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Jagbir Singh & Ors v. Urmila Hijra & Ors - CR-5527-2004  RD-P&H 1361 (2 March 2006)
CIVIL REVISION NO.5527 OF 2004(O&M)
DATE OF DECISION: FEBRUARY 16, 2006
Jagbir Singh and others
Urmila Hijra and others
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Mr.Nitin Kumar, Advocate,
for the petitioners.
Mr.Amit Rawal, Advocate,
for respondents No.2 and 3.
Defendants No.1 to 6 in the suit have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 15.6.2004 passed by the Additional Civil Judge (Sr.Division), Rohtak, whereby on the application filed by the plaintiff-respondent, the petitioners have been restrained from raising construction on the suit land; and the order dated 10.9.2004 passed by the Additional District Judge-I, Rohtak vide which the appeal filed by the petitioners against the said order has been dismissed.
2. In this case, the plaintiff filed a suit for possession of the building/plot in dispute, which is situated in the municipal area of Rohtak.
A prayer for restraining the defendants from raising the construction on the suit land was also made. In the suit, the plaintiff claimed the property in question on the basis of inheritance from one Ram Piari, who according to CIVIL REVISION NO.5527 OF 2004(O&M) (2)
the plaintiff, was Chela of Moti Hijra. It has been pleaded that since the plaintiff was residing with Moti Hijra and was serving him in his old days, therefore, he had nominated the plaintiff as his Chela during his life time and being Chela he is entitled to succeed the property of Moti Hijra after his death. It has been further pleaded that the defendants, who are belonging to different Sects and they are Chelas of different groups, they have no connection with the property.
3. On the other hand, defendant No.6 in his written statement stated that defendant No.2 was the owner of the suit property and he executed the sale deed in favour of defendant No.6 for a valuable consideration, and on the basis of the sale deed, defendant No.6 is owner in possession of the suit property. It has been further stated that since the property was in dilapidated condition, therefore, defendant No.6 after demolition has raised construction after getting the site-plan sanctioned from the Municipal Committee, Rohtak.
4. Before the trial Court as well as before the Appellate Court, the defendants made a statement that they are raising the construction on the disputed site after obtaining necessary permission from the Municipal Committee and they gave an undertaking that in case the suit is decided in favour of the plaintiff, then they will not claim any compensation and will remove the Malba from the suit property and hand over the vacant possession to the plaintiff. In spite of that undertaking, both the Courts below have restrained them from raising the construction.
5. I have heard the arguments of the learned counsel for the parties.
6. Counsel for the defendant-petitioners submitted that the suit of CIVIL REVISION NO.5527 OF 2004(O&M) (3)
the plaintiff is only for possession. Admittedly, the defendants are in possession of the suit land and now they are raising the construction after obtaining necessary permission from the Municipal Committee. The petitioners have also placed on record the photograph which shows that they have already completed construction on the first floor and construction on the second floor is incomplete. Counsel further submits that in case the petitioners are not allowed to complete the construction then a great financial loss will be caused to them. In that situation, counsel for the petitioners while referring to the decision of this Court in Dr.Bhupesh Mangla v. Dr.Ravi Chander Mangla and others, 2004(1) PLR 386 has submitted that the petitioners had already given an undertaking and are still making the statement that they will raise the construction at their own risk and responsibility and will not claim any compensation and in case the suit is decided in favour of the plaintiff, they themselves would remove the Malba and hand over the vacant possession.
7. After hearing counsel for the parties, I find some force in the submissions made by the counsel for the petitioners. Keeping in view the aforesaid facts regarding possession and raising of the construction after sanction from the Municipal Committee, I allow this petition on the undertaking given by the petitioners that they will raise construction on the disputed site at their own risk and responsibility and will not claim any possession and will remove the Malba from the said property in case the suit is decreed in favour of the plaintiff, and set aside the impugned orders.
February 16, 2006 ( SATISH KUMAR MITTAL ) vkg JUDGE
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