I.D. Sharma vs H.P. Housing and Urban Development Authority

Sanjay Karol, J.—Plaintiff-appellant Shri I.D. Sharma, hereinafter referred to as the plaintiff, has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 15.10.2013, passed by the learned Additional District Judge, Hamirpur, in Civil Appeal No. 88 of 2012, titled as I.D. Sharma v. H.P. Housing & Urban Development Authority, whereby judgment and decree dated 30.7.2012, passed by the Civil Judge (Junior Division), Court No. III, Hamirpur, Himachal Pradesh, in Civil Suit No. 231/2009, titled as I.D. Sharma v. H.P. Housing & Urban Development Authority, stands affirmed.

Plaintiff filed the suit for mandatory injunction, directing the defendant-respondent, hereinafter referred to as the defendant, to provide proper channel for rain water at the back and front side of House No. 139, restore the original path to the house and erect a retaining wall at the back of houses No. 138 to 141.

Defendant filed written statement, wherein it is stated that the houses in question stood handed over to the Municipal Committee, Hamirpur for municipal functions during the year 1986-87 and thereafter the defendant is not bound to maintain the same. It is also stated that grievance of the plaintiff regarding providing of proper channel for rain water, restoration of common path to the houses, erection of wall etc., cannot be addressed at this belated stage.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the suit of the plaintiff is not maintainable in its present form? OPD

Whether the suit is bad for non-joinder and mis-joinder of necessary party? OPD

Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP

Whether the plaintiff has got no cause of action to file the present suit? OPD

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

Relief.

Trial Court dismissed the suit. Judgment and decree, so passed by the trial Court, stand affirmed by the first appellate Court. Hence, the present appeal by the plaintiff.

Having heard learned counsel for the parties, I am of the considered view that no case for interference is made out. No question of law, much less substantial question of law, arises for consideration in the present appeal. Trial Court has fully considered the material so placed on record by the parties.

From the testimonies of Shri Rup Lal (DW-1) and Shri Anil Sood (DW-2), it is evident that appropriate provisions have been made for channelizing the rain water by constructing drains etc. As such, it cannot be said that the rain water, in any manner, is damaging the property of the plaintiff. Also, plaintiff could not establish through his testimony the case so pleaded with regard to the non-channelization of the rain water and the access to his property through the passage which allegedly was in existence at the time of allotment of the plot to him.

As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, much less substantial question of law, arises for consideration in the present appeal.

For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.