- (1.) Challenge in the present revision petition filed under Article 227 of the Constitution of India is to the order dated 09.09.2014 whereby, the judgment debtors had been directed to remove the entire construction raised by them over the chabutra in question over the roof of the same on their own expense and 10 days were given to them. Therefore, prayer for recalling of the undertaking given on 03.05.2014 whereby, counsel for the judgment debtors had agreed that they would remove the projection within one month was accordingly dismissed.
(2.) Counsel for the petitioner has vehemently submitted that the predecessor of the present petitioners-Nanak Chand had only been restrained from raising construction and that the dispute was only regarding the chabutra on the ground floor and for opening any door on the northern wall of the chabutra and, therefore, the Court has gone beyond the decree dated 09.04.2002 by directing to remove the construction on the first and the second floor over the chabutra.
(3.) After perusing the paper book, this Court is of the opinion that the argument which is sought to be raised is belied from the record, as admittedly, as per the suit for permanent injunction filed by Vijay Pal, the respondent, the dispute was regarding restraining Nanak Chand from raising any construction over the common chabutra in dispute and for opening the door in the northern wall of the chabutra. The case of the respondentplaintiff in the suit was that the chabutra was a common property and situated in the main gate of Haveli and was used by all the owners including Nanak Chand and there was no entrance to the Haveli except the passage adjoining the chabutra. The factum of common entrance was denied by Nanak Chand, the defendant and eventually, by relying upon the earlier judgment Ex.D-3, the Court came to the conclusion that the chabutra in dispute is a common property and the defendant had no right to raise construction over the same. However, his right to open the door in his own wall towards the chabutra was granted to him. The relevant part of the decree dated 09.04.2002 reads thus:- "This suit is coming for final disposal before me (S.K. Garg, HCS, Addl. Civil Judge, (Sr. Divn.), Palwal in the presence of Shri P.K. Aggarwal Adv. for the plaintiff and Shri R.A. Gupta, Adv. for the defendant. It is ordered that the suit of the plaintiff is partly decreed with no order as to cost. The defendant is restrained from raising any construction over the chabutra in dispute. However, it is made clear that the defendant may open the door in his own wall towards the chabutra in dispute without creating any hindrance or obstruction in use of common chabutra by the plaintiff.";