KALAWATI Vs. SUDHIR CHAND

JUDGEMENT

(1.) THIS petition is directed against the order dated 28 -12 -2009 passed by the learned Additional District Judge, Solan whereby he dismissed the appeal filed by the present Petitioner (hereinafter referred to as the 'Defendants ') and affirmed the stay order passed by the learned trial Court.

(2.) BRIEFLY stated, the facts of the case are that the Plaintiffs filed a suit for declaration that they are in possession of the house comprised in Khasra No. 77. They also alleged that they are joint owners in possession of the suit land comprised in Khasra No. 85 measuring 6 Biswas and also joint owners of old double storeyed residential house consisting of two rooms and a closed verandah in the ground floor and similar accommodation in the upper storey. According to the Plaintiffs, he and his brothers are in possession of one room in the upper storey and one room in the ground floor including the portion of verandah in both storeys of his house situated in Khasra No. 77, total land measuring 4 Bighas 7 Biswas. The Plaintiffs claimed that the Defendants demolished two rooms in the ground floor and similar accommodation in the first floor in this joint ancestral house and have started reconstructing the same and they filed the suit praying that Defendants be restrained from raising construction in Khasra No. 85 measuring 6 Biswas and claimed that the Defendants had demolished the old house without leaving 4 feet width space for ingress or outgress to the Plaintiffs. Along with this suit, an application under Order 39 Rule 1 and 2 was also filed for grant of stay, in which same prayer was made.

(3.) BOTH the Courts below held in favour of the Plaintiffs. Sh. Khoob Ram, learned Counsel for the Petitioners contended that the Courts below have not even cared to read the prayer made in the application. He submits that as far as the old house is concerned, the only prayer made was that Defendants be restrained from reconstructing the house unless they leave a passage of 4 feet width. According to him, there was no prayer for complete ban on the construction. He also submits that the share of the Plaintiffs in Khasra No. 85 is very small and the construction being done by the Defendants in a very small portion falling to their share and no prejudice is going to be caused to the Plaintiffs in case the construction is completed at the risk and cost of the Defendants. It was lastly contended that the suit was filed at a belated stage when the Defendants had already spent a huge amount and raised construction of 3 storeys and have laid linters on three storeys and, therefore, no stay should have been granted.