Delhi District Court
Shri Kanhiya Lal vs Smt. Shanti Devi on 29 October, 2011
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12 TIS
HAZARI COURTS, DELHI.
Case no.: 212/08
Dated: 29.10.2011
Shri Kanhiya Lal .....Plaintiff
Versus
Smt. Shanti Devi .....Defendant
Order on application under Order 39 Rule 1 and 2 CPC
1.The plaintiff has filed a suit for partition, mandatory and permanent injunction in respect of property measuring 300 sq. yards as situated in Khasra no. 260/3 at Main Road Village Chhatar Pur Mehroli Delhi as shown in the site plan annexed with the plaint(herein after called "suit property").
2. The plaintiff has claimed 1/7 share in the said property calling it to be joint and having come into his share on account of his father Sh. Mangat Ram dying intestate on 04.08.1991.
3. The suit has been opposed by the defendants on various grounds technical as well as factual. On technical aspect the plea is pertaining to valuation and Court Fees. On factual aspect the case as propounded by the defendants no. 1 to 3 is that the plaintiff has no share in the suit Page 1 of 3 property and defendants no. 2 and 3 are the absolute owners as they were given the same by their deceased father by oral bequeath during his life time. The defendant no. 2 have raised construction on the suit property from their own funds without any contribution by the plaintiff. The plaintiff is also not in physical possession of the suit property.
4. By his application under Order 39 Rule 1 and 2 CPC the plaintiff has alleged that defendants no. 2 and 3 are raising illegal and unauthorized construction in the suit property and that the plaintiff lodge a numbers of complaints with police in the month of August, 2008. He has sought restraint order against defendants no. 2 and 3 from raising any unauthorized construction in the open space of the suit property as shown in red in the site plan annexed.
5. The application has been vehemently opposed on behalf of defendants no. 2 and 3 stating that the plaintiff has no right, title or interest in the suit property and that they are in continued and uninterrupted possession since last 28 years.
6. I have considered the rival submissions.
7. The defendants no. 2 and 3 are in possession of the suit property. The rival pleadings of the parties are yet to be tested by way Page 2 of 3 of trial.
8. The right to life not only includes bare existence, it includes right to live with dignity. Therefore, the defendants no. 2 and 3 who are living in the suit property have every right to carry out necessary repairs etc. to make the property inhabitable. However, they have no right to raise any construction without seeking an approval from the competent authority which is authorised under law to grant such sanction for construction.
9. Therefore, appreciating the rival submissions made and keeping in view the balance of convenience of both the parties, the application under Order 39 Rule 1 and 2 CPC is disposed off with direction to defendants no. 2 and 3 not to carry out any construction in the open space as shown in red in the site plan of the suit property without getting a building permit/sanction from the competent authority. However, the defendants no. 2 and 3 shall be entitled to carry out necessary repairs as permissible under the law. Application stands disposed off accordingly.
Announced in the Open Court today i.e. 29.10.2011 (Man Mohan Sharma) ADJ 12 (Central), Delhi Page 3 of 3