SELABHAI MEGHABHAI BHARWAD Vs. ASHWINKUMAR KANTILAL SHAH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against common judgment and order dated 8-4-2005, rendered in Civil Misc. Appeal No.93 of 2002, whereby the order dated 13-9-2002 passed by the learned Joint Civil Judge (JD), Viramgam, rejecting the application of the petitioner (original plaintiff) at Exh.6 and allowing the application of the respondent (original defendant) at Exh.39, has been confirmed.

(2.) Briefly stated, the relevant facts of the case are that the petitioner filed Civil Suit No.64 of 2002 against the respondent-defendant, inter alia praying that the defendant may be restrained from carrying out certain illegal constructions, which are to the detriment of the petitioner's easementary rights, in addition to being carried out without permission of the Viramgam Municipality. Alongwith the Suit, the petitioner preferred an application at Exh.6 for grant of interim relief, of restraining the respondent-defendant from carrying out the construction in question. The respondent also filed an application at Exh.39 praying that the petitioner may be restrained from interfering with the construction being carried out by the respondent. By common order dated 13-9-2002 passed below the applications at Exh.6 and Exh.39, the Trial Court rejected the application at Exh.6 filed by the petitioner, and allowed that at Exh.39 filed by the respondent. Being aggrieved thereby, the petitioner filed Civil Misc. Appeal No.92 of 2002 and Civil Misc. Appeal No.93 of 2002, challenging the order of the Trail Court below Exh.6 and Exh.39 respectively. The District Court, after hearing the learned counsel for the respective parties and going through the material on record, agreed with the reasoning of the Trial Court to the effect that the respondent has made reasonable use of the common wall and that the petitioner has, prima facie, failed to prove that the common wall raised above the first floor is of his ownership. It was also found, on the basis of the panchanama drawn by the Court Commissioner, that the respondent has inserted pillars on the side of the wall which ultimately would strengthen the common wall and that, prima facie, there is no clear evidence on record to show that the said construction would weaken the walls, so as to forbid the respondent from making reasonable use of the said common wall. As far as the issue of construction contrary to the Plan passed by the Municipality is concerned, the District Court was in agreement with the reasoning of the Trial Court that it is the function of the Municipality to see that construction is made as per the Plan and that no encroachment of the land of the Municipality is made. Further, the District Court came to the conclusion that prima facie, the petitioner has failed to prove that the stairs put up by the respondent would affect the right of the petitioner or that the balcony on the eastern side would obstruct the right of light and air available to the petitioner.

(3.) Aggrieved by the judgment and order of the District Court, the petitioner approached this Court by filing the present petition. On 25-4-2005 Rule was issued in the petition. However, no interim relief was granted. Today, when the matter is taken up for final hearing, Mr.Umang Vyas, learned advocate for the respondent, has stated that the construction in question has already been completed by the respondent as there was no stay against the same. This aspect is not disputed by the learned counsel for the petitioner. It is submitted on behalf of the respondent that in the above-mentioned circumstances, there is no question of interim relief as prayed for before the Courts below.