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2017 DIGILAW 1305 (RAJ)

Sajjan Singh v. Mahipal Singh

2017-05-22

VINIT KUMAR MATHUR

body2017
JUDGMENT Vinit Kumar, J. - Since both the appeals are arsing out of the order passed on 04.03.2017 by learned Additional District Judge, Balotra, District Barmer, the same are being disposed of by this common order. 2. In S.B. Civil Misc. Appeal No.958/2017, Mr. Rameshwar Hedau, learned counsel for the appellants submits that the portion in which the respondent Sajjan Singh is residing, is in a very dilapidated condition and it will be very difficult to stay and live in the property in question if the same is not allowed to be repaired. There is also a chance of seepage of water in the rooms in the rainy season. Besides it is also dangerous for life of the appellants, if the urgent repair works are not allowed to be undertaken. Considering the bad condition of the house, the appellants in this appeal submits that the order passed on 04.03.2017 on the application under order 39 Rule 1 & 2 C.P.C. requires modification. He further prays that a permission may be granted to get the necessary repair work done for the improvement and betterment of the house in which appellant Sajjan Singh is residing. 3. Dr. Sachin Acharya, learned counsel for Mahipal Singh has also assailed the order dated 04.03.2017, passed by learned Additional District, Judge, Balotra by way of filing S.B. Civil Misc. Appeal No.853/2017 and has contended that giving permission to repair the house in question will lead to a very complicated situation as under the garb of work undertaken, new constructions are being raised. The property is being used in such a fashion that the value of the property is being diminished. Therefore, Dr. Acharya, learned counsel for Mahipal Singh vehemently submits that no permission should be granted for taking any recourse to the construction activity by Mr. Sajjan Singh. It is also contended by Dr. Acharya that in the Commissioner''s Report, it has very categorically come that the entire construction is new construction and there is no repair or alteration work going on in the subject piece of land which is in habited by Shri Sajjan Singh. 4. This Court on 19.04.2017, in S.B. Civil Misc. Sajjan Singh. It is also contended by Dr. Acharya that in the Commissioner''s Report, it has very categorically come that the entire construction is new construction and there is no repair or alteration work going on in the subject piece of land which is in habited by Shri Sajjan Singh. 4. This Court on 19.04.2017, in S.B. Civil Misc. Appeal No.958/2017 after hearing, learned counsel for both the parties, passed the following order:- "Counsel for the appellant submits that except to complete the finishing work and electric fitting, no construction work is being undertaken and he undertakes that the appellants shall not undertake any new construction changing the nature of the said property in dispute. Looking to the controversy involved in the matter, it is ordered that except electricity fitting work, no new construction work shall be carried out in the property in dispute till next date. List the matter on 21.04.2017." 5. At that same time in the S.B. Civil Misc. Appeal No.853/2017 on 25.03.2017, this Court passed the following order: "Issue notice. Issue notice of stay application also, returnable within two weeks. Notice be given dasti. Meanwhile, status qua as it exists today with regard to the property in question shall be maintained by the parties. The stay order shall come into operation upon service of notice upon the respondents." 6. Thereafter, the matter was listed before this court on few occasions and after having deliberated, learned counsel for the appellants was directed to file an affidavit with respect to the specific works which he wants to undertake in the building. 7. In pursuance to the same an affidavit has been filed by Mr. Sajjan Singh, the appellant in S.B. Civil Misc. Appeal No.958/2017 and in paragraph No.2A, 2B and 2C of the affidavit has specifically stated the works to be undertaken on the portion of house inhabited by him. 8. Dr. Sachin Acharya, learned counsel for Mr. Mahipal Singh, submits that as far as improvement in the building is concerned, for preserving the building from the bad condition and getting it worst if the improvements are done, he has no objection but has submitted that in the affidavit itself in Clause 2C, Shri Sajjan Singh wants to raise new construction and, therefore, the conduct of the appellant Shri Sajjan Singh warrants that no permission for the same should be granted. 9. 9. I have heard learned counsel for both the parties at length. 10. Paragraph 2 A and 2 B of the affidavit are worthwhile to be reproduced here, which are as under: 11. The interest of justice will be met, if in the light of the paragraph 2 A and 2 B of the affidavit, the permission to Shri Sajjan Singh is granted on a specific undertaking being furnished before the learned trial court that except the above mentioned works, no new construction shall be raised by him in the building under occupation and he shall not construct or do anything which may have adverse effect on the value of the property concerned. 12. Accordingly, the order dated 04.03.2017 is modified and the appellant Sajjan Singh is permitted to undertake the renovation/improvement and repair works in the house with the condition that he shall not claim any equity with respect to the repair/renovation done in the house by him at the time of final decision in the suit pending before learned trial Court. Both the misc. appeals are disposed of with the above modifications in the order dated 04.03.2017, passed by learned Additional District Judge, Balotra, District Barmer.