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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J
Lalbabu Sah S/o Late Lakhi Sah - Appellant
Versus
Pradip Bhattacharjee And 2 Ors S/o Late Ramesh Chandra Bhattacharjee - Respondent
CRP 118 of 2019
Decided On : 29-11-2021
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Section 47, 151 - Limitation Act, 1963 - Article 136 - Construction - Illegal and Liable for Demolition - Whether western portion of pucca boundary wall is situated over plot of land - Whether petitioner had raised any construction on his land in violation to decree of Court - Whether there was any violation to compromise decree by appointing a Commission as could be seen from order.
Finding of the Court:
Second objection which has been raised as regards identification of wall, same had already been settled and same had attained finality, wherein it has been categorically held that wall in question is western wall - Third objection which has been taken to effect that decree was not executable, inasmuch as it is an admitted fact that it has been duly complied with, does not hold water in view of fact that a perusal of Clause 4 of Compromise Decree categorically shows about compliance to be made by defendant in respect to future construction which is in nature of a perpetual injunction - Last objection which has been raised out here as regards that there is no suit land on fact of it, cannot be accepted pursuant to order of compromise decree whereby parties have amicably agreed to recognize particular boundary wall - In compromise decree, it being specifically spelt out that there shall not be any construction or anything put 3 ft from boundary wall which is on western side of suit land, said contention as raised by counsel for petitioner does not hold any water - Learned counsel appearing on behalf of petitioner upon instruction submits that demolition of existing structures by Civil Nazir may cause further damage to existing structures and as such, he gives an undertaking before this Court that within a period of 45 days from today he shall demolish structures and remove all temporary structures or anything within area of 3ft from western boundary wall of plaintiff.
Result: Petition dismissed.
JUDGMENT :
Heard Mr. S.P. Roy, the learned counsel appearing for the petitioner and Mr. B.C. Das, the learned senior counsel appearing on behalf of all the respondents.
2. The petitioner is before this Court under Article 227 of the Constitution of India challenging an order dated 23/7/2019 passed in Title Execution Case No. 8/2011 by the Munsiff No. 1, Tezpur thereby directing the Civil Nazir to demolish the portion of the building constructed by the petitioner, which is in violation to the compromise decree dated 30/9/2005.
3. The brief facts of the instant case is that the Respondent Nos. 1, 2 & 3 along with one Prabeen Ch. Bhattacharjee and Ratna Bhattacharjee filed a suit against the petitioner herein who was the defendant No. 1 in the suit along with two others seeking declaration that the pucca construction raised by the defendants without leaving space from the boundary wall of the plaintiffs is illegal and liable for demolition; and for permanent and perpetual injunction restraining and prohibiting the defendants from raising any construction without leaving prescribed space from the pucca boundary wall of the plaintiffs. The said suit was registered and numbered as Title Suit No. 82/2005. Pursuant to service of summons, the parties to the suit amicably arrived at a settlement and in pursuance thereof filed a joint application under Order XXIII Rule 3 of the Code of Civil Procedure for passing a decree in terms with the amicable settlement which was incorporated in the said compromise petition.
4. For the purpose of elucidating the dispute in controversy, it would be relevant to quote the terms as it appears in the translated copy of the petition enclosed as Annexure --2 to the instant petition and the same are quoted herein below:-
2. That no water from tin roof or R.C.C. roof top will be poured into the wall of the plaintiff.
3. Defendants meanwhile removal his constructed structure by keeping 3 ft. margine on received of notice of the case.
4. Defendant agreed to raise construction in near future by keeping 3 ft. margin from the boundary wall and dependents shall not have raise water tank or plastic tank or water storage material or shall not dig land within 3ft. of boundary wall. Be mentioned that the defendant shall remove his existing structure within 10 days from the date of Compromise failing which the plaintiff shall have the right to file execution case for clearing 3ft. land from the boundary wall.
5. That the defendant side agreed to obey compromise terms and conditions and shall not violate the terms and conditions. If defendants make any construction by violating this compromise in that event the plaintiff has the right to remove those construction as per Compromise Decree.
6. This compromise petition shall be part of the decree and prayed for decree the suit.
7. That the party shall bear the cause of the suit.”
5. After the filing of the said application praying for passing of a decree of compromise, the Trial Court vide an order dated 30/9/2005 allowed the said application thereby decreed the suit on compromise with a direction that the terms and conditions of the compromise petition shall be a part of the decree.
6. Subsequent thereto, the respondent being aggrieved by the actions of the petitioner for raising construction in violation of the compromise decree filed an application for execution of the said compromise decree in the year 2011, which was registered and numbered as Title Execution Case No. 8/2011. The petitioner filed an objection to the said application denying construction of any permanent structures near the boundary wall of the respondent. Further to that, the petitioner raised the issue that after a lapse of 5 years the respondents
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