Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Shri Shyam Sunder, S/o. Shri Jagannath - Petitioner
Versus
Shri Vikram Kanwar, S/o. Late Shri Lakshman Singh & Ors. - Respondents
Civil Misc. Petition Main (Original) No. 499 of 2017
Decided On : 07-01-2022
Suit property - Land - Suit for decree - Permanent prohibitory injunction - Case of plaintiff is that he is owner in possession share of land and defendants are also co-sharers of suit property and, defendant No. 1 started demolishing old structure existing on first floor above shop of plaintiff and on objection raised by plaintiff, it was informed that only old structure was being demolished and new construction would start only after getting proper permission from concerned Department after strengthening base and structural strength of old existing building and plaintiff having faith in words of defendant No. 1 allowed him to demolish old structure of first floor - Thereafter on defendant No. 1 started raising new construction without asking or taking consent of plaintiff, that too without any permission from concerned authority or having any approval of site and such construction was started without strengthening base of building or giving any structural strength or support to building which caused seepage of water from first floor into shop of plaintiff, resulting into heavy loss to fittings of shop and also to stock of shop - Whether there is requirement of tying pillar/column with tie-beams at ground level or not.
Finding of the Court:
In case Expert Committee purposes construction of pillars/columns of building from ground floor, then plaintiff has to provide space for construction thereof, which shall be completed within reasonable time as considered by Expert Committee necessary for raising such pillars/ columns/beams/tie-beams and in case new lintel is to be laid on such pillars/columns by dismantling earlier one, plaintiff as well as defendants shall share cost as proposed by Expert Committee - Further modalities for completion of proposed construction shall be determined by trial Court either with consent of parties or otherwise after hearing the rival contention of parties on receipt of report of Expert Committee and appropriate order shall be passed with respect to grant or refusing permission to raise construction during pendency of suit – it would be appropriate to have an expert opinion of Three Members’ Committee consisting of Executive Engineer of HPPWD Division, Palampur and two other expert members/ Engineers, one each nominated by plaintiff and defendants, for examining the claim and counter claim of the parties with respect to safety of existing and proposed building including structure stability of hybrid construction proposed/undertaken on the spot and to suggest appropriate type of stable structure possible and permissible on the spot with safety of all for ensuring enjoyment of property by all and also to suggest mode and manner in which safe and stable structure can be constructed with estimated time and cost to be consumed for such construction work in the area of shop owned and possessed by plaintiff with specific finding as to whether raising of pillar/column would be sufficient or lintel has to be replaced and how and in what manner beam shall bear the load of lintel of first floor above the shop and whether there is requirement of tying the pillar/column with tie-beams at the ground level or not.
Result: Petition stand disposed of
ORDER :
Plaintiff-petitioner has approached this Court against impugned order dated 18.9.2017, passed by learned Additional District Judge (III), Kangra at Dharamshala in Civil Miscellaneous Appeal No. 05-D/XIV/2016, titled as Vikram Kanwar and another Vs. Shyam Sunder, whereby order dated 21.3.2016 passed by learned Civil Judge (Junior Division), Palampur, District Kangra, H.P. in CMA No. 317 of 2015, preferred in Civil Suit No. 336 of 2015, titled Shyam Sinder Vs. Vikram Kanwar and another, directing the parties to maintain status quo, qua nature, possession, construction and alienation, on the suit land, has been set aside and application filed by the plaintiff-petitioner herein under Order 39 Rules 1 and 2 CPC has been dismissed.
2. Petitioner and respondents are plaintiff and defendants respectively, in the main suit before the trial Court, therefore, for convenience hereinafter they shall be referred as ‘plaintiff’ and ‘defendants’ respectively.
3. Plaintiff has filed a suit for decree of permanent prohibitory injunction, restraining the defendants from forcibly constructing illegal floors, i.e. first and second floors above the shop of plaintiff located at Ground Floor and from blocking the path of the plaintiff existing on the back side of the shop of plaintiff in any manner or raising structure thereon or encroaching upon qua the share of plaintiff in the land comprised in Khasra No. 1981 measuring 26-52 Sq. meters.
4. As per plaint, case of the plaintiff is that he is owner in possession of 3800/9652 share of land comprised in Khasra No. 1981, with a share of 38 Sq. meters, and defendants are also co-sharers of the suit property and on 2.8.2015, defendant No. 1 started demolishing the old structure existing on the first floor above the shop of plaintiff and on objection raised by plaintiff, it was informed that only old structure was being demolished and new construction would start only after getting proper permission from the concerned Department after strengthening the base and structural strength of old existing building and plaintiff having faith in the words of defendant No. 1 allowed him to demolish the old structure of first floor. Thereafter on 8.9.2015, defendant No. 1 started raising new construction without asking or taking consent of the plaintiff, that too without any permission from the concerned authority or having any approval of the site and such construction was started without strengthening the base of the building or giving any structural strength or support to the building which caused seepage of water from first floor into the shop of plaintiff, resulting into heavy loss to the fittings of the shop and also to the stock of the shop.
5. It is further case of the plaintiff that due to construction work started by defendant No.1, there were cracks in the floor and walls of the shop of plaintiff and such illegal act can cause loss of life and property of plaintiff, other persons of vicinity as well as family of plaintiff, as the suit property has become unfit and unsafe.
6. Suit has been contested by the defendants by filing separate written statements, but on the same line, stating therein that plaintiff is owner of 38 Sq. meters shop located at ground floor of the building in reference and he is not co-owner in the entire property, but he has purchased the property in a sale conducted by Bank, as reflected in the latest jamabandi, vide mutation No. 1432. Therefore, it has been contended on behalf of defendants that plaintiff had no right, title over the lintel of the shop/building, as he had purchased the shop in his possession, but without any right on the lintel. It is claimed that defendant No.1 has right to repair, construct and re-construct the structure on the lintel of the ground floor as well as first floor, whereas plaintiff has no right, title or interest in those lintels and has no locus standi to interfere and/or stop the construction of the structure being carried out by defendant No.1 upo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
