CR/238/2015 on 29 December 2017

1. That according to existing position on the spot the backside of the houses owned by the parties, there exist end point of existing stairs, this at distance of 2:30 mtrs from the outer wall of the house of the defendant. These stairs are connecting Hospital approach road to the house and lands of both the parties. The stairs will remain common as before none of the parties will have any right to cause any type of obstruction in the use of the said stairs.

2. The plinth beam of 16 mts in length is in existence, which is house of defendant under construction, and above the said, there is projection of 1 mts, towards land of plaintiff and Sh. Bhardwaj and defendants and the other side. The projections vary from 0.40 mts to 1 mts i.e. towards house of the plaintiffs (already constructed.) The existing position is more specifically shown in the map attached to this agreement and the same forms the part of this agreement and will the read as contains of compromise.

3. That no projection will be raised or construed by the defendants beyond the end point of plinth beam presently existing, except projections already existing i.e. on ground floor and on one side of the 1st floor.

4. That parties have agreed that open space for common use as passage will be kept which will be 1.60 mts on towards the side of Sh. Bhardwaj and 2.30 mts. From the wall of the house of defendant adjoining existing stairs.

5. That there will be a common passage of 1 mts from existing beam an pillar of house under construction towards North towards plot of Mr. Bhardwaj. The said common path stairs from the said pillar whre 1.60 mts open space ends. This path goes up hill. The parties will not base any construction or projection over the path and will keep the same without any objection in the space.

6. That defendant admit the plaintiffs to be owner of the land under the or house and open space, i.e. the open space beyond 1.60 mts as metioned above extend mts downward towards Hospital Road and thereafter extends towards the existing stairs.

7. The plaintiffs admit the defendant to be owner of land and house situated beyond stairs South or house of plaintiffs. The maps of spot have been prepared by Sh. A.B. Singh, R/o Kotla Nalla Solan.

8. That both the parties shall construct a proper drainage system so as to ensure that any waste water, rain water and other domestic effluents are properly discharged and may cause any type of damage to the houses of the parties. The same shall be kept properly to avoid any nuisance.”

2. Since the defendants purportedly, omitted, to mete compliance, with, the mandate of the compromise decree, (i) thereupon the plaintiff was constrained, to, institute before the learned executing Court, an application borne under the provisions of Order 32 Rule 27 CPC, seeking therein direction(s,) upon, the defendants for his meteing compliance therewith, besides upon his infracting the apposite applicable vis-à-vis him, mandate(s) of the compromise decree, his being directed to suffer civil imprisonment. The purported non-compliance(s) by the Judgment Debtor, specifically appertaining to

(i) purported deviation(s) being meted by him in his holding construction, upon, property owned and possessed by him, (ii) besides his, though, being injuncted, his not relegating, the status of the property owned by him to a stage, vis-à-vis the year 1994 (iii) were hence disaffirmatively adjudicated upon by the learned executing Court. The learned Executing Court, in making disaffirmative pronouncement(s) thereon, it placed reliance, upon, the testification(s) rendered by RW-2, wherein he echoed of the apposite sanction plan(s), borne respectively in Ext. C-2 and in Ext. C3, AND as appended with the compromise decree, standing not infringed at the site of construction, by the defendants, (iii) importantly despite, his standing subjected to an ordeal, of, a rigorous cross- examination, by the counsel for the plaintiff/decree holder, his therein omitting to make any communication(s) in support, of, the plaintiff/decree- holder. Consequently, imputation(s) of reliance by the learned Executing Court, upon, the testification of RW-2, for its hence declining the relief(s) vis-à-vis the Decree Holder emphatically vis-à-vis the Judgment Debtor, infracting the apposite mandate, of the compromise decree, sparked, by his purportedly deviating from, site plan(s), respectively borne in Ext. C-3 and in Ext. C-4, AND qua his purportedly not maintaining the status held by him upon the land, owned and possessed by him, specifically vis-à-vis the year 1994, hence obviously does not merit any interference.

4. Be that as it may, a perusal of the mandate(s) of the compromise decree , rendered, by the learned trial Court, unveil(s) of the contestants’ ensuring proper drainage system, for, ensuring that any waste water or other domestic effluents, are, properly discharged and not to cause any type, of, damage to the houses of the parties, (i) thereupon the decree- holder enunciated, in, the execution petition, of, the JD in infraction thereof, not maintaining proper sewerage system, hence his house being rendered unsafe for habitation. One Kavita Thakur, the Local Commissioner concerned, had, rendered a testification inconsonance therewith. However, the learned Executing Court, merely, on anvil of a grossly specious reason(s), of, the compromise decree, not, making any articulation with respect to the contesting parties maintaining sewerage pipe(s), hence declined relief in respect thereof. Nonetheless, the aforesaid declining, of, relief(s) to the decree holder, is, a sequel of the learned executing Court, making, gross misreading(s), of the apposite mandate, of, clause-VIII of the compromise decree, wherein, both the contesting parties, were, rather enjoined to construct a proper drainage system, besides were enjoined to ensure proper discharge, of domestic effluents, thereupon, the encumbering(s), of, aforesaid liabilities upon each of the contesting parties also encompassed therein, the concomitant liability(s), of, each maintaining efficient effluent sewerage line(s).

5. Consequently, the petition is partly allowed and the impugned order is partly modified. Both the parties are directed to, within three weeks, hence ensure, construction of a proper drainage system, for ensuring efficient effluent discharge(s), of, domestic effluents therefrom, for ensuring prevalence, of, hygienic condition(s), for thereupon each ensuring theirs living in fit habitable abode(s). All pending application(s) if any, are also disposed of.

(Sureshwar Thakur)

Judge December 27, 2017 Kalpana