Delhi District Court
Sh. V.K. Vadhera S/O Late Sh. Laxmi ... vs Sh. S.B. Aggarwal on 23 April, 2013
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 105/10
Unique ID No.
Sh. V.K. Vadhera S/o Late Sh. Laxmi Narain,
R/o H. No. 96, Gautam Nagar,
New Delhi.
.............Plaintiff
Versus
1. Sh. S.B. Aggarwal,
R/o H. No. 95A/1,
Gautam Nagar, New Delhi.
2. Smt. Gayatri Devi W/o Sh. S.B. Aggarwal,
R/o H. No. 95A/1,
Gautam Nagar, New Delhi.
.............Defendants
Date of filing : 16.01.1990
Date on which order has been reserved: 22.03.2013
Date of pronouncement of judgment : 23.04.2013
JUDGMENT
1. Plaintiff has filed the present suit to pass a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants, their agents, employees, associates and the persons working on their behalf from Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 1/26 carrying out any construction in property bearing No. 95A/1, Gautam Nagar, New Delhi, particularly opening of the windows towards the side of the house of the plaintiff bearing No. 96, Gautam Nagar, New Delhi with costs of the suit.
2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiff that the plaintiff is owner of the property bearing No. 96, Gautam Nagar, New Delhi (hereinafter referred the suit property) which property he has acquired after the death of Dr. Jamila Mitra, who was the aunt of the plaintiff and she was settled abroad and who also left behind a WILL by which she bequeathed the house in question in favour of the plaintiff and the said WILL was duly endorsed by the High Commission of India at London and by means of that only the plaintiff has become the owner of the suit property and has all the rights, title or interest in the suit property and the probate of the said WILL has also been given in favur of the plaintiff in England. The plaintiff has been residing in suit property for the last about six years. Sh. S.B. Aggarwal, defendant No. 1 throughout represented himself to be the owner of the H. No. 95A/1, Gautam Nagar, New Delhi which adjoins the aforesaid house of the plaintiff. The defendant No. 1 has also been carrying out illegal constructions in his house. However, Smt. Gayatri Devi, defendant No. 2 is the owner of the said house which adjoins the house of the plaintiff. The plaintiff has now also reason to believe that defendant No. 1 has been carrying on hereinafter complained of illegal construction with the consent and on behalf of defendant No. 2 who is his wife also.
The plaintiff has been enjoying the suit property without any interruption and hindrance from any corner and has been enjoying the peaceful possession of the Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 2/26 same. The plaintiff has also been enjoying the natural light and air in the suit property without any interruption and his privacy of the house is not disturbed and he has been enjoing the suit property peacefully. Now a week ago, the defendants started making construction in his house on the second floor in an unauthorized manner and the said construction is illegal and the defendants have taken law into his own hands. While raising the said construction, the defendants have also started putting the windows in the portion facing towards the house of the plaintiff which will open in the premises of the plaintiff thereby causing an irreparable loss and injury and hindrance to the plaintiff and the said act of the defendants will also snatch the privacy of the plaintiff regards the use of the suit property. The plaintiff requested the defendants not to do the aforesaid illegal act but the defendants failed to listed to the genuine and legal request of the plaintiff. The defendants are taking the plea that there is already opening on the first floor in the said house belonging to him, therefore, he is in a position to make the same also on the second floor. On the first floor, the said opening was got done by the defendants in the absence of the original owner i.e the aunt of the plaintiff when she was in abroad and was not in a position to take the matter of the appropriate level for stopping the defendants from taking the law into his own hand thereby encroaching upon the privacy of the plaintiff aunt who was the initial owner of the suit property. The plaintiff ha also lodged a police report on 14.01.1990. Hence, the present suit has been filed for the abvoe mentioned relief.
3. Defendant's Version: In the WS, the defendants have denied all the claims of the plaintiff and Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 3/26 have taken the following stands:
(a) That the suit of the plaintiff is not maintainable and is infructous. The window of the ground floor, first floor and second floor of H. No. 95A/1 on the West side and of 96A on the East side are already existing since long. The said house is already four storyed. The said windows are already existing and were opened long ago by the owner of the said properties. The alleged property did not belong to the defendant No. 1 and therefore, the question of making any opening do not arise by the defendant No. 1. On the west side of H. No. 95A/1 is 12' Gali and H. No. 96/A of Sardar Suminder Singh. On both the sides of the gali the windows of the said house are old existing. The house No. 95A/1 is three stroyed, while the H. No. 96A is four storyed house. The plaintiff is mischievously and illegally under the garb of the present suit intends to trespass and include 12' gali into his alleged H. No. 96. The 12' Gali does not form part of the plaintiff's house. Similar gali of 12' is on the north side of the suit property. Such Galies of 12' in Gautam Nagar, New Delhi serves as service lanes also. The plaintiff has got no rights on any portion of the said 12' service lanes/galies.
(b) That there is no house existing of the plaintiff i.e suit property either on the east of 96A or West of 95A/1. Therefore, the prayer made in the suit is incapable of being granted. The suit property does not adjoin the house No. 95A/1.
(c) That the plaintiff has got no locus standi to file the present suit. The plaintiff is neither the owner nor the occupant of the gali/street in between 95A/1 and 96A, Gautam Nagar, new Delhi49. The plaintiff is not owner of the suit property and has not acquired the same after the death of Dr. Jamila Mitra. Neither the alleged WILL Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 4/26 is in favour of the plaintiff nor the said property has been bequeathed in favour of the plaintiff. The alleged WILL has not been endorsed by the High Commissioner of India at London. The plaintiff has got no rights, title or interest in the suit property. The alleged WILL has not been probate in favour of the plaintiff in England. The alleged WILL is in favour of Dr. Sushil Kumar and Jamila Mitra Charitable Trust and is not in favour of any individual. The plaintiff was the attorney of the deceased which ended with the death of Dr. Jamila Mitra. The plaintiff has not become the owner of the said property. Once a charitable trust is created it remains a charitable trust and no property of the trust can be taken out of the corpus of the said charitable trust.
(d) That the suit of the plaintiff is bad for non joinder of necessary parties and for misjoinder of unnecessary parties. The plot No. 95 consists of many buildings/house bearing No. 95A/1, 95A, 95B, 95C and 95D and others. The defendant No. 1 is not the owner of any one of these properties. The plaintiff has not impleaded the owners of these properties and therefore, the suit is liable to be dismissed.
(e) That the suit of the plaintiff is hopelessly time barred and suffers from unexplained laches and delay. The defendant No. 2 has been implead U/o 1 R 10 CPC vidd order dated 02.06.1998 in the amended plaint. The suit is thus barred by time under the provisions of Indian Limitation Act, 1963 against the defendant No. 2.
(f) That no illegal construction have been carried out in H. No. 95A/1 by the defendants. The averments made are absolutely vague and indefinite. The nature and extent of the alleged natural light, air and privacy has not been explained. The defendants have neither started making any construction in an unauthorized manner nor Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 5/26 the alleged construction is in any way illegal. The defendants did not take law into his hands. The suit of the plaintiff is without any cause of action. No portion of the house of the defendants is facing towards the alleged suit property. Neither any hindrance is caused to the plaintiff nor any privacy regarding the use of the alleged house is likely to be snatched in any manner. The defendants did not threaten the plaintiff for anything.
4. By way of replication the plaintiff has denied all the claims of the defendants stating that although, the windows on the ground floor is taken out at the time when the aunt of plaintiff was not in India, who was the actual and original owner of the suit property but now on the first floor and on the second floor, the windows have been placed even after filing of the present suit and after the grant of injunction order by this court. The owner of the H. No. 96A, namely Sh. Samunder Singh has opened windows with the permission of the plaintiff on terms and conditions stipulated in agreements dated 13.08.1989 and 09.02.1999. The windows on the ground floor were put by the defendants in the absence only, the defendants succeeded in putting the windows on the ground floor of the house. The defendants have encroached upon the rights of the plaintiff. It is denied that on the west side of the H. No. 95A/1, is 12' gali and H. No. 96A of Sardar Samunder Singh. The alleged gali is passage of the plaintiff which is under his exclusive possession, and under his lock and key. The LC appointed by this curt has made a similar report in this regard. The plaintiff is the owner of this passage malafidely alleged as gali by the defendants. There is a similar gali of 12' on the north side of the plot No. 96. It is denied that the alleged galies are service lanes.
5. On the basis of pleading and arguments of the parties, vide order dated Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 6/26 02.08.1999, the following issued have been framed: (I) Whether the suit of the plaintiff is maintainable in view of the preliminary objection No. 1?OPP.
(II) Whether the plaintiff has not any locus standi to file the present suit?OPD. (III) Whether the plaintiff is entitled to the relief of permanent injunction as claimed in the plaint?OPP.
(IV) Relief.
6. In, PE plaintiff has examined himself as PW1, Sh. S.D. Sharma as PW2 and Sh. Suresh Kumar as PW3. Plaintiff has relied upon the following documents:
(i) Copy of commission proceeding is Ex. PW1/1.
(ii) The report of Ld. Local Commissioner is mark A.
(iii) Copy of probate of the WILL from the High Court of Justice at Oxford U.K
on 12.07.1989 is Ex. PW1/2 (OSR).
(iv) Copy of probate of the WILL of Mrs. Jamila Mitra from the High Court of
Delhi is Ex. PW1/2 (OSR).
(v) The certified copy of the complaint filed by the defendant No. 2 against
plaintiff is Ex. PW1/4.
(vi) Copy of the complaint dated 27.01.1990 to the SHO, PS Gulmohar Park is
Ex. PW1/5.
(vii) Copy of the complaint dated 28.01.1990 to the SHO, PS Gulmohar Park is
Ex. PW1/6.
Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 7/26
(viii) Copy of the complaint dated 28.01.1990 at 08.00 PM to the SHO, PS
Gulmohar Park is Ex. PW1/7.
(ix) Copy of the complaint filed with the Zonal Engineer MCD, Green Park is
Ex. PW1/8.
(x) Copy of the complaint dated 05.02.1990 filed with the Zonal Engineer
MCD, Green Park is Ex. PW1/8.
(xi) Copy of the complaint dated 02.04.1990 to the SHO, PS Gulmohar Park is
Ex. PW1/9.
(xii) Copy of the complaint dated 17.04.1990 to the Commissioner of MCD and
Vigilance Department is Ex. PW1/11. Postal receipts are Ex. PW1/12 & Ex. PW1/13 and AD card is Ex. PW1/14.
(xiii) Copy of the complaint dated 21.04.1990 filed with the Zonal Engineer MCD, Green Park is Ex. PW1/15.
(xiv) Certified copy of the show cause notice is Ex. PW2/1.
(xv) Certified copy of demolition notice is Ex. PW2/2. (xvi) Certified copy of agreement to sell in favour of Gayatri Devi is Ex. PW3/1. (xvii) Certified copy of the WILL filed by Gayatri Devi is Ex. PW3/2. (xviii) Certified copy of receipt filed by Gayatri Devi is Ex. PW3/3. (xix) Certified copy of SPA is Ex. PW3/4. (xx) Indemnity bond is Ex. PW3/5. (xxi) Affidavit is Ex. PW3/6. Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 8/26 (xxii) GPA is Ex. PW3/7. (xxiii) Certified copy of notice issued by MCD U/sec 126 of DMC Act is Ex. PW3/8. (xxiv) Assessment order dated 15.01.1997 is Ex. PW3/9. (xxv) Inspection form is Ex. PW3/10.
7. In defence evidence, the defendant has examined himself as DW1.
8. During court proceedings, defendant No. 2 has expired and vide order dated 14.10.2005 the suit has been abated against defendant No. 2.
9. My Issue Wise Findings: (A) For the sake of convenience, the issue No. 3 is discussed first. Issue No. 3
Whether the plaintiff is entitled to the relief of permanent injunction as claimed in the plaint?OPP.
(i) The onus to prove this issue is upon the plaintiff. To prove this issue, the plaintiff has examined himself as PW1 and during examination in chief he has reasserted the facts stated in the plaint and has also deposed that the defendants have disobeyed the interim order dated 25.01.1990.
PW1 was duly cross examined and during cross examination he has deposed that "..............It is wrong that suit the property is not owned by me. It is correct that prior to the aforesaid WILL and probate Ex. PW1/2, I Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 9/26 was not the owner of the suit property. Prior to me the suit property was Dr. Mrs. Zamila Mitra i.e my aunt and she died on 21.05.1988. I do not know as to since when defendants are residing in the property bearing No. 95A Gautam Nagar, New Delhi. Vol. They were residing over there before I came to my property No. 96. I started in residing in property No. 96 since 03.06.1983 approximately but he further states that he is not in possession of any document to show his possession in the property since when. I have got my ration card. I have my passport issued at 96, Gautam Nagar, New Delhi as I am a frequent visitor in various countries out of India and so the present passport in my possession is a new one and the earlier ¾ passports have since been cancelled. I have not brought the said passport in the court. It is correct that a passport is not renewed after 5 years. It is wrong that as I have not been residing at the suit property so I did not produce/either my ration card or my passport on record. I am not in possession of any sanction plan of the suit property. Vol. The house was constructed in 1952 and their did not use to be any sanctioning of the plan at that time. It is correct that in all the room as they stand constructed in 96 Gautam Nagar, as of today all natural light is available. In suit property their exist four stories. At this stage, witness has been shown photographs mark K and witness had admits that building shown in as No. 95A of the defendants and property shown as Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 10/26 Y is property No. 96A. The photographs is Ex. PW1/D1. When I occupy property No. 96, only some of the opening as shown in Ex. PW1/D1 existed in the property Mark X and Y. In property No. 95A there were opening on the first floor and in the property No. 96A there were some opening on the first floor and some on the second floor. I by see Ex. PW1/D1 can not be pointed the said earlier openings. At the time of visit of Ld. LC a number of openings and which also appears in Ex. PW1/D1 were existing but I do not remember their number specifically but in property No. 96A some of the opening as shown in the aforesaid photographs in 96A were not there as construction took over there later on. The said construction in property No. 96A took place during the pendency of the present suit. The construction undertaken in property no. 96A has not affected natural air and light to my property. The construction and openings in property no. 96A also does not affects the privacy of any portion of my house. Witness again said that the said windows in property No. 96A as per understanding entered into between myself and the owner of the property are kept close and in case they are ever opened them my privacy will certainly by affected. It is correct that the leaves of all the windows etc in property No. 96A opens towards inside the buildings and their exist grills over there. Same is the position with the window of the house of the defendants though in some of the window their exist Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 11/26 no grills. Witness further states that there however exist certain big openings in the property of defendants which do not exist any door or grill. The aforesaid opening which I am referring is the one which runs from ground floor to the top or from the middle of the property to the top in the property of the defendants. The said opening are having some iron bars to a certain heights for safety purposes. I never applied for obtaining certified copy of any of the plan mark A to C and D as mentioned in my examination in chief to any department. It is correct that Mark A has not obtained by me from the office of Patwari. I am not aware as to whether plan mark D is in accordance with the plan of Gautam Nagar, New Delhi or Govt or not. I stated the construction undertaken by the defendants to be unauthorized after getting information in this regard by MCD. MCD has never given me in writing any communication stating that the construction undertaken by the defendants is unauthorized. The northern side wall of the property of the defendants exist towards my property. Similarly the northern wall of property No. 96A also exist towards my property. It is correct that there does not exist any window/opening in the northern side of the property of plaintiff. However, their exist certain windows and openings in the northern side wall of property no. 96A. On the northern side of my property their exist a by lane. It is correct that their exist a gate in my property opening towards the aforesaid by Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 12/26 lane. It is correct that the said by lane is 20 feet wide. It is wrong that defendants merely took permissible repair in their property or that they never under took any construction activity over there, clandestinely/unauthorizedly. It is correct that as of today all the portions of the property of defendants and that of 96A stand fully occupied..................."
(ii) Further, plaintiff has examined Sh. S.D. Sharma as PW2 who has proved the certified copy of the show cause notice is Ex. PW2/1 and the certified copy of the demolition notice is Ex. PW2/2. I am not aware, as to whether besides, Ex. PW2/1 and Ex. PW2/2 any other notices, were also issued in respect of the suit property or not. As per the record, available, no demolition action was carried out, pursuant to document, mark B. I am not aware as to why, such an action was not carried out. I have not brought, any such file, wherein, proceedings, leading to the issuance of Mark B, might be recorded.
PW2 was duly cross examined and during cross examination, PW2 deposed that ".............I have brought whatever recorded was available in the MCD, I have brought. I do not know whether any plan was got sanctioned or not in respect of the property No. 96, Gautam Nagar, New Delhi. I do not know about the locations of the property No. 96, 95, 95A/1, 95A/2, 95A, 95B and 95C, Gautam Nagar, New Delhi.............."
(iii) Further, plaintiff has examined Sh. Suresh Kumar as PW3 and he was Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 13/26 duly cross examined and during cross examination, PW3 has deposed that "...............It is correct that the originals of the Ex. PW1/1 to Ex. PW1/9 are not in the record brought by me. I can not identify the signatures affixed at point A1 to A14 on the documents Ex. PW3/1 to Ex. PW3/9 respectively. I have no personal knowledge with the facts of the present case and I am deposing on the basis of the record brought today by me................"
(iv) On the other hand, defendants have examined Sh. S.B. Aggarwal (defendant No. 1) as DW1 and during examination in chief by way of affidavit he has reasserted the facts mentioned in WS. DW1 was duly cross examined and during cross examination, he has deposed that "..............It is incorrect to suggest that the plaintiff along with his family is residing in the suit property. Vol. He is residing along with his family in N14, South Extension Part1. I can not tell the name of the person who is residing in the suit property. I have never made any inquiry regarding the persons living in the suit property. It is correct that the suit property originally belongs to Mrs. Jamila Mitra W/o Dr. S.K. Mitra. I know that Mrs. Jamila Mitra had executed a WILL during her life time but it is incorrect to suggest that she bequeath the suit property to the plaintiff. It is correct that a probate of the WILL of Mrs. Jamila Mitra has been granted but it is incorrect that the said probate has been granted from the Hon'ble High Court of Delhi in favour of the plaintiff. Vol. Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 14/26 Probate has been granted in favour of Sh. S.K. Mitra and Jamila Mitra Charitable Trust India. Mrs. Gayatri Aggarwal is the owner of said property bearing No. 95A/1 who is my wife. It is correct that she is also residing with me in the said property. It is correct that legal notice Ex. DW1/P1 was received by me. Mark DW1/Q and R do not bear my signatures or signatures of any members of my family. I have seen the legal notice Ex. DW1/P1 at my house and thats how I got the receipt of the same. I can not admit or deny that his notice has also been served upon my wife. It is correct that Ex. DW1/P2 bears signatures of my wife. It is incorrect to suggest that on the western side of my house property of Mrs. J.M. Mitra is situated. There is a 12 feet wide passage on the western side of property bearing No. 95A/, Gautam Nagar, New Delhi. I do not know as to who is the owner of the said passage but to the best of my knowledge it is meant for common use for all. It is correct that there is an iron gate installed at the beginning of the passage. I do not know whether said gate is locked and unlocked by the plaintiff. It is also incorrect that to suggest that the plaintiff's car is parked in the said passage. It is correct that there is a road passing in front of the said iron gate as well as the property bearing No. 95A/1. It is correct that in the north side of the property bearing No. 95A/1 there is property of Mrs. J.M. Mitra. I do not know whether the said passage in the western side of the property belongs to Mrs. J.M. Mitra or not. It is wrong to suggest that at the time of its Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 15/26 purchase the property in which I am living presently was constructed only up to the three stores. I had not got any plan sanctioned in respect of the property in which I am residing. My wife had gone to the MCD office along with site plan but MCD people told her that the area did not fall in their jurisdiction. I have not raised any construction in the property 95A/1. However, after its purchase my wife had raised some construction in the year 1981 itself and not thereafter. It is incorrect to suggest that I have raised any construction on behalf of my wife in January, 1990.
.............Photographs Ex. DW1/P3 to Ex. DW1/P7 are correctly depicting and property No. 95A/1. It is however, incorrect that remaining photographs mark H1 to H7 also pertained to the same property. It is incorrect to suggest that me and my family members throw garbage from the same windows and ventilators on the wester side of the property in which I am residing and also disturb the privacy of the plaintiff. It is wrong to suggest that the windows and ventilators have been opened in the wester side by my wife in an illegal and unauthorized manner despite protest of the plaintiff for which she had no right at all. I do not know about understanding between the plaintiff and Sh. Samunder Singh.............
(v) Arguments heard. Record perused. (vi) In the present suit, the plaintiff has filed the suit for permanent injunction
on the ground that the plaintiff is owner of the property bearing No. 96, Gautam Nagar, Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 16/26 New Delhi and the defendant No. 2 is owner of adjoining property of the plaintiff and defendant No. 1 who is husband of the defendant No. 2 has raised illegal construction over the property and by the said illegal and unauthorized construction, the defendants are putting windows in the portion facing towards the house of the plaintiff which will open in the premises of the plaintiff and thereby will cause irreparable loss and injury to the plaintiff and will also affect the privacy of the plaintiff.
Defendants have objected to the ownership of the plaintiff but it admitted fact between the parties that previous owner of the suit property i.e Dr. Jamila Mitra has executed a WILL in favour of the plaintiff and plaintiff has also obtained a probate regarding the said WILL and thus it is clear that by virtue of the said probate certificate (Ex. PW1/2 and Ex. PW1/3) rights over the suit property have been conferred to the plaintiff but there is no requirement to go into the question of ownership or in other words, court is not required to adjudicate the issue whether by virtue of said WILL, ownership rights have been bequeathed in favour of the plaintiff and it is specific that by virtue of the said WILL, the plaintiff has been appointed as an administrators of the suit property. The plaintiff has filed the simplicitor suit for injunction and it is well settled principle that a possessor even without title, can have certain rights as to the rights of natural air and light and right of the privacy over the property. Further, in the present suit, it is not title over the immovable property which is an issue. In other words it is not a case where both the parties are seeking title or ownership rights over the same property. Therefore, there is no requirement to adjudicate upon the issue of ownership when the same is not an issue.
Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 17/26
Further, as per the defendants, the plaintiff is not residing in the suit property while the plaintiff has stated during examination in chief by way of affidavit that he is residing in the suit property and his testimony has stood up to the test of cross examination and therefore, it can be said that plaintiff has been able to show that he is in possession of the property.
(vii) During court proceedings, vide order dated 19.01.1990, Ld. LC was appointed and Ld. LC has filed his report on 23.01.1990 and in his report which is mark A, the Ld. LC has reported that Q. What is the width of the open passage/gali between the houses of the parties?
A. The width of the open passage/gali between the houses of the parties is 11 ft 2 inches plus 9'' boundary wall of the plaintiff on the left hand side after entering the open passage/gali i.e on the western side adjoining the house No. 96A.
Q. Whether there is any construction, on the said gali, which belongs to the plaintiff and which may show that the gali/open passage is in exclusive use of the plaintiff? He will also point out as to whether the gali is in common user? A. There is no construction of the plaintiff in the open passage of the gali. The plaintiff has got an iron gate which is divided into two parts at the entrance of the house which was locked, and opened by the plaintiff. There are two concrete pillars on either side of the house at the entrance where the iron gate is fixed. On the left hand side the number 96 is made out in cement. On either side of the opens passage/gali i.e touching the boundary walls of the defendant on the Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 18/26 eastern side and that of house No. 96A on the western side, the plaintiff has got flower and plants beds. The plaintiff also parks his car inside, the open passage/gali and locks if from inside. As per my observations and construction made at site the open passage/gali is not the common user and is closed from inside as the same is exclusively in the use and occupation of the plaintiff and no other person other than the plaintiff as a matter of right can pass throw that open passage/gali.
In shot the open passage/gali is a part and parcel of the property of the plaintiff. However, there is another gate in the property of the plaintiff, which opens on the northern side of the plaintiff's property and can be said to be a door of the service lane. The main entrance of the plaintiff is from the southern side where the iron gate on the two pillars is fixed/installed. This open passage/gali is left by the plaintiff only for purposes of passage for his personal and private use for reaching his property.
Q. Whether there are only window openings on the second floor of the house of the defendants or whether there are proper windows already in existence at the second floor of the said house and further to report as to which side these windows open?
A. On the Eastern side of the wall of the defendant's house there are three windows of the size of 4'X4' each having iron grills fixed on them. Besides this there is another frame of iron fixed on the said windows which h as got doors with glasses which open inside the premises of the defendants. All these three windows are already constructed and in existence. These windows are on the first floor of the defendant's property. Similarly there are three windows on the 2nd Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 19/26 floor just above the windows of the first floor and also of the same size. The first two windows after entering are under construction. Only the iron frame has been put on them. The third window in the last on the 2nd floor is already constructed in the same position as on the first floor. There is opening on the ground floor of the defendant's house towards the open passage/gali of the side of 88'' in length and 32'' in lt which is fixed with the help of iron bars. Except this opening on the ground floor, there is no other opening of the defendant's house towards the open passage/gali i.e either the ventilators, windows doors etc of any type. All the windows either on the first floor or on the second floor of the defendant's house open towards inside his rooms and premises. None of the doors or the windows of the defendant's house either on the first floor or on the second floor open towards the open passage/gali of the plaintiff's property. The construction on the 2nd floor of defendant's house was in progress. When I reached, the work w as going on. The first and second floors, balconies of the defendant's house as well as the open space on the ground floor in the front side portion of the defendant's house also have iron rods/bars opening towards the open passage/gali of plaintiff's property. The length of the iron bars opening on the ground floor infront portions of defendant's house towards the open passage/gali of plaintiff's house is two meters 10 cms in length..........."
Thus, even the report of Ld. LC stated that plaintiff is in possession of the suit property and therefor as a possessor the plaintiff can claim the rights of privacy as well as rights of natural air or light. The defendants have raised objections as to the mode of proof of report of Ld. LC that the report of Ld. LC which is marked as A has Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 20/26 not been proved properly by calling Ld. LC. As far as this plea is concerned, it is settled principle that the LC appointed by the court is considered to be an officer of the court and therefore, a presumption of genuineness is always attached with the report of Ld. LC unless the same is discarded on the basis of objections of any of the parties. In the present suit, none of the parties has objected to the report of Ld. LC, therefore, there is no bar to rely upon the report of Ld. LC and the same may be considered as true and proved. Now, the onus is upon the plaintiff to prove that by the said construction of the defendants, the natural air and light of the suit property as well as the rights of the privacy of the plaintiff are adversely affected. As far as the plea of the plaintiff regarding illegal construction in view of the report of MCD is concerned, in the present suit, plaintiff has not sought any relief regarding removal of illegal construction nor MCD has been made a party nor violation of rules and regulations of MCD has been averred by the plaintiff, therefore, the contentions and evidence of the plaintiff as to the illegal construction in view of report of MCD are irrelevant to the issue in hands as in the present suit, the only issue is whether the construction raised by the defendants are affecting the light of the plaintiff or not.
(viii) Further, from perusal of the report of Ld. LC, it is clear that there is an open passage between the houses of the parties i.e the house of the defendants and property No. 96A/1, Gautam Nagar, New Delhi and there is no construction of the plaintiff in the open passage of gali which the claims to be his own property. The plaintiff has not filed any proof to show that the said passage mentioned in the report of Ld. LC as well as shown in photograph Ex. PW1/D1 is a part and parcel of the property No. 96, Gautam Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 21/26 Nagar, New Delhi over which the plaintiff is claiming his rights. Further, during examination also, plaintiff has himself stated that "I never applied for obtaining certified copy of any of the plan mark A to C and D as mentioned in my examination in chief to any department. It is correct that Mark A has not obtained by me from the office of Patwari. I am not aware as to whether plan mark D is in accordance with the plan of Gautam Nagar, New Delhi or Govt or not. I stated the construction undertaken by the defendants to be unauthorized after getting information in this regard by MCD. MCD has never given me in writing any communication stating that the construction undertaken by the defendants is unauthorized."
(ix) However, it is not in dispute whether the said gali is included in the property No. 96, Gautam Nagar, New Delhi or not therefore, the court is not required to adjudicate upon this issue and as far as possessory right is concerned, as per report of Ld. LC the plaintiff is in possession of the said passage but the defendants have taken the plea that the said passage is open area and the said area is an open area between the property of the defendants and property No. 96A/1, Gautam Nagar, New Delhi and the property of the defendants is not facing towards the property of plaintiff. During cross examination, plaintiff has admitted that "..........Building shown as No. 95A of the defendants and property shown as Y is property No. 96A. The photographs is Ex. PW1/D1. When I occupy property No. 96, only some of the opening as shown in Ex. PW1/D1 existed in the property Mark X and Y. In property No. 95A there were opening on the first floor and in the property No. 96A there were some opening on the first floor Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 22/26 and some on the second floor..........."
(x) Thus, the defendants have been able to prove their contention that the property of the defendants is not facing towards the property of the plaintiff. Further, as per report of Ld. LC also the plaintiff is in possession of the said passage but there is no construction in the said passage and therefore, there can not arise any question of violation of any right or privacy of the plaintiff when there is no construction of the plaintiff over the said passage.
Further, during cross examination, PW1 has admitted that "At the time of visit of Ld. LC a number of openings and which also appears in Ex. PW1/D1 were existing but I do not remember their number specifically but in property No. 96A some of the opening as shown in the aforesaid photographs in 96A were not there as construction took over there later on. The said construction in property No. 96A took place during the pendency of the present suit. The construction undertaken in property no. 96A has not affected natural air and light to my property. The construction and openings in property no. 96A also does not affects the privacy of any portion of my house. The said windows in property No. 96A as per understanding entered into between myself and the owner of the property are kept close and in case they are ever opened them my privacy will certainly by affected. It is correct that the leaves of all the windows etc in property No. 96A opens towards inside the buildings and their exist grills over there. Same is the position with the window of the house of the defendants though in some of the window their exist no grills. Witness further states that there however exist certain big openings in the Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 23/26 property of defendants which do not exist any door or grill. The aforesaid opening which I am referring is the one which runs from ground floor to the top or from the middle of the property to the top in the property of the defendants. The said opening are having some iron bars to a certain heights for safety purposes."
(xi) Thus, the PW1 has admitted that because of the said openings by the defendants there is no obstruction to the natural air and light of the property nor the said opening affect the privacy of any portion of the plaintiff's property. It is also admitted that the leaves of the windows and of the said openings are not towards the outside and are not opening into the said passage. It is also important that the said suit was filed on 16.01.1990 and vide order dated 19.01.1990, Ld. LC was appointed and on the same date, Ld. LC visited the house and as is apparent from his report quoted above that the said openings were already in existence at the time of visit of Ld. LC. Though, the first two windows were under construction while the third window had already been constructed and as windows have already been constructed there arises no question of restraining the defendants from opening the said windows towards the house of the plaintiff. Moreover, in view of the above discussion, it is clear that the plaintiff has failed to prove how the said construction is affecting the right of privacy or right of natural air and light of the plaintiff and thus, plaintiff has failed to prove his averments and therefore, the issue No. 3 is decided in favour of the defendants and against the plaintiff.
(B) Issue No. 1 Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 24/26
Whether the suit of the plaintiff is maintainable in view of the preliminary issue objection No. 1?OPP.
The onus to prove this issue is upon the plaintiff. It is argued by the plaintiff that the defendants have raised the preliminary objection that the property of the defendants i.e H. No. 95A/1 is already three storyed and the window on the ground floor, first floor and second floor are already is in existence. In view of the discussion during issue No. 1, it has already been discussed that the defendant No. 1 has been able to prove the said contention that the building was already three storyed as is apparent from Ex. PW1/D1 and from Ex. DW1/P3 to Ex. PW7. Therefore, issue No. 1 is decided in favour of the defendants and against the plaintiff.
(C) Issue No. 2
Whether the plaintiff has not any locus standi to file the present suit? OPD.
The onus to prove this issue is upon the plaintiff. In view of the discussion, during issue No. 3, it is clear that plaintiff has been able to show that plaintiff has locus standi to file the present suit, therefore, the issue No. 2 is decided in favour of the plaintiff and against the defendants.
10. As the issue No. 1 and 3 have been decided in favour of the defendants and against the plaintiff, the suit is liable to be dismissed. Accordingly the suit is dismissed as the plaintiff has failed to prove his own case.
No order as to cost.
Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 25/26 Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance. Announced in the open court on rd 23 April, 2013 (Prabh Deep Kaur) Civil Judge05(West) THC/Delhi/23.04.2013 Suit No. 105/10 Sh. V.K. Vadhera Vs. Sh. S.B. Aggarwal Page No. 26/26