This regular second appeal challenged the dismissal of a suit for mandatory injunction regarding alleged encroachment. The High Court upheld the lower courts' finding that the suit was barred by res judicata and dismissed the appeal.
The appeal was dismissed with parties to bear their own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.139 of 2006. Reserved on : 01.08.2017.
Decided on: 8th August, 2017.
H.P. Housing and Urban Development Authority through its Chief Executive Officer-cum-Secretary, Nigam Vihar, Shimla, District Shimla, H.P. ...Appellant.
Versus
Kusum Lata …Respondent.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Chander Narayan Singh, Advocate.
For the respondent : Mr. Ajay Kumar Sr. Advocate with Mr. Dheeraj K. Vashishst, Advocate.
Chander Bhusan Barowalia, Judge.
By way of the present appeal, the appellant has challenged the judgment and decree passed by the Court of learned Additional District Judge, Una, District Una, (H.P), in Civil Appeal No.69 of 2003, dated 3.12.2005, vide which, the learned lower Appellate Court has affirmed the judgment and decree passed by the then learned Senior Sub Judge, Una, District Una, (H.P), in Civil Suit No.216 of 1995, dated 5.5.2003.
Urban Development Authority. The plaintiff/board allotted LIG House
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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No.132, situated in H.P. Housing Board Colony at Rakkar, in favour of Jiwan Kumar son of Lachhman Dass. Shri Jiwan Kumar, executed Hire Purchase Tenancy Agreement. He was accorded permission for transfer of house to his daughter Kusum Lata/defendant (hereinafter referred to as ‘the defendant’). The said allotment was within a provision of some extension, which was to be carried out, after approval of the proposed construction, additions and alteration. The defendant submitted the plan for approval, which was approved by the plaintiff/board with certain modifications. The officials of the plaintiff/board in the month of September, 1994 found that the defendant was raising unauthorized construction, on the portion shown with letters ‘ ECGHIJKL ’ on the allotted land shown with letters ‘ DCNM ’ and the defendant had further encroached upon portion marked with letters ‘ ABCD ’ belonging to the plaintiff/board. The matter was reported to Assistant Engineer, who issued notice directing the defendant to stop the unauthorized construction, vide letters dated 8.9.1994 and 30.9.1994, but the defendant did not stop the construction work. The encroachment and unauthorized construction had caused legal injury to the residents of the colony and spoiled the uniformity of the plan carved out for providing maximum amenities to the residents and infringed the rules and regulations.
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There was a deep ‘Nallah’ on the western side of the house of the defendant. During the year 1979-80, due to erosion the danger was caused to the building of the defendant. Jiwan Kumar, father of the defendant constructed a retaining wall in the year 1980, on the back side of his house. The retaining wall was constructed with the permission and active consent of the Engineer and other staff officials of the plaintiff/board. The ground floor was constructed by the defendant in the year 1987-88. The plaintiff/board visited the place so many times, but no objections were raised. The construction was completed before 8.9.1994, but till then no objections were raised by the plaintiff/board. The defendant had become owner of the encroached portion by way of adverse possession.
1. Whether the plaintiff is entitled to the relief of mandatory injunction by demolition of unauthorized structure shown with letters CEFG and HIJKL in the site plan attached with the plaint as alleged ? OPP.
2. Whether the plaintiff is estopped to file this suit by his act and conduct ? OPD.
3. Whether the suit is hit by Order 2 Rule 2 CPC ?OPD.
4. Whether the suit is not within limitation ? OPD.
5. Whether the suit is not maintainable in the
6. Whether the plaintiff has no locus standi to file the present suit ? OPD.
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7. Whether the defendant has become owner of the suit land by adverse possession ? OPD.
8. Relief.
to 6 in affirmative, Issue No.7 in negative, suit of the plaintiff was dismissed.
law :
2. Whether the two Courts below have erred in holding that the suit is not maintainable on account of hire and purchase agreement not containing a specific condition that in case of violation of the terms and conditions mentioned therein, the structure would be liable to be demolished?”
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by the defendant. PW-1 K.K. Kalia, Assistant Engineer and PW-2 Achhar Singh, Junior Engineer, also does not make it clear, as to when the plaintiff came to encroach upon the land. The extent of encroachment shown in Ex.D-3, copy of site plan filed in earlier suit also makes it clear that the plaintiff had shown huge area under the possession of the defendant. But, strangely enough, he has now come up with a case showing lesser area of encroachment. Defendant Kusum Lata (DW-1), has deposed that the disputed plot was purchased by her father, which was transferred in her name, as per Hire Purchase Tenancy Agreement. She has asked the plaintiff to construct the retaining wall, as there was danger to the building due to the rains, but no wall was constructed and she herself has constructed the wall to save the building. The official of the plaintiff/board had been visiting the house and no objection was raised at the time of the construction and when the notice was received on 8.9.1994, then by that time the construction was complete. She has not raised any unauthorized construction over the land of the plaintiff and has raised construction only on the allotted plot. In her cross-examination, she has admitted that she had received notice Ex.P7, in which, she was asked to stop the construction, but by that time the construction was complete. She has also admitted that she has executed agreement Ex.P-6. She has also denied that she has raised construction without approval of the plan. Thus, from the evidence discussed hereinabove, the plaintiff is claiming
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mandatory injunction on the basis of Hire Purchase Tenancy Agreement, however there is no clause in this agreement that in case of any encroachment or deviation in the plan, the building is liable to be demolished or the suit land is liable to be resumed. Therefore, the plaintiff cannot claim the relief of mandatory injunction on the basis of Hire Purchase Tenancy Agreement Ex.P-6. The plaintiff is also barred by the provision of res-judicata. There is no demarcation report on record to show that the defendant has made any encroachment over the land of the plaintiff in order to support the claim of the plaintiff. Therefore, it cannot be said that the defendant had made any encroachment on the suit land. The plaintiff has also failed to place on record the approved plan of the Rakkar colony to show what type of design the plaintiff has planned and what type of deviation has been made by the defendant. The plaintiff has even failed to place on record the approved plan of the plot of the defendant, which has been approved by the Architect of the plaintiff, which was offered for sale in order to compare the plan Ex.P-4. According to the plaintiff, the defendant has got the plan of the house approved from the plaintiff, but no such approved plan has been placed on record.
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violation of the conditions of Hire Purchase Tenancy Agreement and the learned Courts below have appreciated the evidence to its true perspective and the law is applied correctly. So, substantial question of law No.2, is answered holding that the findings of the learned Courts below that there is nothing in the agreement that the structure be demolished in violation to the terms and conditions, as contained in Hire Purchase Tenancy Agreement are correct.
(Chander Bhusan Barowalia)
8th August, 2017 Judge (CS)
3 issues framed by the court
Whether the suit is barred by the principle of res judicata?
Whether the Hire Purchase Tenancy Agreement mandates demolition of unauthorized structures?
Whether the Courts below erred in holding the suit maintainable?
1 provisions across 1 enactments
H.P. Housing and Urban Development Authority
Kusum Lata
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
