Delhi District Court
Mantu Kumar Baral vs Ujjal Kumar Baral on 20 August, 2016
IN THE COURT OF HARJYOT SINGH BHALLA : ACJ/CCJ/ARC(SE),
SAKET COURTS, NEW DELHI
New No. 51526/16 (old. No. CS No. 127/15)
Mantu Kumar Baral, aged 46 years,
S/o Late Sh. Gajendra Nath Baral,
R/o H. No.652, GF, Gali No. 13, Lakhpat Colony,
Part2, Meethapur Extn., Badarpur,
New Delhi110044.
.........Plaintiff
Versus
Ujjal Kumar Baral
S/o Late Sh. Gajendra Nath Baral,
R/o H. No.652, First Floor, Gali No. 13, Lakhpat Colony,
Part2, Meethapur Extn., Badarpur,
New Delhi110044.
Uttam Kumar Baral
S/o Late Sh. Gajendra Nath Baral,
R/o H. No.652, Second Floor, Gali No. 13, Lakhpat Colony,
Part2, Meethapur Extn., Badarpur,
New Delhi110044.
........... Defendants
Date of institution : 13.05.2015
Arguments heard on : 09.08.2016
Judgment pronounced on : 20.08.2016
Judgment
1.Vide this judgment I propose to dispose off the suit filed by the plaintiff for permanent and mandatory injunction. The plaintiff claims to be the C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 1 of 8 owner in actual physical exclusive possession of ground floor portion of House bearing pot No.A/652/181, measuring 46Sq. Yards, admeasuring 14.8"x30 forming part of Khasra No.280, 281 situated at Lakhpat Colony, Part2, Meethapur Extn., Badarpur, New Delhi.
2. It is averred that as a matter of fact the plaintiff and his two brother defendant no.1 and proforma defendant No.2 had jointly purchased Plot No.A/652/181, measuring 46 Sq. yards from Sh. Tara Chand Awana, S/o Sh. Rajender Prakash, R/o H. No.28, Village Meethapur, Badarpur, New Delhi vide a duly executed and attested General Power of Attorney on 19.07.2002, agreement to Sell, Affidavit and Receipt.
3. It is averred that after the purchase of the said plot the plaintiff and defendant no.1 and defendant No.2 got a house constructed consisting of Ground, First and Second Floor in the year 2003 out of their joint funds.
4. It is averred that thereafter, the parties had entered into an oral mutual family settlement which took place between them in the year 2003. The plot was partitioned into three equal share. The ground floor portion consisting of three rooms, toilet, bathroom, kitchen and open space admeasuring 3 ½ 'x6' underneath the staircase on ground floor marked with letters ABCD shown in red color in the enclosed sketch plan fell to the exclusive share of the plaintiff. The first floor fell in the share of defendant no.1 and second floor portion fell to the exclusive share of defendant no.2.
5. It is averred that ever since the date of mutual family settlement, the parties are enjoying exclusive possession of their respective share. The dispute in the present case is about the portion marked as ABCD in the site plan which is next to the staircase leading to the first floor. Plaintiff claims exclusive right over the said area.
C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 2 of 86. It is averred that the defendant no.1 has tried to grab the said open space portion underneath and next to the staircase marked with letter ABCD by parking his motorcycle and also installed an electric motor for uplifting water. The plaintiff has been requesting the defendant no.1 to remove his electric motor and not to park his motorcycle at the open space. On 09.05.2015 the defendant no.1 illegally parked his motorcycle on the open space portion subsequently police was called where a compromise took place between the parties whereby it was agreed by defendant no.1 that the plaintiff has every right to use his open space underneath the staircase for his own individual purpose and defendant no.1 will stop parking his motorcycle on the open space of plaintiff and will remove his illegally installed electric water motor from the said portion immediately and will not interfere into the actual physical peaceful exclusive possession of his ground floor open space portion underneath the staircase.
7. It is averred that inspite of the said written compromise dated 09.05.2015 the defendant no.1 has again started threatening the plaintiff. That the defendant no. 1 has not abided by the compromise. On 11.05.2015 the defendant no.1 not only declined / refused to accede to the legitimate request of plaintiff, but also reiterated his threats to translate his evil design, this is the date when final cause of action has arisen in favour of plaintiff and against the defendant which necessitated the institution of instant suit. .
8. In these circumstances plaintiff has prayed for a decree of permanent injunction restraining the defendant no. 1 from interfering with the exclusive use and possession of the open space on the ground floor underneath the staircase marked as ABCD in the site plan. Plaintiff has also sought mandatory injunction directing the defendant no. 1 to remove the electric C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 3 of 8 motor from underneath the staircase.
9. At this stage, it may be relevant to take note of the site plan itself where the portion ABCD has been shown adjacent to the staircase and not exactly under the staircase. Although, the claim in the plaint is that this portion ABCD is under the staircase.
10. Summons were duly served on the defendants. Defendant no. 1 filed his written statement. It is averred that the present suit has been filed malafide, just to grab the common area on the ground floor of the suit property.
11. It is averred that the said open space on the ground floor of the suit property is a common use area for plaintiff and defendants for installation of water motor, electricity meter and for parking of two wheelers which had been settled between the parties as per oral settlement. It is averred that the defendant no.1 has every right to use the said open space of ground floor of the suit property for installation of electric water motor, electricity meter, water meter and parking of his motorcycle while the plaintiff has no right to stop the defendant no.1 for installation electric water motor or park his motorcycle at open space of ground floor of the suit property as the same is common use for plaintiff as well as defendant no.1.
12. The defendant disputed the claim that the entire suit property was built up with joint funds and the defendant pleaded that the first floor had been built by him from his own funds. However, since the purchase of the plot from joint funds and the oral family settlement having taken place dividing the property floor wise is not in dispute. The averments about the same are hardly relevant. The pure question is as to what was the settlement arrived at between the parties and whether the area shown as ABCD in the site plan is common C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 4 of 8 area or an exclusive area of the plaintiff.
13. The defendant had admitted that the police got involved in their dispute on 09.05.2015 but he has his own version. He has stated that police took his signatures on blank paper, but the plaintiff in connivance with police of P.S Jaitpur has used the said document containing blank signature of defendant no.1 fraudulently.
14. It is averred that the defendant no.1 has every right to use the said open space of ground floor of the suit property for installation of electric water motor, electricity meter, water meter and parking of his motorcycle while the plaintiff has no right to stop the defendant no.1 for installation electric water motor or park his motorcycle at open space of ground floor of the suit property as the same is common use for plaintiff as well as defendant no.1.
15. On the pleadings of parties, the following issues were framed by my Ld. Predecessor:
(i) Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP.
(ii) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP.
(iii) Relief.
16. Before deciding the issue with regard to grant of injunctions, it is to be decided whether the open space next to the staircase shown as ABCD in the site plan fell in the exclusive share of the plaintiff and the defendant no.1 has encroached or threatened to encroach upon the same. The plaintiff had pleaded that the property was jointly owned till it was partitioned in the year 2003 and in the partition the open space measuring 3.5 X 6 feet underneath the staircase marked ABCD in the site plan fell to the exclusive share of the C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 5 of 8 plaintiff. No written settlement has been placed on record and the partition is stated to be oral. It is pleaded that the defendant started parking his motorcycle and installed motor in order to encroach upon the said area under the staircase. No date has been given as to when the electric motor was installed. Another compromise dated 09.05.2015 which is in writing has been relied upon.
17. In order to prove their respective case evidence was adduced by the parties. Plaintiff himself entered the witness box and orally deposed about the same. However, from the affidavit tendered in evidence Ex.PW1/A the stand on the aspect of installation of electric motor has been omitted and it is only deposed that from March 2015 defendant started parking his motorcycle. During the cross examination it was admitted by the plaintiff that earlier there was a staircase leading to the higher floors from inside the house. It was also admitted that later on another staircase was constructed from the front side of the property i.e. where it is currently situated and the old staircase built inside was demolished. The plaintiff also admitted that at the time new staircase was constructed the electricity meter and water motor was not installed under the same. He also admitted that at present the electricity meter and water motor of the plaintiff as well as defendant no. 1 are installed under the staircase. Even the electricity meter of defendant no. 2 is installed there. Thus plaintiff has been unable to show as to when the electricity meter and water motor was installed and it is probable that the same were installed long time back and the claim of the plaintiff in the plaint regarding the illegal installation of the same is clearly stale.
18. The PW2 who is a neighbour of the parties herein was also examined by the plaintiff as a witness. He also admitted in his cross examination that the stairs are being used by plaintiff, defendant no. 1 and C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 6 of 8 defendant no. 2 equally. The witness proved that some quarrel had taken place in the year 2015 because of parking of motorcycle by defendant no. 1 on the ground floor.
19. The defendant also entered the witness box. He deposed that the open space in the suit property next to the staircase is common used area to the parties for installation of water motor, electricity meter and parking of 2 wheelers. He deposed that the plaintiff intended to encroach upon the common area and hence the present suit has been filed. The defendant also deposed that on 09.05.2015 the quarrel took place and the parties were taken to police station where signatures of the defendant was taken on blank papers by the police and the same has been misused. But this witness admitted that the disputed portion claim by the defendant is parking spot was being used by the plaintiff as kitchen.
20. At the outset, it may be pointed out that although the plaintiff had stretched on the settlement arrived on 09.05.2015 at PS Jaitpur, the settlment was neither produced in evidence nor its production was sought through any witness from the Police Station concerned. The best evidence of the written settlement dated 09.05.2015 was therefore with held from the court. Considering the evidence on record including the admissions made by the witness in their cross examination and in examination in chief, it stands established that the part of the portion which is shown as ABCD in the site plan was being used by the plaintiff as a kitchen and the defendant also tried to use it to park his two wheeler. It is also admitted position that the area ABCD is open area next to the stairs and the area under the staircase is accessible through this portion ABCD only where electricity meter and water motor of the parties to the suit are installed. Clearly, these stairs were built later on to C.S No. 51526/16 Mantu Kumar Baral Vs. Ujjal Kumar Baral & Anr. Page 7 of 8 grant access to the first floor and above to the parties without disturbing the possession of the plaintiff over the ground floor after the property was divided amongst the parties. However, the plaintiff has failed to plead and prove when the water motor and electricity meter were installed and whether he actually objected to the same or not. In fact, from the evidence it seems that this area was intended to be used for installation of common facilities such as water motor, electricity meter etc. Therefore, in view of these findings a decree for mandatory injunction as prayed for cannot be granted to the plaintiff.
21. Issue no. 2 is accordingly decided against the plaintiff and in favour of the defendant.
22. As far as the issue no.1 i.e. Whether the plaintiff is entitled to a decree of permanent injunction is concerned, parties admitted that some settlement was arrived at on 09.05.2015 regarding the parking of vehicle in portion marked ABCD but none of the parties have placed the same on record. It was for the plaintiff to prove all the facts which may entitled him to a judgment and decree in his favour since he has failed to do so and I have arrived at the findings that the area marked ABCD is a common area, the injunction based on the premise that the said area is in the exclusive used by the plaintiff cannot be granted. Therefore, the suit of the plaintiff is dismissed.
23. Parties are left to bear their own costs.
Announced in the open Court (Harjyot Singh Bhalla)
dated 20.08.2016 ACJ/CCJ/ARC/ SouthEast,
Saket Court Complex, New Delhi.
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