Construction completed prior to six months of a demolition notice is protected under law, affirming the right to seek an injunction against such demolition.

JUDGMENT :

(Vikas Bahl, J.)

Present Regular Second Appeal has been filed under Section 41 of the Punjab Courts Act, 1918 by the appellant-defendant against the judgment and decree dated 16.10.1989 passed by the Additional District Judge, Faridabad, vide which the appeal filed by the respondent-plaintiff has been allowed and the suit of the plaintiff has been decreed and the judgment of the trial Court dated 27.03.1989 passed by the Sub-Judge, IInd Class, Faridabad has been set aside.

2. Brief facts of the case are that the respondent-plaintiff (hereinafter referred as “the plaintiff”) had filed a suit for permanent injunction to the effect that defendant be restrained from demolishing the suit property. It was the case of the plaintiff that he was the owner in possession of house shown as ‘A B C D E F G’ in the site plan, which had been exhibited as Ex.P2 and was situated in Khewat No.28/23, Khatoni No.56/55, Khasra No.1370, situated within the revenue estate of Mauja Faridabad, Sub-Tehsil & District, Faridabad. The relevant jamabandi was annexed with the plaint in order to show the ownership of the plaintiff. It was averred that a residential house along with a boundary wall had been constructed by the plaintiff and he was enjoying the peaceful possession and ownership of the property when the defendant/present appellant (hereinafter referred to as “the defendant”) issued a notice dated 02.12.1986 under Section 235 of the Haryana Municipal Act, 1973 demanding the plaintiff to demolish the house. It was stated in the plaint that since the construction was an old construction, thus, the same could not be demolished as per the provisions of law. A reply was filed to the said plaint in which it was stated that the construction had been raised by the plaintiff on the suit property in the month of November, 1986 and therefore, the notice was issued to the plaintiff under Sections 208, 209 and 235 of the Haryana Municipal Act, 1973 on 21.11.1986 and thereafter, on 02.12.1986. It was reiterated that the construction had been done in the month of November, 1986 and thus, notices were issued within the requisite time and therefore, they were in accordance with law and accordingly prayer for dismissal of the suit of the plaintiff was made. Replication was filed by the plaintiff denying the averments made in the written statement.

3. The trial Court on 02.06.1987 framed the following issues: -

“1. Whether the plaintiff constructed his house and boundary wall in dispute in the year 1980 if so to what effect? OPD.

2. Whether the defendant is demolishing the suit property without any legal right? OPP

3. Whether the suit is not maintainable ?OPD.

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

6. Whether the plaintiff has not cause of action to file the present suit? OPD.

7. Relief.”

4. The trial Court had dismissed the suit of the plaintiff after observing that the plea of the plaintiff to the effect that he had raised construction in the year 1980 was not proved by the respondent herein rather, a perusal of the khasra girdwari (Ex.P-4) showed that the construction of a 2 (biswas) house had been done up to March, 1986 and subsequently other construction had also been made and since the plea of the plaintiff as taken in the plaint was not proved, thus, the suit was dismissed.

5. The plaintiff filed an appeal against the said judgment and decree and the appeal was allowed by the Additional District Judge, Faridabad, vide judgment and decree dated 16.10.1989 and it was observed that simply because the plaintiff had not been able to prove that the construction was carried out in the year 1980 could not be a ground to dismiss the suit, when he had in fact been able to establish that the construction was raised at least six months prior to the issuance of the notice under Section 208 of the Haryana Municipal Act. It was furt