Delhi District Court
Dr. (Mrs). Daljeet Mudgil vs Anil Kumar Sabharwal on 10 October, 2018
IN THE COURT OF MS. VANDANA JAIN, LD. ADDITIONAL
DISTRICT JUDGE07, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
MORE THAN 16 YEARS OLD.
CS no. 687/2017
Dr. (Mrs). Daljeet Mudgil Vs Anil Kumar Sabharwal
In the matter of
Dr. (Mrs). Daljeet Maudgil
W/o Dr. Bhagwan Maudgil
Presently resident at
" Red Fern" Lock Avenue,
Maidenheed Berks, SL6 8 JW, London (UK)
Through her consituted attorneys
Mrs. Jaspreet Gogia, Advocate
R/o H6, Hauz Khas, New Delhi
Also at
192, Western Avenue , Sainik Farms, New Delhi
..................plaintiff
Versus
1.Sh. Anil Kumar Sabharwal S/o Late Sh. K.L.Sabharwal R/o 179A, Sainik Farms, New Delhi
2. Sh. Y.K.Sabharwal S/o Late Sh. K.L.Sabharwal R/o 21, Satya Niketan, New Delhi ..............Defendants Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 1/29 Date of institution of case : 19.08.2002 Date of Order : 10.10.2018 Suit for Permanent injunction.
1. The brief fact of the plaint as averred that the plaintiff alongwith her husband is absolute owner of the property built at land bearing plot no. 192, Western Avenue, Sainik Farms, New Delhi vide registered sale deed dated 12.01.1982 and also in the revenue records. The suit has been filed through the attorney Jaspreet Gogia. The plaintiff is residing in UK and is practicing medicine and she used to visit the property regularly and stay there as and when she visited India alongwith her husband.
2. The defendants are real brother and in possession of property built on land bearing no. 179A, Sainik Farm, New Delhi. The property of the defendants is adjoining to the property of the plaintiffs in such a manner that the rear back portion of the defendants property is contiguous to the right side boundary of the property of the plaintiffs. The site plan is also filed.
Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 2/29
3. At the time of the purchasing of the property in the year 1982, there existed a boundary wall dividing properties of the parties. The boundary wall was made up of single brick and 6 inch wide. The defendant no. 1 broke down and demolished a part of the said boundary wall to gain illegal entry and to encroach on to the property of the plaintiff.
4. It is averred that both the defendants have erected a partition wall in that property and one portion with built up structure had come to the share of defendant no. 1 and the other portion comprising of vacant land had fallen in the share of defendant no. 2. Defendant no. 2 had entered into an agreement to sell with some third person for selling his share in the property and the wall has been demolished to provide separate entry to that third person.
5. To provide that entry, defendant have made unlawful plan to demolish the boundary wall towards the property of the plaintiff and have fixed an iron gate with the help of concrete pillars on both sides of joint to the boundary wall. Various complaints were lodged Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 3/29 but of no avail. A writ petition was filed under Article 226 of Constitution of India for seeking directions to the police officials to initiate action against the defendants which were disposed off. In compliance of the orders passed by the Hon'ble High Court, the area DCP prepared inquiry report in which it was mentioned that the defendant had installed an iron gate in his property and had cut the barbed wire which was placed under the boundary wall. It was also recorded therein the the boundary wall have been raised by the defendant long time back and it is the rear wall of the property of the defendant. With regard to the private passage belonging to the plaintiff , it was recorded that Civil court be approached.
6. In order to protect the said property, plaintiff had erected the wall made of bamboos. Defendants made attempts to break the bamboo wall and the plaintiff decided to make a stronger wall with the help of iron angles and aluminum sheet but on 14.08.2002, defendant no. 1 started breaking the frame and the sheet and threatened the plaintiff through her attorney and again a writ petition was filed which was withdrawn with liberty to file a civil suit and therefore, Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 4/29 the present suit.
7. By way of this suit, the plaintiff has prayed for permanent and prohibitory injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, attorneys, employees etc from encroaching, making illegal entry, breaking or damaging the bamboo wall belonging to the plaintiffs shown in the site plan and or in any manner creating interference in the peaceful occupation and possession of the property of the plaintiff beaing no. 192, Western Avenue, Sainik Farms, New Delhi.
8. The written statement was jointly filed by the defendant no. 1 and 2.
In the written statement, the defendant had alleged that plaintiff has not come to the court with clean hands. The plot no. 192 referred in the plaint comprises of four plots known as 192, 192A, 192B and 192C and they have separate entrance gate. Plot no. 192 has one gate, plot no. 192 has two gates and a common gate is there for plot no. 192B and plot no. 192C. The plot no. 192 and 192A have a northern boundary wall made of brick and cement at a distance of 12 Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 5/29 to 13 feet from the southern boundary wall of plot no. 179A. There is a common public passage known as lane W9 earlier known as lane W7A running between the southern boundary wall of plot no. 191, 191A, 179A and the northern boundary wall of plot no. 192 and 192A on its southern side. The southern boundary wall of plot no. 179A is across this passage at a distance of 12 to 13 feet from the northern boundary wall of plot no. 192 and 192A. The southern boundary wall of plot no. 179A is a single brick boundary wall of about 4 ½" constructed by defendant in the year 1984. They have left a stretch of about 6 feet wide lane alongwith its southern boundary on its outer side for this passage at the time of constructing their boundary wall in the year 1984 at the instance of representatives of the plaintiff. Similar space was not left by the owner of plot no. 191 and 191A whose plots abuts main Ekta Marg. The southern boundary of plot no. 191/191A and plot no. 179A are not in a straight line with the southern boundary wall of plot no. 179A.
9. A site plan is also being filed by the defendant depicting everything Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 6/29 averred in the written statement and disputing the site plan filed by plaintiff.
10. The plaintiff has concealed the material facts from this court that while filing criminal writ petition no. 785 of 2002 and 655 of 2000. the case put forth by the plaintiff was entirely different from the case made out in the plaint. In the said petition, she had stated that " That the maternal aunt and uncle of the petitioner in the year 1988 sold half acre of land from the aforesaid property mesuring three acres to Sh. Surpreet Singh S/o Sh. Prit Pal Singh Suri and Smt. Narinder Suri wife of Sh. Pritpal Singh Suir and also sol another half acre of the aofresaid property to Mr.Keshav Rajinder Malik and Dr. (Mrs.) Parmod Malik. Prior to these sales and boundary wall of the aofresaid property existed at the spot since the year 1982 and there was no opning towards the aforesaid property sold, therefore, it was decided mutally between maternal aunt and uncle and Mr. Suri and Mr.Malik to leave a private passage from the property no. 192 so that they have an access to main road from their porperty. Therefore, in the year 1988 a private Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 7/29 passage was left by leaving 1/3rd of the land of the passage by both Mr.Malik and Mr. Suri and rest 2/3rd passage was left by maternal aunt and uncle of the petitioner for the personal access to both Mr. Malik and Mr. Suir to their respective purchased properties. Since then this private passage left jointly by the petitioner's maternal aunt and uncle and Mr. Malik and Mr. Suri from the aforesaid property is being used by them for their personal use and aceess and above all jointly owned by them and hence, it is a private passage and no other person has any concern with same. Above all, till date no body has any opening on the said passage. It is pertinent to mention here that the property was duly demarcated by Patwari at the time of the aforesaid purchase and then a private passage was left which is used only, by Mr. Malik and Mr. Suri and the petitoner's maternal aunt and uncle for their own purposes. It is pertinent to mention her that all the passages used by public are displayed and marked on every corner of Sainik Farms and even every by lane is also marked as L1, L2, L3 etc , but no private passage is marked on the site plans. The passage belonging to maternal aunt and uncle is also not shown and marked in the site Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 8/29 plans displayed.
That Mr. U.K.Sabharwal and his brother Mr. A.K.Sabharwal owners of the property hearing no. 179A having independent opening and pasage on the other side of mainroad. Their back boundary wall touches the property and passage as well belonging to the maternal aunt and uncvle of the petitioner. It came to the knowledge of the petitioner that Mr. Y.K.Sabharwal and his brother Mr.A.K.Saharwal have ....were trying to have an opening/access in the aforementioned private passage...".
In the said writ petition, the prayer was made to enable the plaintiff to built a boundary wall to enclose the passage in question which was dismissed. The facts mentioned in the said writ petition and in the present plaint are entirely different so as to get a favourable order which the plaintiff got by way of exparte injunction. The plaintiff had tried to place bamboo panel and construct a partition wall which was resisted by the defendant and the MCD officials had demolished the construction attempted to be made by the plaintiff but the bamboo panels were again loosly placed upon the southern boundary wall of the defendant before Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 9/29 bringing the Local Commissioner. The object of the suit is to prevent defendants from using the lane no W9.
11. The southern boundary wall of the defendant plot does not abut on the plot no. 192 of the plaintiff but abuts on the public passage known as Lane W9. The southern boundary wall of defendant is not the boundary wall between plot no. 179A and 192, 192A , 192B and 192C (commonly referred as plot no. 192 in the plaint) and Lane no. W9 runs between them. This Lane W9 has been deliberately omitted in the site plan filed by the plaintiff. The khasra number of the properties associated with the land as well as the boundary wall of different plots have not been disclosed in the plaint or in the site plan of the plaintiff.
12. It is stated that revenue record shows that there was no such passage in existance till the year 1982. defendant had an entry gate erected in southern wall since 1984 , however , they were using the entry gate at their northern boundary wall due to neglect, the gate at the southern boundary wall got damaged. In the 1999, defendant was Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 10/29 about to leave for Dubai and in order to secure his property, got a temporary wall erected in front of this entry with a view to repair and replace the gate after returning from Dubai. Thereafter, the necessary repair work on the gate was done and the temporary wall was removed. This gate opens upon the six feet wide stretch of land owned by the defendants which comprises of the land falling under khasra no. 9/20 and runs under the public passage known as lane W
9. It is also stated that the plaintiff started objected to the repairs through the attorney and all the complaints made by the plaintiff are false and fabricated as the husband of the attorney is a brother of A IPS officer. It is sated that the suit filed by the plaintiff is completely false and liable to be dismissed.
13. Replication to the written statement was filed wherein the factum of plot no. 192 comprising of four plots of land was admitted. It was stated that the entire plot bearing no. 192 measuring 3 acres falling in khasra no. 10/25, 9/21 and 9/22 was purchased by plaintiff and her husband in 1982. In the year 1988, plaintiff sold two pieces of land to S.S.Suri and K.R.Malik and the plots were given number as Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 11/29 192B and 192C respectively. The remaining land was also divided internally and were numbered as 192 and 192A. There is no difference on the merits of the suit on account of numbers given. The factum of there being common public passage known as lane W9 between plot 191, 191A and 179A on the northern side and the northern boundary wall of plot no. 192, 192A is denied. The factum of leaving 6 feet land by the defendant in the year 1984 is also denied. It is stated that in the records of the society, there is no public passage and lane comprised in plot no. 192 belong to the plaintiff. The main dispute is whether there is any common public passage on the land belonging to the plaintiff or not. It is averred that defendants in their written statement had admitted that they have never used the passage in the last 1516 years. All the other allegations made in the written statement have been denied and it is stated that the report prepared by Deputy Commissioner of Police in the year 2000 will clearly show that the land of plaintiff bearing plot no. 192 is situated adjoining and contiguous to the southern boundary wall of plot no. 179A. Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 12/29
14. A Local Commissioner was appointed on 09.09.2003 and he filed a report alongwith the photographs which mentioned that the bricks from the walls on either side of the passage were removed at random and the photographs of the bricks and random spots from where the bricks were removed were also got photographed. As per the report, the bricks taken out from the boundary wall of the defendants plot bore the number UBC4 and the bricks taken out from the boundary wall of plaintiff's plot bore the number RLS 88 RLS 89. The objections to the report of Local Commissioner were filed by the plaintiff which was disposed of by Hon'ble High Court of Delhi observing that interim application has already been disposed off.
15. On 08.08.2005, the interim application was decided in favour of plaintiff and thereafter, issues were framed on 07.11.2005.
(i) Whether the suit has been signed, verified and instituted by a duly authorised person? OPP
(ii) Whether the plaintiff has concealed any material fact while instituting the suit?OPD
(iii) Whether there was an existing boundary wall dividing the Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 13/29 properties of the plaintiff and defendants and from which date? If so, to what effect? OPP
(iv) Whether the defendant has a right to access to his property through the boundary wall? OPD.
(v) Relief.
16. Plaintiff examined PW1 Jaspreet Gogia herself as PW2 , PW3 Harbans Singh Grewal, President of association of Sainik Farm, PW4 Narender Suri and PW5 Dr. Promod Malik, both owners of plot no. 192B and 192C.
17. Defendant/ DW1 Anil Kumar Sabharwal examined himself as a witness.
18. I have heard the arguments and have perused the record carefully.
19. I shall deal with the issues one by one.
20. Issue no. 1: Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 14/29
(i) Whether the suit has been signed, verified and instituted by a duly authorised person? OPP Ld counsel for the defendant has argued that the suit has not been verified, signed and instituted by duly authorised person and through attorney Jaspreet Gogia was not authorised to institute the suit. He has argued that the bare perusal of the attorney Ex. PW1/1 reveals that the same has not been executed in accordance with the provisions of section 85 of the Evidence Act 1872. It is further argued that the suit is defective for the aforesaid reason and is liable to be dismissed. He has relied upon judgment no. "Birla Dlw Ltd Vs Prem Engineering Works on 01.08.1998", Electric Construction & ....Vs Jagjit Electronic Works on 03.04.1984, Manmohan Singh Dhaliwal Vs Gurbax Singh Arora & Ors on 02.11.2001 and Sudir Engineering Company Vs Nitco Roadways Ltd on 23 March 1995". However, on the other hand , Ld counsel for the plaintiff has argued that the first authority letter issued by the plaintiff in favour of the attorney has been retified by another authority letter Ex. PW1/2 which is valid. In this regard, he has relied upon Jugraj Singh Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 15/29 Vs Jaswant Singh wherein was observed that " It therefore follows that the second power of attorney was a valid document and it authorised Mr. Chawla to execute the document as well as to present it for registration. This being a document ratifying a former inconclusive act related back to the time when the first document was made and cured the illegality in the presentation for registration which has taken place".
21. Clearly, the first attorney executed in favour of the attorney holder Jaspreet Gogia has not been executed before the notary public at the place where the plaintiff was residing however, the fact remains that the second letter of attorney was filed which was executed in terms of section 85 of the Indian Evidence Act. The ratification of the previous authority letter by the plaintiff by executing a fresh Power of Attorney which was valid and effective under section 85 of the Indian Evidence Act removes the defect and hence, the second Power of Attorney becomes the valid document to which there can not be any challenge and is therefore, admissible. Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 16/29
22. As far as, judgments of Ld. Counsel for defendant is concerned, in none of the cases relied upon, the defective power of attorney were ratified done, hence, they are not applicable to facts in hand.
23. Now after the execution of the second Power of Attorney it can not be said that the suit was not signed and instituted by a duly authorised person. Moreover, during the cross of PW1 the plaintiff has herself appeared in person and has entered into the witness box which resolves the entire controversy. Moreover, judgment relied upon by Ld. Counsel for plaintiff i.e. Jugraj Singh Vs Jaswant Singh (supra) is squarely applicable, therefore, this issue is decided in favour of plaintiff and against the defendant.
24.Issue no 2, 3 and 4:
(ii) Whether the plaintiff has concealed any material fact while instituting the suit?OPD
(iii) Whether there was an existing boundary wall dividing the properties of the plaintiff and defendants and from which date? If so, to what effect? OPP Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 17/29
(iv) Whether the defendant has a right to access to his property through the boundary wall? OPD.
25. Issue no. 2, 3 and 4 being interrelated are taken up together: It is argued by Ld counsel for the defendant that the plaintiff has not come to the courts with clean hands. It is argued by both the counsels for the defendants that the plaintiff has not disclosed the facts in the plaint as averred by her in the writ petition filed before the Hon'ble High Court of Delhi and have not disclosed about the private passage in her property and all these facts have come for the first time in the replication and therefore, they are beyond pleadings and can not be taken into account. It is also argued that the person who has not come to the courts with clean hands is not entitled to the relief of equity by the court. In these regard, Ld counsel for the defendant have relied upon judgments Holy Health and Educational ...VS Delhi Development Authority on 24.05.1999, Seemax Construction (P) Ltd Vs State Bank of India", Arjan Dev V. Om Prakash, R.F.A no. 320 of 1991 D28.11.1991, Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 18/29 Harish Mansukhani Vs Ashok Jain 2009 (109) DRJ 126 (DB) (SN) on 19.11.2008, S.M.M.K.K.Thangal Vs Badagara Jamayath Palli Dharas Committee in Civil appeal no. 1864 of 2003 , D 19.08.2004, Singer India Ltd Vs Chander Mohan Chadha, civil appeal no. 387 with 388 of 2004, D13.08.2004 , Prakash Rattan Lal Vs Mankey Ram on 19.01.2010 in Cm (main) no. 976 of 2007 and C.M. Appl. no. 9885 of 2007".
26. Ld counsel for the plaintiff on the other hand has argued that the plot number 192 was referred as a whole including the units 192192A, 192B, 192C which are owned by some other persons however it is argued that this fact has no bearing on the case in hand as it would not affect the defendant at all and therefore, this can not be said to be concealment. It is further argued that the disputes had arisen on demolishing of the boundary wall between the properties of the parties and there was no requirement of mentioning the extraneous detail which were not required to decide the present case. It is also argued that it is only when the defendant filed the WS taking all the Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 19/29 objections of concealment that these facts were necessitated to be explained in the replication filed by the plaintiff to the WS of the defendant. It is argued that the simple case of the plaintiff is that on one side of the boundary wall, the back portion of the house of defendant exist which is the front side of the plaintiff's portion and the two portions of the plaintiff's property were sold to one Mr. Suri and Mr. Malik in the year 1988 and it is at that time that the private passage was carved out in order to give right of way to the subsequent purchaser to their property bearing number 192B and 192C.
27. I have heard the arguments and have perused the record carefully.
28. The plaintiff has filed the site plan Ex. PW1/3 which has been denied by the defendant and another site plan has been filed by the defendant. The basic facts of the case of plaintiff is that there was a boundary wall between the property of both the parties however, the defendant has averred that he had left six feet wide land on the back portion at the instance of representative of plaintiff and so the Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 20/29 plaintiff had left, and there is a lane W9 which is common public passage between the properties of both the parties which the defendant has every right to use.
29. It is also argued that the boundary wall existing on the site was constructed by the defendant, though the rear portion was not used for some years. DW1 during his cross examination has admitted the portion of his property is shown accurately in site plan Ex. PW1/3 filed by the plaintiff. However, in addition to that he voluntarily stated that there is a 6 feet passage out side this depiction ODZ5 Y2 in site plan in Ex. PW1/3 out side Z5 to Y2. During the cross examination itself, DW1 had admitted that he has no document to show that he had left 6 feet passage stating that it was an oral agreement. This oral agreement was not stated to be between the defendant and the plaintiff. It is averred that this agreement had been between the defendant and representative of the plaintiff. There is no evidence on record to show that person whom the defendant is claiming to be the representative of plaintiff was ever the employee of the plaintiff and had entered in said oral agreement. At this stage Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 21/29 itself, it is relevant to point out that at the asking of the defendant, the court had given option to the defendant to get plots measured but the same was not done. This lapse has not been explained during the final arguments. There is a road in front of property bearing 192, 191, 191A which is called Ekta Marg, which is an admitted fact. It is admitted by the defendant DW1 in his cross examination that the passage in question starts from the gate of 191A and ends at 192 C. It is also admitted that there are other properties also behind the defendants and plaintiff's property. The perusal of the site plan Ex. PW1/3 reveals that the property bearing no. 191A is adjoining the property bearing plot no. 192. Therefore, it is admitted that the alleged passage starts from 192 and ends at 192C. Though the defendant has set up a case of separate lane W9 and has filed photographs showing that the houses in the said lane bears no. W9 attempting to show the existence of lane W9, but the photographs bearing no. W9 can not be said to be a conclusive proof of existance of public passage by the name of W9, which is contrary to evidence on record. The admission that the passage starts from191A and ends at 192C itself explains everything. No other Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 22/29 resident in the other properties had claimed that this is a public passage. Defendant have failed to bring any such witness. Merely stating the site plan filed by plaintiff is incorrect is inconsequential as defendant has admitted the mojority of the same during his cross examination as already discussed, whereas on the other hand, he has failed to prove the site plan filed by him.
30. It is pertinent to note that each one of the witness who has come to depose before this court had admitted the fact that the places where the property is situated was a agricultural land and the properties were not constructed as per lay out sanctioned by the authorities. The portion of the plot were sold to different parties without having access to the said plot. Internal arrangements were made which has come during the evidence of the parties that at the time of purchasing the property, the electricity polls ,MTNL wires were in existance in the portion of the property purchased. The plaintiff during her cross examination has admitted that there were telephone poles in existance, even when the houses were not constructed. It is matter of common knowledge that this place being the agricultural Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 23/29 land, no ploting was done by the authority. The owner of the properties carved out their own ways. The mere existence of telephone poles or the electricity poles on the passage, can not be a conclusive proof of it being a public passage in view of the factual situation explained above so the argument of Ld counsel for defendant that the telephone poles exists in the property of plaintiff which shows that it is a public passage is not tenable at all.
31. As far as the concealment is concerned, undoubtedly the plaintiff ought to have disclosed that the portion of the property was also sold to two other purchasers and a right of way was given to them out of her own property, however, even if this fact is not mentioned in the plaint, it does not materially affect pleadings of the parties. The defendant has raised the defence of existance the lane W9 i.e. public passage between the properties of defendant and the plaintiff and that is why, this explanation has come, which has not changed the character of the pleadings given in the plaint . It can only be seen as a explaination to the defence of the defendant. As far as the fact mentioned in the writ petition are concerned, it is the case of the Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 24/29 defendants themselves that they were not the party to this writ petition so the different pleadings of the writ petition and that given in the plaint of present suit are not fatal to the plaintiff. Even otherwise, the facts brought out in the replication are verbatim same which were set out in the writ petition. It is only explained in the replication that the public passage which the defendant had claimed is not a public passage and no such W9 lane exist and this passage was carved out by the plaintiff out of her own property. Therefore, there is no concealment of fact on the part of the plaintiff. It could not hve been comprehended by the plaintiff as to what defence the defendants would be taking in their WS , therefore, it can not be said to be concealment. Though the ratio of the judgments on concealment relied upon by the defendants are not disputed but the said judgment are not applicable to the facts of the case in hand as there is no concealment. The word "private passage" finds mention in para no. 10 of the plaint.
32. Since defendant no.1 has admitted that the passage in dispute starts from 192 and goes till 192C only, it can not by any stretch of Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 25/29 imgination be considered as a public passage. Merely putting numbers by the association, would not give any benefit to the defendant. This is the suit for injunction only whereby the title of the parties can not be decided. The objection was taken by the defendant and it was for the defendant to prove by calling of witness either from the property i.e. 191A or from the other properties after the property of the defendant that any such lane existed and they were also using the same. The evidence of PW3is not trustworthy for the reason that the site plan which he has filed by him i.e. Ex. PW1/17 depicts wrong location of the properties as per as the case of both the parties, therefore, he can not be believed and his testimony in its entirety is discarded.
33.Defendant have though filed site plan showing lane no. 9 however they have failed to prove the same by putting it to the plaintiff or her attorney and to prove each and every location of the properties.
34. The defendant in the WS has admitted that they was a separate entry for them to enter their property and they were not using this Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 26/29 gate which was there at the backside of the property at any time. Local Commissioner was also appointed in this case which shows that in 1984 the boundary wall behind which the house of the defendant is located contains the bricks of 1984 where as the internal boundary wall of the plaintiff contains the brick of 1988 1989. This report of Court Commissioner also fortifies the case of the plaintiff that the internal boundary wall of the plaintiff was constructed in the year 198889 where the portion of the property was sold to Mr. Suri and Mr. Malik by the plaintiff. It is proved on the scale of preponderance of probabliites that the defendants had no right to access their property through the boundary wall. He has miserably failed to prove that he had left 6 feet passage out from his property to make a public lane. Merely pleading the same would not suffice. It is proved that there was an existing boundary wall dividing the property of the plaintiff from 1984 as the bricks contains this year however the fact remains that this suit is not for deciding the title.
35. The plaintiff on the scale of equity, has been able to make out a Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 27/29 case. Ld counsel for the defendants has also taken the objection that plaintiff should have filed the suit for declaration in view of Anathula Sudhakar Vs P. Buchi Ready (dead) by Lrs and Ors in Appeal (civil no. 6191 of 2001 on 25.03.2008 but this argument is totally misconceived, as the plaintiff only wishes to get a restraint order and the defence of public passage was raised by defendant and onus to prove the same was upon the defendants only which they have failed to discharge. A simplicitor suit for injunction can not be forced to be changed into a suit for declaration in view of defence raised by defendant. The simplicitor suit for injunction lies.
36. The defendant has failed to show that there was any public passage or lane W9. Therefore, issue no. 2 to 4 are decided in favour of plaintiff.
37. Relief.
38. Suit of the plaintiff is decreed. Defendant and their agents, attorneys, employees etc are restrained from encroaching, making illegal entry, breaking or damaging the boundary wall leading to the property of the plaintiff (private passage) beaing no. 192, Western Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 28/29 Avenue, Sainik Farms, New Delhi, as shown in site plan Ex. PW1/3.
39. Decreesheet be prepared accordingly.
40. File be consigned to record room. Digitally signed by VANDANA JAIN Announced in the open court VANDANA Date:
JAIN 2018.10.16
on 10.10.2018 10:25:38
+0500
(VANDANA JAIN)
ADDITIONAL DISTRICT JUDGE07/
SOUTH EAST DISTRICT/SAKET COURTS/
NEW DELHI/10.10.2018
Dr. (Mrs) Daljeet Maudgil Vs Anil Kumar Sabharwal 29/29