra No.582 which belonged to her. The evidence of PW-3 Shri B.C. Sharma requires to be rejected because he had not associated any revenue expert for sitting the basement and roof etc. The learned appellate Court rejected his arguments by holding that the plaintiffs and their predecessor-in- interest had purchased the basement as also the area abutting the basement. The first defendant had no right, title or interest to the basement and PW-1 Sukh Mohinder Singh and PW-3 Shri B.C. Sharma were clear and unequivocal in stating that the first defendant had constructed one room on the roof of the basement of the plaintiffs. The weight of the room had caused damage to the roof/terrace of the basement. Iron poles had been stuck in the roof. These iron poles supported the channels and GI sheets. The Court holds that the testimony of Shri B.C. Sharma PW-3, being an expert in the field, could not be doubted and in the cross- examination, defendant No.1 has not been able to destroy the veracity of his evidence. The first defendant stated that she had applied for permission for construction which was granted to her by defendant No.2, Municipal Corporation vide Ex.DW-1/A and in this eventuality the construction cannot be ordered to be pulled down. This submission was rejected. The learned appellate Court holds that this permission had been granted for construction of temporary shed for stacking construction material, but defying this sanction, the first defendant had constructed a permanent structure on the roof/terrace of the basement. On the complaint instituted by the plaintiffs, the Commissioner, Municipal Corporation had visited the spot on 02.05.2005 for spot inspection and found that defendant No.1 had raised unauthorized construction. Accordingly, by order Ex.DX passed by the Commissioner, the first defendant had been directed to remove this construction. 12. Adverting to the other facts that Shri Ashutosh Sood had converted wooden stairs into an iron stair case and thereby put additional weight on the roof of the basement, the plaintiffs had instituted a Civil Suit No.66-1 of 2000 against him and defendant No.1. 12. Adverting to the other facts that Shri Ashutosh Sood had converted wooden stairs into an iron stair case and thereby put additional weight on the roof of the basement, the plaintiffs had instituted a Civil Suit No.66-1 of 2000 against him and defendant No.1. It was submitted that the Civil Suit filed by the plaintiffs against Shri Ashutosh Sood and the first defendant was dismissed by the judgment and decree dated 29.9.2007 (Mark `D’) and in this eventuality the liability is to be attributed to Shri Ashutosh Sood. Learned appellate Court holds that the plaintiffs had appealed against the judgment and decree and the learned Additional District Judge vide his judgment and decree dated 4.9.2010 passed orders for removal of iron stairs erected by Shri Ashutosh Sood on the roof of the basement of the plaintiffs. This fact was admitted by learned counsel for defendant No.1 as having become final. The decree having attained finality and no appeal has been instituted before this Court. In this eventuality, the Court holds that the learned trial Court has not properly assessed the evidence and wrongly dismissed the suit of the plaintiffs. 13. Learned counsel for the defendant reiterated the submissions made before the learned trial Court. On the aspect of the factual situation as to whether unauthorized and illegal construction having been made by the first defendant, I find that these findings are supported by the order of the Commissioner, Municipal Corporation Ex.DX as also by the evidence on record of PW-1 and PW-3. I do not find that the learned appellate Court has been wrong or remiss in assessing this evidence. These are findings of facts. I find that the learned trial Court has not properly appreciated the evidence or gone into detail of what the witnesses stated. There are all probabilities that the defendant, taking advantage of the absence of the plaintiffs from the suit premises, had resorted to this construction. 14. In these circumstances, I do not find any question of law much less substantial question of law required for determination of this Court. There are all probabilities that the defendant, taking advantage of the absence of the plaintiffs from the suit premises, had resorted to this construction. 14. In these circumstances, I do not find any question of law much less substantial question of law required for determination of this Court. On the point raised that the roof rights have not been sold to the defendant, I find it strange that even though such rights may not have been sold but still it does not give any right to a third party to use the roof in a manner to cause damage to the residence of the plaintiffs. There is, thus, no merit in this appeal which is dismissed. No order as to costs.