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2022 DIGILAW 1901 (RAJ)

Badan Singh Meena v. Keshar Devi

2022-06-29

SUDESH BANSAL

body2022
JUDGMENT 1. Petitioners-defendants (hereinafter referred as 'petitioners') have preferred this revision petition under Section 115 of CPC, assailing the order dated 21.05.2019 passed in Execution Petition No.01/2016 titled as Smt. Keshar Devi & Ors. Vs. Badan Singh & Ors. by the Court of Additional Civil Judge No.1, Gangapur City, District Karauli. 2. Heard counsel for both parties and perused the record. 3. It appears that both parties are neighbor and entered into a compromise dated 26.11.2015 to maintain a 6 feet wide gully between houses of both parties for use as a way to plaintiffs and petitioners as well as a common way to inhabitants of that area. In the compromise, both parties agreed that in this 6 feet wide gully, they can put the projection (chazza) up to 1.6 feet width on their doors, windows and ventilators, opening in the gully of their houses. On the basis of this compromise dated 26.11.2015, a compromise decree was passed in the Civil Suit No. 251/2013. There is no dispute between parties about the compromise decree dated 26.11.2015. 4. Non-petitioner-plaintiffs moved an application alleging inter alia that petitioners have raised projection with the help of affixing todas, in order to shed the doors, windows and ventilators of their houses and such projection is in violation to the compromise decree, hence prayed for removal of such projection. 5. Petitioners submitted reply and contended that their house is already constructed and the projection over the door, windows and ventilators can be affixed only with the support of todas and the projection put by petitioners, is within limits of 1.6 feets, as such, the same cannot be treated in violation of the compromise decree. In the reply, petitioners also contended that plaintiffs have raised some encroachment in the gully of 6 feet wide, which may be ordered to be removed. 6. Plaintiff-non-petitioners submitted rejoinder and denied the allegation of any encroachment in the gully. 7. The court below appointed the Court Commissioner to inspect the site and the Court Commissioner submitted its inspection report dated 08.10.2016. Both parties also produced site photographs on record. 8. 6. Plaintiff-non-petitioners submitted rejoinder and denied the allegation of any encroachment in the gully. 7. The court below appointed the Court Commissioner to inspect the site and the Court Commissioner submitted its inspection report dated 08.10.2016. Both parties also produced site photographs on record. 8. The executing Court, on appreciation of terms of compromise dated 26.11.2015 as well as the report of the Court Commissioner and site photographs, observed that the projection raised by petitioners with the help of todas, is not in accordance with the terms, as agreed between parties in the compromise dated 26.11.2015. Accordingly, the executing court vide impugned order dated 21.05.2019, directed petitioners to remove the projection, put with the help of todas and allowed to put the projection independently and separately over the gate, windows and ventilators of house of petitioners in the gully. The counter prayer of petitioners that plaintiffs have raised some obstruction in the gully, was not found proved and accordingly the counter prayer was declined. Petitioners have assailed this order dated 21.05.2019 by way of filing the instant petition. 9. After hearing of counsel for both parties and on perusal of the impugned order and record, this Court prima facie finds that in the compromise dated 26.11.2015, both parties have agreed to maintain 6 feet wide gully unobstructed for the purpose of having free and unhindered access by both parties as well as to use this gully as a common way by local inhabitants of that area. In the compromise, both parties have also agreed that parties may put projection up to the width of 1.6 feet over their gates, windows and ventilators in their respective houses having opening in the gully. On perusal of photographs and report of the Court Commissioner, it may not be observed that the projection raised by petitioners above the door, windows and ventilators in their house with the support of todas, is beyond the limit of 1.6 feet width towards the gully. Merely, petitioners have put projection in continuation, without breaking in between doors, windows and ventilators, same may not be treated violative to the terms of compromise. It appears that gate, windows and ventilators in the house of petitioners, are in continuation. In the compromise, there is no specification about the length of projection. The limitation is only not extending the projection beyond 1.6 feet in the gully. It appears that gate, windows and ventilators in the house of petitioners, are in continuation. In the compromise, there is no specification about the length of projection. The limitation is only not extending the projection beyond 1.6 feet in the gully. The projection put by petitioners on their house with the help of todas as appearing from the photographs and has been observed in the report of the Court Commissioner, is not beyond the limit of 1.6 feet width in the gully. 10. It is also clear and admitted position between parties that the projection has been raised on the first floor and second floor. The 6 feet wide gully is open for having free and unhindered access to way at the ground floor. Learned counsel for non- petitioners expressed an apprehension that petitioners may cover the projection either by raising fencing or in other manner so as to use that projection as Balcony. Learned counsel for petitioners, in counter, submits that the projection of petitioners shall be used only as projection to protect the gate, windows and ventilators and no further construction either in form of wire fencing or in any other way on such projection, would be raised and such projection would not be converted as Balcony. 11. As far as, objection of petitioners regarding encroachment, alleged to be made by plaintiff-non petitioners in 6 feet wide gully, is concerned, the same does not find corroboration with the material available on record, neither in photographs nor in the report of Court Commissioner, any such obstruction by non- petitioners, is visible. 12. This Court finds that the Executing Court has committed material illegality and jurisdiction error in treating the projection of petitioners put with the help of todas, in violation to the compromise dated 26.11.2015. The projection raised by petitioners to shed the gate, windows and ventilators of their houses is within limit of 1.6 feet width towards gully and nowhere obstructs the gully to be used for common way. The executing court, has misconstrued such projection of petitioners, violative to the terms of compromise. The projection, would be used as a shed (chazza) above the gate, windows and ventilators of petitioners' house. The executing court, has misconstrued such projection of petitioners, violative to the terms of compromise. The projection, would be used as a shed (chazza) above the gate, windows and ventilators of petitioners' house. Removal of this projection and to put fresh projection, separately on each gate, windows and ventilators would cause prejudice to petitioners and may lead injustice moreover when the projection is within agreed limit of 1.6 feet width towards gully and there is no more specification in the compromise. The Executing Court has exceeded its jurisdiction in issuing direction to remove the projection whereas the same is well within the permissible limit of 1.6 feet width towards the gully according to agreed terms and conditions between parties in the compromise dated 26.11.2015. 13. Consequently, the impugned order dated 21.05.2019 to the extent of issuing direction against petitioners to remove the projection, is set aside. The remaining part of the order shall remain intact. 14. Accordingly, this revision petition is partly allowed. 15. Any pending application(s), if any, also stand(s) disposed of. 16. Record of the court below be sent back. 17. There is no order as to costs.