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2015 DIGILAW 1217 (HP)

Vijay Kumar Sood v. Krishna Devi Sud

2015-09-02

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, H.P. dated 24.12.2003, passed in Civil Appeal No.47-S/13 of 2001. 2. “Key facts” necessary for the adjudication of this regular second appeal are that appellant-plaintiff (hereinafter referred to as the plaintiff) has instituted suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). According to the averments contained in the plaint, the defendants had carried out extensive repairs in the second floor of the building in contravention of the sanctioned municipal plans and without obtaining any permission from the Municipal Authorities. The defendants have also left girders to the extent of 5 feet towards the southern lower bazaar side of the suit premises, with a view to take their support and construct overhanging verandah in the second floor. The defendants had no right to construct overhanging verandah, which will hamper the light and air to the first and ground floors of the building, which was in possession of the plaintiff. 3. The suit was contested by the defendants. According to the defendants, they have not carried out any extensive repair work. They were not extending any verandah over the common Galli. The verandah had already been constructed by them in the year 1979, after obtaining permission from Municipal Corporation, Shimla. They only wanted to replace the old wooden planks. They have also filed the complaint against the plaintiff for raising unauthorized construction. 4. The issues were framed by the learned trial Court on 19.10.1993 and 17.11.2000. The suit was decreed by the learned Sub Judge, Ist Class, Court No. 1, Shimla on 28.2.2001. The defendants, feeling aggrieved, preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla, allowed the appeal on 24.12.2003. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 28.4.2004: “1. Whether in view of the admissions of the defendants to the extent that the Ext. DW-3/A was not sanctioned in their name and no completion plan had been submitted by them since 1979, it could be held that defendants were not liable to be restrained from constructing the balcony?” 6. Mr. J.S.Bhogal, Sr. Whether in view of the admissions of the defendants to the extent that the Ext. DW-3/A was not sanctioned in their name and no completion plan had been submitted by them since 1979, it could be held that defendants were not liable to be restrained from constructing the balcony?” 6. Mr. J.S.Bhogal, Sr. Advocate, appearing for the appellant, on the basis of substantial question of law framed, has vehemently argued that the defendants have carried out the unauthorized construction without seeking necessary sanction from the M.C. Shimla. On the other hand, Mr. Rajeev Sood, Advocate, for the respondents has supported the judgment and decree dated 24.12.2003. 7. I have heard learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. The plaintiff has appeared as PW-1. He has exhibited sale deed Ext. PW-1/A and sanction plan Ext. PA. According to him, if the verandah is constructed by the defendants, it will obstruct the light and air. The defendants have laid four girders for laying verandah. In his cross-examination, he admitted that the defendants have obtained the sanction for repair but denied that there was any verandah in the set of the defendants. In his rebuttal evidence, PW-1 Vijay Kumar could not depose as to whether defendants had obtained permission from the Municipal Corporation on 14.3.1990. 9. DW-1 Naveen Sood deposed that the suit premises were purchased by his mother in the year 1974. They were doing repair work in the year 1990 and verandah already existed. They were replacing the wooden planks with girders. According to him, they have got the house plan passed in the year 1979. They have raised the verandah in the year 1979. They have again tried to repair it in the year 1990. 10. Sh. Deewan Chand, JE, M.C. Shimla, DW-2 has exhibited the sanction plan Ext. DW-2/A dated 11.9.1979. According to him, the work was started within one year after the issuance of sanction letter. He did not know whether any work was undertaken in the year 1979. 11. The case of the plaintiff, precisely, was that his air and light was adversely affected if the verandah was raised. The plaintiff has not examined any independent expert to prove whether the proposed construction of verandah would actually affect the air and light of the plaintiff or not. 11. The case of the plaintiff, precisely, was that his air and light was adversely affected if the verandah was raised. The plaintiff has not examined any independent expert to prove whether the proposed construction of verandah would actually affect the air and light of the plaintiff or not. There is no evidence except the bald statement of the plaintiff while appearing as PW-1. DW-1 Naveen Sood has categorically denied that the proposed construction of verandah would interfere with the right of light and air of the plaintiff. The plaintiff has admitted that he himself has constructed the verandah on the first floor of the building. It was also extending approximately 3 feet towards the Municipal Galli. However, the matter was compounded. The plaintiff has also admitted that on the top floor of the building also, one verandah was constructed. It is, thus, evident that the plaintiff had constructed verandah on the first floor and another verandah was in existence on the top floor. It is, thus not understandable as to how the construction of a verandah by defendants on the second floor was going to affect the right of the plaintiff in respect of air and light. 12. The defendants have filed complaint against the plaintiff for raising unauthorized construction by extending verandah by 3 feet towards the M.C. Galli. The plaintiff, besides raising verandah has also constructed bathroom and kitchen in the ground floor of the building. Since the plaintiff himself has raised the unauthorized construction, he was not entitled to discretionary relief of prohibitory injunction for restraining the defendants on the ground of alleged violation of Municipal Corporation Bye-laws. The M.C. Shimla, was also a necessary party in the present case. The learned first appellate Court has correctly appreciate the oral as well as documentary evidence placed on record, more particularly, Ext. DW-2/A. The substantial question of law is answered accordingly. 13. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.