Mangal Ram vs Krishan Singh

H.S. Brar, J.—During the pendency of the suit an application was filed by the respondentsdefendants seeking permission of the Court to raise construction of pucca house in place of katcha house already constructed by them, on the ground that they will raise the construction over the suit property and if the suit of the petitionersplaintiffs was decreed'' in that eventuality they will remove the construction/malba at their own expenses. It was also pleaded that their house was very old and it was in a very dilapidated condition and had become unfit and unsafe for human habitation and therefore, they be permitted to raise construction of their pucca house in place of old katcha house and be allowed to raise construction of Southern wall thereof, which was highly endangerous.

On notice, petitionersplaintiffs contested the application on the grounds that Kishan Singh defendant had made a statement on 13.12.1990 before the trial Court that he wanted to raise the construction of three walls of his house in dispute at his own expenses and he will not claim anything therefor but Kishan Singh defendant thereafter changed the existing nature of the house in dispute and also closed the exit of northern side of the house in dispute. According to the petitionersplaintiffs Kishan defendant had violated the terms and conditions of his statement and now he has moved the aforesaid application with ulterior motive, just to cause wrongful gain to himself and a wrongful loss to the petitionerplaintiffs, as according to the petitionersplaintiffs ownership of the house is in dispute and, therefore, respondentsdefendants had no right to raise construction or to change the existing nature of the house in dispute.

The trial Court on the request of both the parties appointed a local Commissioner who gave his report about the existing position of the property in dispute, the relevant portion of which, reads as follows :

"That there is kucha house, which is very old. The roof of the house is made by Balli, fatti and soil. The wall of the Southern side is damaged in 14'' at point GH. The room pointed as "B" in the site plan attached thereto. The wall of this room of Southern side is damaged to the outer side at point JK. There are two pillars of bricks in the verandah. A wooden pole is supported to roof in the hall. In the Northern side of the house, a cattle shed made of bricks and roof of wooden fatties."

After hearing the counsel for both the parties and going through the report of the Local Commissioner, the trial Court was of the view that the house of respondentsdefendants actually needed reconstruction but they could not be allowed to reconstruct the entire house. The trial Court held that in the interest of justice only kitchen and room marked as "B" were allowed to be reconstructed. It was further made clear by the trial Court in its order that in case the suit of the petitionersplaintiffs was decreed then the respondentsdefendants shall remove the entire construction of their house at their own responsibility and expenses, within the stipulated period, failing which the petitionersplaintiffs would also become owners of such property. The petitionersplaintiffs have challenged this order of the Additional Civil Judge (Senior Division), Jagadhri dated 2.8.1996.

It has been contended by the learned counsel for the petitionersplaintiffs that the impugned order of the learned trial Court is illegal and erroneous as it has allowed the respondentsdefendants to reconstruct a kitchen and a room when the dispute about the property is still going on. On the other hand, the learned counsel for the respondentsdefendants contended that on the request of both the sides the Local Commissioner was appointed and after inspecting the site, the Local Commissioner had reported that the house constructed on the site was very old and thus, the trial court has rightly allowed to reconstruct only one kitchen and room for the minimum bare living of the respondentsdefendants.

I find force in the arguments of the learned counsel for the respondentsdefendants. The report of the Local Commissioner, who was appointed with consent of both the parties, shows that the kucha house constructed on the site is in a very dilapidated condition. The trial Court, in the interest of justice, has only allowed one kitchen and room marked as "B" to be reconstructed at the site, for the minimum bare living of the respondentsdefendants. The learned trial Court has even further directed that if the case is decided in favour of the petitionersplaintiffs the respondentsdefendants shall remove the entire construction at their own responsibility and on their own expenses within the stipulated period, failing which the petitionersplaintiffs would also become owners of such property. I do not find any fault with this innocuous type of order.

After taking overall view of the situation, I do not find any force in this petition and the same is hereby dismissed. However, I direct the trial Court to decide the suit expeditiously. Parties shall appear before the trial Court on 5.2.1997.