Rajasthan High Court
Vishnu Kumar Nirmal S/O Late ... vs Smt Geeta Devi W/O Late Shankarlal ... on 23 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 583/2020
Vishnu Kumar Nirmal S/o Late Bajranglal Nirmal,
----Appellant
Versus
Smt Geeta Devi W/o Late Shankarlal Nirmal,
----Respondent
For Appellant(s) : Mr. Dharnesh Sarswat for
Mr. Raunak Singhvi
For Respondent(s) : Mr. Abhishek Sharma, Mr. Vikas Jain
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
23/03/2022
This appeal has been filed against the judgment and decree
dated 20/1/2000 passed by Additional District Judge Chirawa,
Jhunjhunu in Civil Suit No. 107/2016 whereby the civil suit
seeking partition and permanent injunction has been dismissed.
In the present first appeal, the dispute between parties is
about one shop situated in Ward No.24 Chirawa, which was
purchased by respondent-defendant No.15-Smt. Rajesh Devi
(defendant herein) through registered sale deed dated 25/9/2009,
and since then she is in possession thereupon and carrying on
business. The appellant-plaintiff claimed 1/5 share in the shop in
question and challenged the sale deed dated 25/09/2009 to be
declared null and void. The trial court, vide judgment dated
20/1/2020, declined to declare the sale deed as null and void and
consequently dismissed the civil suit for partition. The judgment
(2 of 4) [CFA-583/2020]
dated 20/1/2020 has been challenged by the appellant-plaintiff by
way of this first appeal.
This court, vide order dated 8/11/2021, after hearing
counsel for respective parties passed interim order that "in view of
the order dated 8/9/2018, the respondent no. 1 to 5 and 15 are
directed not to alienate/create any third party right in disputed
shop, till the next date".
The first appeal has not been admitted so far. Since the first
appeal is required to be heard on facts and law, the same requires
consideration, hence, admitted.
During course of first appeal, the interim stay order dated
8/11/2021 is made absolute.
Accordingly, the stay application stands disposed of.
The defendant no. 15 has moved an application no. 1/2021
dated 23/11/2021 seeking permission to reconstruct the shop in
question. It has been averred that the construction of shop is near
about more than 50 years old and the material used in
construction have become dilapidated as old bricks, limestone, soil
etc. have damaged, side walls of shop have cracked, ceiling and
floor of shop has also been immensely damaged. It has been
averred that in the present situation, it is difficult to carry on
business in the shop in question and same is unsafe for human
life. Defendant no. 15 has prayed that she is owner of the shop
and there is no stay for raising a new construction by the Court,
however, the plaintiff obstructs in raising construction, therefore,
she has filed the application seeking permission to reconstruct her
shop by demolishing the old and dilapidated construction.
(3 of 4) [CFA-583/2020]
This Court, vide order dated 18/2/2022 appointed a Court
Commissioner to inspect the present position of shop and submit
his report. The Court Commissioner has made inspection and
submitted his report dated 1/3/2022 which is available on record.
By perusal of the report of Court Commissioner, the condition
of shop as given out by defendant no. 15 can not be doubted.
The plaintiff has filed reply to application and has opposed
the same. It has been contended that similar type of application
was filed by defendant no. 15 before the trial court and same was
dismissed vide order dated 30/3/2016. There is no change in
circumstances thereafter, hence, the application cannot be
allowed.
Heard learned counsel for both parties on the application.
It is not in dispute that the registered sale deed dated
25/9/2009 of the shop in question stands in favour of defendant
no. 15 and she is in possession over the shop. It is not in dispute
that the claim of plaintiff for partition and challenge to the sale
deed of defendant no. 15 has been declined by the trial court.
During the course of first appeal, this Court has passed interim
order only to the effect not to alienate/create any third party
interest in the disputed shop. It appears that the trial court, vide
order dated 30/3/2016, dismissed the application for
reconstruction on findings that both parties were directed to
maintain status quo. That apart, the actual position of the shop in
question was not available on record before the trial court, as has
been referred in the order dated 30/3/2016 itself. Now before this
court, the actual position of shop in question has come on record,
through the report of Court Commissioner. The defendant no. 15 is
in possession of the shop as owner. Since the shop in question is
(4 of 4) [CFA-583/2020]
in dilapidated condition, unsafe for human life and to carry out
business therefrom, the balance of convenience of equities lies in
her favour.
Therefore, this Court is of the opinion that in case, the
defendant no. 15 is allowed to reconstruct shop in question at her
own cost and consequences, no prejudice would be caused to
plaintiff. The right of plaintiff to claim partition to the 1/5 share
and challenge to sale deed of defendant no. 15 shall not be
adversely affected in any manner, if the defendant no. 15 is
allowed to reconstruct her shop.
In this view, the permission for reconstruction is granted.
However, the defendant no. 15 before carrying construction work
would furnish written undertaking supported with an affidavit
before this court with advance copy to respondent no. 1 that in
case, the plaintiff succeeds in the first appeal, she would neither
claim any cost nor equity in her favour. It is also made clear that
this order will not affect rights of either of parties to be
adjudicated in the present first appeal.
With the aforesaid, the application stands allowed.
(SUDESH BANSAL),J
ANIL SHARMA/57
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