Delhi District Court
Shri Pushkar Dutt Sharma vs Shri Gian Parkash Sharma on 6 May, 2011
IN THE COURT OF SHRI AMIT KUMAR, SCJ/RC(WEST)
TIS HAZARI COURTS, DELHI
S219/02/2000
Shri Pushkar Dutt Sharma
S/o Late Shri Muni Lal Sharma
R/o B6/105, Safdarjung Enclave,
New Delhi ...Plaintiff
Versus
1. Shri Gian Parkash Sharma
S/o Late Shri Muni Lal Sharma
R/o 40/1, Yusuf Sarai Village,
New Delhi
2. Shri Narender Kumar Sharma
S/o Late Shri Muni Lal Sharma
R/o G19, Greater KailashII
Masjid Moth, New Delhi
3. Shri Bikram Dutt Sharma
S/o Late Shri Muni Lal Sharma
R/o 46, Udai Park,
New Delhi ...Defendants
Date of filing of the suit : 19.05.2000
Date of reserving Judgment : 06.05.2011
Date of pronouncement : 06.05.2011
JUDGMENT
1. Present is a suit seeking relief of perpetual injunction filed by one brother against his three brothers claiming that their deceased father Late Shri Muni Lal Sharma was the owner of properties No. 47/1 to 47/6 situated in Khasra No.74, Village Yusif Sarai Jat and Shri Muni Lal Sharma was died on 23.03.92 leaving behind a Will dated 08.03.85. After his death, a dispute arose between the parties, but it was mutually settled and an oral settlement was arrived between the parties and a site plan was prepared and as per this settlement, they applied for mutation and subdivision of properties in their individual names to MCD on 20.12.93. The other legal heirs of their father gave NOC in favour of the parties to this suit and thereafter, Shri O.P. Garg, the then Tax Recovery Collector mutated and granted subdivision of the properties in the respective names of the parties to this suit and since then, it is separately assessed in their respective names and the portion shown in green came to the share of plaintiff, the portion shown in red colour came to the share of defendant No.1, portion shown in blue colour came to the share of defendant No.2, portion shown in yellow colour came to the share of defendant No.3 and the portion common to all the brothers was shown in brown colour. It is claimed that sewer line as well as water pipe lines of the plaintiff passes through this portion shown in brown and further tenant of the plaintiff on the first floor of the portion owned by him namely State Bank of Indore was using this common portion to approach the first floor but now defendant No.1 has constructed an iron collapsable gate at point X2 and X3 and a wall at point X4 and X5. They now constructed a wall at point X6 and X7 and the same has resulted in depriving the plaintiff, his right not only to use common passage, but also from inspecting his sewer line and by way of the suit, it is prayed that the defendants should be directed to remove this collapsable gate as well as their walls and further, they should also be restrained from damaging the sewer line and water pipe lines of the plaintiff as well as his right to use the passage for using the stairs leading to the first floor.
2. Written statement alongwith counterclaim was preferred by defendants 1 and 3 and defendant No.2 never appeared since exparte and defendants 1 and 3 have stated that the suit is without any cause of action and the mutation and the subdivision of the property as done by Shri O.P. Garg, the then Tax Recovery Collector will show that there is no common passage as alleged by the plaintiff and the property has been mutated and subdivided for the respective shares of the brothers as per the separate valuation report alongwith site plan filed with MCD and the plaintiff has no right whatsoever as alleged in the portion shown in brown colour in the site plan. It was also claimed that as per fresh site plan filed before MCD, the portion shown in green has come to the share of the plaintiff, portion shown in blue has come to the share of defendant No.1, portion shown in red has come to the share of defendant No.2 and portion shown in yellow has come to the share of defendant No.3. It was also claimed that their deceased father had cancelled his Will dated 08.03.85 vide registered deed dated 22.11.91 and though a site plan as alleged by the plaintiff was prepared in 1993, but was not acted upon and was unimplemented since mutation could not be carried out as per this site plan because of common passage and therefore, parties entered into a new agreement and the mutation was done as per fresh site plan as stated above. It was also stated that even as per earlier site plan, the portion in brown colour in the site plan of 1993 was common portion only for the defendants and the plaintiff has no right in that portion. The fact that female legal heirs of Late Shri Muni Lal Sharma gave their NOC in favour of the parties to this suit is not disputed. It is however claimed that because of nonmutation of the property and because of common portion, a new arrangement was entered into in 1995 and parties submitted their revised site plan and it was acted upon and the property was subdivided as per site plan. It was further claimed that sewer line or the water pipe line of the plaintiff are not passing through the portion shown in brown since it was orally agreed that they will have separate sewer and water pipe line after subdivision, which now exists and the suit is without any cause of action.
3. In the counterclaim filed by defendants 1 and 3, it was claimed that as per subdivision, the parties have become owners of their respective portions and plaintiff as per the agreement would get a separate fresh water connection as well as sewer line in his own portion and will make his own arrangement, but he is still using the sewer line passing through the portion of the defendants and further plaintiff has opened 3 windows on the first, second and third floor of the portion coming to his share towards the side of the property of the defendants by which he has adversely affected their private rights and easement rights and therefore, plaintiff should be directed to close these windows. It was also claimed that the plaintiff is now running unlawful restaurant on the first floor causing huge load on the existing sewer line without any license and therefore, it was prayed that the plaintiff should be restrained from using this sewer line and close his restaurant, close his windows and he should be directed to construct his own sewer line passing through property owned by him.
4. On the pleadings of the parties, following issues were framed by my Ld. Predecessors on 28.05.01 :
1. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP
3. Whether defendant No.1 and 3 are entitled for relief of mandatory injunction as prayed in counterclaim? OPD 1 & D3
4. Whether defendant No.1 and 3 are entitled to relief of permanent injunction as prayed in counterclaim? OPD 1 & D3
5. Relief
5. To prove the issues, plaintiff has examined himself as the sole witness in support of his case whereas defendant No.3 has examined himself as the sole witness for the defendants 1 and 3. My findings of the issues are as under:
6. ISSUES NO.1 AND 2 :
Both the issues are interlinked and they are decided together. The onus of proving these issues was on the plaintiff who in his examination in chief has reiterated the contents of his suit and has proved on record the site plan as prepared in 1993 as Ex. P1, the application filed for mutation as Ex. P2 and the site plan annexed with the application as Ex. P3. The affidavits of the parties including the affidavit of their mother and sisters filed before MCD are Ex. P4 to P11. He has further stated that as per the settlement, the portion shown in brown in Ex. P3 was the common portion and his sewer line is passing through it. In his cross examination, he has very importantly admitted that on their representation to MCD, mutation has been done in their respective names and in respect to their respective shares and they are paying the house tax accordingly till date.
7. This witness was cross examined on 15.09.05 and the assessment order Ex. PW1/D1 is dated 19.10.95. There is no challenge to this order till date and the witness admits that the property is mutated in their respective names as per shares and paying house tax without any objection till date and in these facts and circumstances, the mutation order Ex. PW1/D1 put to this witness in his cross examination through the original file summoned from south zone office of MCD becomes important. This document Ex. PW1/D1 becomes the only important document since admittedly, this document mutates the property of the respective shares of the parties in their names in 1995 and remains unchallenged not only till the date of the suit, but till today. This mutation order shows that up to 199293, property was shown as joint portion during the lifetime of the deceased father of the parties who died on 23.03.92 and after his death, it is mutated in the respective names of the plaintiff and the defendants for their respective portions coming into their possession. Plaintiff has 1541 sq. feet in his possession on the ground floor, defendants 1 and 3 have 875 sq. feet on the ground floor and defendant No.2 has 1254 sq. feet on the ground floor. If the same is tallied with the site plan prepared in 1993, the area shown in possession of these brothers as per the site plan Ex. P3 is entirely different from the shares mutated in their respective names. The site plan Ex. P1 and Ex. P3 which are one and the same thing shows that plaintiff is in possession of an area measuring 1522 sq. feet, defendants 1 and 3 are in possession of portion of 778 sq. feet whereas defendant No.2 is in possession of 816 sq. feet and the common portion as shown in brown colour is 739 sq. feet. The mutation acted upon by the parties since 1995 is entirely different from the area shown in their possession vide site plan Ex. P1 and Ex. P3. Contrary to it, the area shown in the site plan subsequently filed with MCD alongwith valuation report Ex. D3W1/2 shows that it tallies with the area mutated in the name of the brothers. For instance, the area shown in possession of defendants 1 and 3 as per this site plan is approximately 817 sq. feet whereas as per the mutation order, the portion in their possession is 875 sq. feet and the same seems to be in accordance to the mutation order and therefore, supports the case of the defendants that the site plan Ex. P1 and Ex. P3 though prepared in 1993 but was never acted upon because of common portion and therefore, a new site plan was prepared.
8. Ld. Counsel for the plaintiff has strongly argued that D3W1 in his cross examination has admitted the fact that Ex. P1 and Ex. P3 were prepared after oral settlement and were signed by all the brothers and the plaintiff has further proved that portion shown in brown was kept common and therefore, supports the case of the plaintiff and further D3W1 has admitted that new valuation report Ex. D3W1/2 does not bear the signatures of the plaintiff and therefore, plaintiff is not bound from the same.
9. I have considered his submissions. It is never disputed by the defendants that an oral settlement vide Ex. P1 and Ex. P3 was prepared but no benefit can be taken by the plaintiff from this admission in the cross examination since it has been explained by the defendants that because of this common portion, this site plan was not acted upon and therefore, a new arrangement/settlement was done. As far as the question that D3W1/2 does not bear the signatures of the plaintiff is concerned, though admittedly, this document does not bear the signatures of the plaintiff, but the subsequent mutation carried out vide Ex. PW1/D1 dated 19.10.95 was never challenged by the plaintiff and therefore, he accepted sub division of the property as carried out vide mutation order Ex. PW1/D1. It has not been explained by the plaintiff that when a portion in brown colour has been shown as common in Ex. P1 and Ex. P3 and the portion of defendant No.2 has been shown only of 816 sq. feet, then why the portion of defendant No.2 as per mutation order Ex. PW1/D1 is 1254 sq. feet and why there is no common portion of 739 sq. feet in mutation order Ex. PW1/D1 and why there is no challenge to it till date by any concern. When as per site plan Ex. P1 and Ex. P3, only an area of 816 sq. feet has come to the share of defendant No.2, but an area of 1254 sq. feet is mutated in his name, then why the plaintiff remained silent for almost 16 years and has not challenged this agreement and mutation order. The defendants have been able to establish that the original agreement arrived between the parties in 1993 vide Ex. P1 and Ex. P3 was not acted upon because of a dispute of common passage and subsequently, a new arrangement was agreed vide valuation report Ex. D3W3/2 which attained finality. In view of this fact, plaintiff has failed to prove both the issues, the onus of which was on him. Therefore, both the issues are decided against the plaintiff.
10. ISSUES NO.3 AND 4 :
Both the issues are interlinked and they are decided together. The onus of proving these issues was on the defendants 1 and 3 who have filed their counterclaim and have stated that plaintiff who is using the existing sewer line should be restrained from doing so and he should close his unlawful restaurant and the windows unlawfully opened towards the side of the property of the defendants and plaintiff should also be directed to construct his own sewer line. To prove their counterclaim, they have examined D3W1 who has categorically stated in his affidavit that the plaintiff has now opened windows towards the side of the property of the defendants on the first, second and the third floor and have also stated that the plaintiff has infringed upon the privacy rights of the defendants and he cannot do so as per law. It has also been stated that plaintiff has no right to open the said windows and therefore, plaintiff should be directed to close the same. The photographs of those windows have also been placed on record.
11. This witness was not at all cross examined on this aspect by the counsel for the plaintiff except of the suggestion that the windows are existing since the construction of the property. The witness has denied this suggestion and has subsequently stated that the windows were constructed after an year of the first floor being vacated by the bank which was on 02.07.98. There is no cross question to this aspect that windows were not constructed after vacating of the property by the tenant on the first floor. To prove his easementary rights, the onus was on the plaintiff to show that he has a right to open windows towards the portion coming to the share of the defendants. The onus was not on the defendants, but on the plaintiff to show his easementary rights. If a person claims that he has a right to passage, light or air from the property of any other, the onus of proving the easementary rights is on the person claiming the said right. The plaintiff was required to prove that he has this easementary right of light and air through windows open towards the property of the defendants by way of prescription, contract or passage of time. The affidavit of the plaintiff in this regard is silent.
12. As a mater of fact, not even a whisper has been made in the entire affidavit of the plaintiff that these windows are existing since the date of the construction of the property in 1975 or that he has an easementary right of light and air through these windows opened towards the property coming to the share of defendants. It has already been held while deciding issues No.1 and 2 that there was no common portion as shown brown in the site plan Ex. P1 and Ex. P3 and as claimed by the plaintiff in his suit. The mutation of the properties have been done for the areas vide assessment order Ex. PW1/D1 and in that order, there is no common passage. Once it is established that there is no common portion and now the parties to this suit have their exclusive shares, it was for the plaintiff to prove that he has an easementary right to open windows towards the portion coming to the share of the defendants, which he has failed to do so and therefore, defendants 1 and 3 have been able to prove both the issues, the onus of which was on them.
13. It is also important to note that plaintiff in his cross examination has admitted that now he has constructed his separate sewerage pipe line and water pipe line going through his own share and in view of this admission, Ld. Counsel for the defendants has admitted that their prayers in the counterclaim qua use of the existing sewer lines and construction of his own sewer line by the plaintiff as well as closing of the restaurant have become infructuous, subsequent to construction of sewer line by the plaintiff in his portion as well as by closing the restaurant. He has stated that now the only prayer left is that of closing illegal windows opened towards the properties of the defendants. Defendants have been able to prove that they are entitled to this relief. Both the issues are accordingly decided in favour of the defendants.
14. RELIEF :
In view of my findings given on all the issues, plaintiff is not entitled to any reliefs in the suit and the suit is dismissed with no order as to costs. The counterclaim of the defendants is decreed and a decree of mandatory injunction is passed in favour of the defendants and against the plaintiff and plaintiff is directed to close his windows opened towards the property of the defendants on the first, second and third floor in his property. No order as to costs even for the counterclaim. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (AMIT KUMAR)
on 06.05.2011 SCJ/RC(WEST)
TIS HAZARI COURTS,
DELHI