HARVEER SINGH Vs. VIDYA SHANKAR VAJPAYEE

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constitution, challenge is made to the order Annexure P-1 dated 05.11.2011. Brief facts necessary for adjudication of this matter are as under:-

(2.) RESPONDENT No. 1/plaintiff instituted a suit against the petitioners/defendants with a prayer to remove the encroachment. The suit was contested by defendants and it was decreed by Trial Court on 22.09.2001 (Annexure P-3). The said judgment was affirmed by first Appellate Court and got a stamp of approval in Second Appeal No. 558/2004 dated 10.07.2009 by the High Court.

(3.) A perusal of the judgment and decree (issue number 4 and 5) shows that the Court below has given a specific finding that the width of lane in question is 1.07 meter and it is encroached by the defendant only (Para 17). Consequently, the defendant was directed to remove the encroachment. This finding was not disturbed by the first Appellate Court and by the High Court in S.A. No. 558/2004. During the hearing in S.A. No. 558/2004, it was argued by present petitioners that present petitioners' construction is completed and plaintiff may be awarded some compensation rather removing the encroachment. It was also suggested that the plaintiff can be compensated in terms of money. This Court did not agree with the same and opined that it is not a case where defendants made construction without knowledge of restraint order. On the contrary, if compensation is allowed in such cases, the wrong message would go that restraint order of the Court may be easily violated and valuable rights like air, light and flow of water may be brought to an end by illegal and unauthorized construction in forcible manner. In view of finding in second appeal (Para 17 and 18), it is clear that the similar contention of the present petitioners was turned down by this Court by giving specific finding. Thereafter, there was no question of filing another application under Section 151 of CPC.