BHARAT BHUSHAN Vs. TRIBHUVAN KUMAR

JUDGEMENT

(1.) This civil revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) against the order dated 27.4.20CH passed by the learned Additional Sessions Judge, Shimla in Civil Misc. Appeal No. 2 -S/14 of 1997 has been preferred by the petitioner -plaintiff (hereinafter referred to as the petitioners).

(2.) Brief facts leading to the presentation of this petition are that the petitioners instituted a suit for permanent injunction restraining they respondent -defendant (hereinafter referred to as the respondent) from carrying out any repair, additions, and alteration in the ground floor off the building known as House No. 6, Alley No. 12, Lower Bazar, Shimla1 without providing proper and effective support to first floor of the. Building. The case of the petitioners in short is that they are the | owners of the first floor of the aforesaid building. It is not in dispute that by virtue of a compromise decree between the parties, the respondent is in possession of the ground floor and the petitioners are in possession of the first floor. As per the terms of the compromise decree, the parties are duty bound to keep their respective portions of the premises in good, sound and perfect state and the petitioners have the right to support their respective portion of the building from the ground floor allotted to the respondent and in case of any renovation or reconstruction to be carried out by the parties, the same has to be carried out in a manner that does not affect the peaceful, convenient living and user of the parties. It is further cases of the petitioners that in the month of May, 1994, the respondent taking advantage of their absence started making unplanned additions and alteration in the ground floor in a manner so as to endanger the safety of the first floor which is in possession of the petitioners. Hence, the suit.

(3.) The respondent contested the suit on preliminary objections regarding maintainability, estoppel, valuation, cause of action and the suit being false and frivolous. On merits, it has been pleaded in the written statement that the construction work was carried out in accordance with the sanctioned plan and that appropriate precautions to the statability and safety of the first floor were taken. Thus, the claim of the petitioners has been denied.