Himachal Pradesh Housing and Urban Development Authority vs Sunder Singh Chandel

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree, dated 25.09.2004, passed by the learned District Judge, Bilaspur, Himachal Pradesh, in Civil Appeal No. 24 of 2000. ''Key facts'' necessary for the adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience), has filed a suit for permanent injunction directing the respondent-defendant (hereinafter referred to as "the defendant" for the sake of convenience) to remove the unauthorized construction raised by him. According to the plaintiff, the defendant has applied for allotment of a house in M.I.G. category. He was allotted plot/house No. 47 in the Housing Colony, Bilaspur and a hire purchase agreement was executed between the parties. According to the plaintiff, the defendant has raised construction by raising projection on the first floor in the house allotted to the defendant in contravention and violation of the approved map. A notice was served upon the defendant not to raise any construction and remove un-authorised construction. However, the defendant did not stop the construction. It is in these circumstances, the plaintiff has filed the suit.

The suit was contested by the defendant. According to the defendant, he has raised the construction as per the plan approved and has not violated the terms and conditions of the agreement. The learned Senior Sub Judge, Bilaspur, District Bilaspur, Himachal Pradesh has framed the issues. He dismissed the suit on 25.11.1999. Plaintiff preferred an appeal before the learned District Judge, Bilaspur, Himachal Pradesh. He also dismissed the same on 25.09.2004. Hence, this Regular Second Appeal.

This Regular Second Appeal was admitted on the following substantial questions of law on 17.11.2005:

Whether the judgment and decree passed by the First Appellate Court is perverse on account of misreading and mis-appreciating the cogent, reliable and oral documents led by the appellant-plaintiff?

Whether the plaintiff could maintained suit for the grant of mandatory injunction or not?

Mr. C.N. Singh, learned counsel for the appellant, on the basis of substantial questions of law framed, has vehemently argued that both the Courts below have mis-construed and misread the oral as well as documentary evidence led by the parties, including Ex. PW-2/B, i.e., plan prepared with regard to illegal construction done by the defendant. He also contended that the findings given by both the Courts below are contrary to the evidence led by the parties.

Mr. T.S. Chauhan, learned counsel for the respondent has supported the judgment and decree passed by both the Courts below.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

Copy of the Hire Purchase Tenancy agreement is Ex. P-1. Ex. P-2 is the letter of allotment issued in favour of the defendant and Ex. P-3 is a copy of notice issued to the defendant vide letter, dated 04.06.1992 to remove the unauthorized construction. A similar notice is issued on 09.06.1992 vide Ex. P-4.

PW-1, R.C. Katoch, S.D.O. has deposed that on 09.06.1992, they learnt about the unauthorized construction having been started by the defendant. According to him, they issued a notice on the same day. He further deposed that the construction was not as per the agreement. He admitted that he has not put his signatures on both the notices, dated 04.06.1992 and 09.06.1992. He denied the suggestion that the construction was raised by the defendant as per the agreement.

PW-2, Sh. R.D. Sharma, Junior Engineer of the plaintiff-Board, has deposed that he has brought the approved plan and the defendant has not raised construction as per the plan. In his cross-examination, he has deposed that he could not say when plan Ex. PW-2/B was prepared. He took measurement at the spot and prepared the plan in his office. He has admitted that he has not mentioned the date, month or year in the plan. He did not call the Patwari at the spot for demarcation.

Defendant has appeared as DW-1. According to him, he has raised construction as per the plan approved by the Board and as per the rules. Plaintiff was required to prove the extent of the construction raised by the defendant beyond the plan by specifying the particular portion. The plaintiff has not led any tangible evidence to establish that any expert has visited the spot and carried out the demarcation. The notices, dated 04.06.1992 and 09.06.1992 have not been signed by PW-1. PW-2, Sh. R.D. Sharma, Junior Engineer, has categorically admitted that he has not mentioned the date, month and year in the plan. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties, including Ex. PW-2/B. The substantial questions of law are answered accordingly. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending applications, if any. No costs.