Disposed

Ashok Kumar v. Rajendra Kumar and Ors.

Rajasthan HC8 May 2009CMA/3148/2008

Case brief

AI extract

What is this about?

This civil miscellaneous appeal concerns a partition suit where the trial court dismissed an application for construction permission. The High Court held that permission should be granted contingent upon the appellant furnishing a specific undertaking regarding rights over the constructed portion.

What did the court decide?

Permission for construction of a toilet was granted subject to furnishing an undertaking to the trial court regarding rights over the constructed portion.

Ashok Kumar Vs Rajendra Kumar and Ors. — Partition | Rajasthan HC (2009)

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S.B.CIVIL MISC. APPEAL NO.3148/2008. Ashok Kumar Gupta. VS Rajendra Kumar Gupta & Ors.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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ORDER

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S.B.CIVIL MISC. APPEAL NO.3148/2008. Ashok Kumar Gupta. VERSUS

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Rajendra Kumar Gupta and Others.

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08.05.2009.

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HON'BLE MR.JUSTICE DALIP SINGH

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Mr.R.K.Mathur, for the appellant. Mr.J.P.Goyal ] Mr.Manish Gupta ] for the respondents. *********

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Service upon the respondent No.2 is dispensed with in view of the fact that all other respondents are represented and served. The application No.34561 dated 17.12.2008 stands disposed of.

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Heard on the merits of the appeal.

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By the impugned order dated 24.04.2008, the application submitted by the appellant for permission to raise construction of a toilet in the disputed premises has been dismissed by the learned trial court.

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The suit is one for partition. So far as the right of

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S.B.CIVIL MISC. APPEAL NO.3148/2008.

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Ashok Kumar Gupta. VS Rajendra Kumar Gupta & Ors.

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the appellant in the property in dispute is concerned, the same is not disputed.

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Learned counsel for the appellant submitted that the necessity has arisen on account of the physical condition of the wife of the appellant who is unable to squat and, therefore, a western style toilet is required for her. The grievance of the respondent is that till such time, as the shares are not demarcated and the respective portions are not allocated to the parties, the construction by one of the parties over the property in dispute may result in being claimed as of right by the said party over the said portion.

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Learned counsel for the appellant submits that the appellant has offered to give an undertaking and is willing to give an undertaking before the learned trial court to the effect that the appellant would not claim any right over the newly constructed portion exclusively for himself in the final decree proceedings and in case, in the final decree, the said portion comes to the share of the appellant, the rights of the parties shall be determined in accordance with the original

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S.B.CIVIL MISC. APPEAL NO.3148/2008. Ashok Kumar Gupta. VS Rajendra Kumar Gupta & Ors.

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portion of the property in dispute. In case, the newly raised constructed portion falls within the share of any other party, the appellant would not claim any right or compensation in that behalf.

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It is thus ordered that in case, such an undertaking is furnished to the satisfaction of the other parties before the learned trial court, the learned trial court would accordingly accord the permission to the appellant for construction of the toilet as prayed.

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In the facts and circumstances, subject to the above, the appeal as well as the stay application and the application No.34561 dated 17.12.2008 stands disposed of.

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(DALIP SINGH),J.

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Solanki DS, Jr.P.A.

Ashok Kumar v. Rajendra Kumar and Ors.

Case brief

What is this about?

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Ashok Kumar v. Rajendra Kumar and Ors.

Case brief

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