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2016 DIGILAW 1863 (RAJ)

Ishwar Sharma v. Hari Prakash

2016-12-20

VEERENDR SINGH SIRADHANA

body2016
JUDGMENT : Veerender Singh Siradhana, J. 1. By order dated 20th August, 2015, the trial court adjudicated upon the application of the plaintiff-appellant according permission to the defendant-non-appellant No. 1 for construction of a room on the roof of the property in dispute subject to the condition that the defendant-non-appellant No. 1, shall have no objection as to partition of the constructed room and would not stake any claim for expenses incurred on the construction; of which the plaintiff-appellant is aggrieved of. 2. Briefly, the essential skeletal material facts necessary for appreciation of the controversy are that the plaintiff-appellant instituted suit proceedings for partition of the property against defendant-non-appellants No. 1 to 6. The Additional District Judge, Kota, while adjudicating upon the application for grant of temporary injunction permitted the defendant-non-appellant No. 1 construction of one room on the property in dispute with the condition that he would not claim any expenses on account of construction of the room for which permission has been accorded. 3. Learned counsel for the plaintiff-appellant, reiterating the pleaded facts and grounds of the memo of appeal, vehemently asserted that the interim order made by the trial Court is self contradictory for by the impugned order defendant-non-appellants No. 2 to 6, have been restrained to interfere with the exclusive possession of the plaintiff-appellant as to stair case and the roof top while permitted to defendant-non-appellant No. 1, for construction of the room on the property in dispute subject to the condition as aforesaid. 4. According to the learned counsel, the permission was accorded by the trial Court in the backdrop of the attendant facts at the relevant time wherein the marriage of the son of defendant-non-appellant No. 1, was to be solemnized. For the marriage ceremony is already over, and therefore, the permission accorded by the trial Court is not required. Moreover, the construction has been stopped in view of the interim order of status quo dated 9th September, 2015. Since construction was continued despite the interim order of status quo, contempt proceedings have been instituted, whereupon notices were issued to the defendant-non-appellant in S.B. Civil Contempt Petition No. 104/2016. 5. Per contra: Mr. Alok Chaturvedi, learned counsel appearing for defendant-non-appellant No. 1, while supporting the impugned order made by the Trial Court permitting construction with the condition stipulated therein, asserted that indisputably the suit proceedings have been instituted for partition of ancestral property. 6. 5. Per contra: Mr. Alok Chaturvedi, learned counsel appearing for defendant-non-appellant No. 1, while supporting the impugned order made by the Trial Court permitting construction with the condition stipulated therein, asserted that indisputably the suit proceedings have been instituted for partition of ancestral property. 6. Learned counsel would further submit that in view of the necessity of residential area and keeping in view the marriage of son of defendant-non-appellant No. 1, the trial Court rightly exercised the discretion to permit construction of the room subject to the condition stipulated therein. 7. According to the learned counsel, in view of the singular facts of the case at hand, the permission accorded to defendant-non-appellant No. 1 with the conditions stipulated therein, cannot be said to be illegal or one which suffers from material illegality or error so as to call for any interference by this Court in the appellate jurisdiction. Reliance is placed on the opinion of Co-ordinate Bench of this Court in the case of Kanaram Meena v. Gurucharan Singh Chahal & Anr., 2013(3) DNJ (Raj.) 1144, Ashok Kumar Rajvanshay v. Murli Agarwal, 2014(1) DNJ (Raj.) 60 and Kamal Kishore v. Shiva Raje & Ors.: in S.B. Civil Misc. Appeal No. 4865/2015, decided on 20th October, 2016. 8. I have heard the learned counsel for the parties and their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar so also carefully scanned the impugned order 20th August, 2015. 9. Indisputably, the suit proceedings have been instituted for partition of the ancestral property. It is also not in dispute that the parties to the suit proceedings have been in possession of their respective areas as detailed out in the pleadings. It is also reflected from the materials available on record that the ancestral property includes some shops and construction raised on the property in dispute. 10. The trial Court, on a consideration of the pleadings of the parties and materials available on record, has made the order restraining defendant-non-appellants No. 2 to 6 from interference with the ancestral property in possession of the plaintiff-appellant, specifically with reference to the stair case and the residential rooms constructed on the roof. 10. The trial Court, on a consideration of the pleadings of the parties and materials available on record, has made the order restraining defendant-non-appellants No. 2 to 6 from interference with the ancestral property in possession of the plaintiff-appellant, specifically with reference to the stair case and the residential rooms constructed on the roof. Defendant-non-appellant No. 1 has been permitted construction of a room with the condition that in the event of partition he would not raise any objection including the room which he has been permitted to construct and would also not claim any expenses incurred on account of construction permitted. 11. In the case of Kamal Kishore (Supra), this Court in the backdrop of the opinion of the Supreme Court in the case of Mandali Ranganna & Ors. v. T. Ramchandra & Ors., (2008) 11 SCC 1 , held that once rightly or wrongly constructions have come up, they cannot be directed to demolish the same and it would not be proper to stop further constructions. However, interests of the parties, can be protected while allowing the constructions to proceed, but the constructions shall be made subject to ultimate decision of the suit. 12. The trial Court, while according permission to the defendant-non-appellant No. 1, specifically made a stipulation to that effect. Hence, the discretion exercised by the trial Court while making the impugned order dated 20th August, 2015, cannot be faulted on account of any illegality much less gross illegality so as to call for any interference by this Court. In the result, the civil Misc. appeal fails and is hereby dismissed. 13. Stay application also stands closed. 14. Interim order dated 9th September, 2015, stands vacated. The trial Court would make an effort to conclude the proceedings as expeditiously as possible, taking note of the steps suggested by the Apex Court of the land in the case of.