Delhi District Court
Vinod Srivastava S/O Sh. Sheo Parshan ... vs Sh. Hari Chand Jain & on 25 March, 2014
:1: CS No.: 273/14
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 273/14
In the matter of :
VINOD SRIVASTAVA S/O SH. SHEO PARSHAN LAL
R/O FLAT NO. 181, NIMRI COLONY,
ASHOK VIHAR, DELHI110052.
......PLAINTIFF
VERSUS
1. SH. HARI CHAND JAIN &
SMT. SUSHILA DEVI
BOTH DECEASED THROUGH LRs
(i) SH. PRAMOD KUMAR JAIN
S/O LATE SH. HARI CHAND JAIN
R/O 182, NIMRI COLONY, DELHI52.
(ii) SMT. NUTAN JAIN W/O SH. SUKHMAL JAIN
D/O LATE SH. HARI CHAND JAIN,
R/O 25B, LAXMI NAGAR, DELHI52.
(iii) SMT. REKHA JAIN W/O SH. DINESH JAIN,
D/O LATE SH. HARI CHAND JAIN,
R/O H.NO. 415, VILLAGE & PO TUKLAKABAD,
DELHI110044.
2. SH. VINOD KUMAR JAIN
S/O HARI CHAND JAIN
R/O FLAT NO. 182, NIMRI COLONY,
ASHOK VIHAR, DELHI110052.
3. SMT. RENU JAIN W/O SH. VINOD KUMAR JAIN
R/O FLAT NO. 182, NIMRI COLONY, ASHOK VIHAR
DELHI110052.
P.No. 1 Of 19
:2: CS No.: 273/14
4. MUNICIPAL CORPORATION OF DELHI
THROUGH COMMISSIONER, TOWN HALL,
DELHI.
.....DEFENDANTS
Date of institution: 23.12.1993
Date of judgment: 25.03.2014
SUIT FOR INJUNCTION
JUDGMENT:
1. Plaintiff has filed the present suit for injunctions restraining defendants no. 1 to 4 from raising any structure on the second & third floor above the ground floor flat of the plaintiff, further restraining them from indulging in any activities as mentioned in para no. 12 of the plaint as also directing the defendants to pull down the unauthorized constructions at the second floor.
2. Briefly narrated case of the plaintiff is that he is owner and in occupation of ground floor flat no. 181, Nimri Colony, Ashok Vihar, New Delhi. Defendant no. 1 is the allottee and in occupation of first floor flat no. 182, Nimri Colony. Defendant no. 5 is the lessor of the ground and first floor. It is further averred by the plaintiff that defendant no. 1 to 4 have unauthorizedly built up entire second floor and are in the process of raising unauthorized constructions on the third floor in connivance with defendant no. 5, who has P.No. 2 Of 19 :3: CS No.: 273/14 not been taking action on the complaints made by the plaintiff in respect of unauthorized constructions being raised by defendant no. 1 to 4. The defendants have installed a marble name plate on the wall of the plaintiff. Defendants interfered with the fencing of the ground floor and are trying to trespass and cause nuisance in the house of the plaintiff. Defendants misused drain pipe meant for rain water by connecting the same with unauthorized bathroom at the second floor thereby making the courtyard of the plaintiff dirty and filthy. Due to deliberate misuse of drain pipes of bathroom, latrine and kitchen, the courtyard of the plaintiff gets dirty and filthy as well as damage has already been caused to the wall at the ground floor in possession of the plaintiff due to seepage, leakage and unattended drain pipes of defendant no. 1. Defendants have denied to the plaintiff access to the terrace of the first floor to which plaintiff has equal right with defendant no. 1 with further right to install TV antenna there. Due to unauthorized construction, plaintiff has no access to the overhead water tank and is not in a position to repair it. Defendants are further alleged to be indulged in throwing garbage in the courtyard of plaintiff. One tenant has been inducted by the defendants in the unauthorized constructions. The unauthorized construction is fatal to the P.No. 3 Of 19 :4: CS No.: 273/14 foundations of the building. Hence, the present suit.
3. Defendants no. 1 to 4 filed their joint written statement submitting that plaintiff has no right, title or interest in flat no. 182, Nimri Colony, Ashok Vihar, Delhi. Suit of the plaintiff is not maintainable for misjoinder of the parties and cause of action. Present suit has been filed to harass the defendants as a counter blast to the complaints made by defendant no. 1 against plaintiff to the police and other authorities in respect of unauthorized constructions being raised by the plaintiff on the open municipal land on ground floor which is meant for common use for plaintiff and defendant no. 1. It is further submitted by defendant that plaintiff collected building material for raising boundary walls around the open municipal land in front of his house on 29.05.1993. Defendant no. 1 asked the plaintiff not to raise unauthorized construction on the open municipal land as the entry of defendant no. 1 was going to be restricted but plaintiff did not listen and threatened that he would raise boundary wall around the municipal land . Thereafter, defendant no. 1 lodged a report in police station Ashok Vihar on 29.05.1993. Police visited the spot and asked the plaintiff not to raise illegal construction on the municipal land but again on 27.06.1993 P.No. 4 Of 19 :5: CS No.: 273/14 plaintiff fixed iron angle with concrete around the entrance of the said open municipal land in front of his house and also constructed a pacca iron gate restraining the use of said municipal land by defendant no. 1 and his family members. Plaintiff also affixed barbed wire fencing around the said open municipal land illegally and unauthorizedly. Besides this, plaintiff also made entire backyard pacca by causing blockage and hindrance of outlets of rain water and sewage of premises no. 182 Nimri Colony. Rest of the case of the plaintiff has been denied being wrong and incorrect.
4. Defendant no. 5 Municipal Corporation of Delhi also filed its written statement submitting that present suit is hit by provisions of section 477/478 of DMC Act. On 22.12.1993 it was reported to defendant no. 5 that unauthorized construction is going on at the suit premises No. 182, Nimri Colony. Immediately, the ongoing unauthorized construction was demolished same day. However, unauthorized construction still exists on second floor which is an old one but the same is also actionable as per provisions of DMC Act.
5. Plaintiff filed replication to the written statement of defendant no. 1 to 4 and defendant no. 5 reiterating and reaffirming his case as contained in P.No. 5 Of 19 :6: CS No.: 273/14 the plaint and has denied the averments of the defendants in the written statement.
6. On the basis of the pleadings of the parties, on dated 27.04.2000 following issues have been framed for trial:
1. Whether the suit of the plaintiff is not maintainable in the present form? OPD.
2. Whether the suit of the plaintiff is bad of misjoinder of parties or cause of action ? OPD.
3. Whether plaintiff is entitled for the decree of permanent injunction as prayed for? OPP.
4. Relief.
7. This suit first time came up before the court on 23.12.1993. The defendant no. 1 herein also filed suit which is now registered at suit no. 275/14 against the plaintiff herein for perpetual and mandatory injunction. Vide order dated 26.07.1997, both these cases have been clubbed for the purpose of evidence and suit no. 275/14 has been treated as main suit for leading the evidence. Ahlmad is directed to place photocopy of the evidence led in case no. 275/14 on the record of this file for the sake of convenience and ready P.No. 6 Of 19 :7: CS No.: 273/14 reference.
8. Plaintiff herein examined himself as DW1 in suit no. 275/14 and tendered his affidavit in evidence Ex. DW1/A bearing his signatures at point P and O. DW1 (Plaintiff herein) relied upon the documents Ex. DW1/2 (lease deed dated 17.07.1991) and DW1/3 (conveyance deed allottee dated 17.07.1991). DW1 also relied upon the documents Mark A to I.
9. On the other hand, defendant no. 1 herein examined himself as PW1 in Suit no. 275/14 and deposed on oath in the court in his examination in chief that he is the owner of flat no. 182, Nimri Colony. Previously he was allottee from the MCD since 1973. In 1989, the Corporation conferred ownership rights on them for a sum of Rs. 24,000/ and something. The MCD had given allotment letter, copy of which is proved on record as Ex. PW1/1(OSR). PW1 paid the consideration for purchase of the flat. Photocopy of receipts are Ex. PW1/2 and PW1/3 (OSR). Vinod Srivastava (plaintiff herein) is the allottee of ground floor flat no. 181. The flats are constructed on an area of 65 sq. yards. There are open areas on the front and rear side of the constructed flat. PW1 had got prepared the site plan Ex. PW1/4. The portion marked at point A is the front one and rear one is marked P.No. 7 Of 19 :8: CS No.: 273/14 as point B. The front portion is for common use of the floor owners as also the rear portion. The MCD have constructed a wall about 4 feet in the rear portion initially. The defendant(Plaintiff herein) raised the height of the wall and plastered the same and erected an iron gate under his lock and key . The sewer pipe and waste pipe of flat no. 182 are installed on the rear side. PW1 (defendant no. 1 herein) has further deposed that he has no access to the rear portion for cleaning sewer pipe etc. as defendant (plaintiff herein) keeps the gate locked. Their kitchen pipe got blocked sometime in March 1993. PW1 (defendant no.1 herein) requested defendant (plaintiff herein ) to allow him to open the pipe but he refused. He lodged a report to the police. Police called upon the defendant(plaintiff herein) to do the needful but in vain. Police thereafter, arrested him as well as plaintiff. The occupant of flat no. 179 was also arrested as the gutter was blocked by him. Police snubbed all three parties and directed the occupant of flat no. 179 to get the pipes cleared. Thereafter, he agreed and went to the spot alongwith plumber and got pipes cleared. Copy of the report is marked as Mark X. A report was also lodged to Junior Engineer, MCD Wazirpur JJ colony on 10.07.1993 same is mark Y. It is further deposed by PW1 (defendant no. 1 herein) that defendant no. 1 P.No. 8 Of 19 :9: CS No.: 273/14 (plaintiff herein ) in the month of June, 1983 raised iron pillar angles and fixed barbed wires around the open space and also fixed iron gate. He objected to the same but was threatened by the defendant (plaintiff herein). A report was made to the police. Police visited spot but no action was taken. A report was also made to MCD but MCD also did not do anything. MCD issued a circular that the open space in front and back belongs to MCD and nobody was allowed to raise any construction on the open space. The circular dated 05.05.1990 is mark Z. PW1(defendant no.1 herein) asked the plaintiff to remove the pillar and pillar gate as also barbed wire but he did not listen and the same still exist. He further deposed that drained water pipe of the roof come in the front side and goes into nali. Defendant no. 1 (plaintiff herein) diverted the side of nali towards passage. Water started logging on the passage and he could not go to his flat. PW1 (defendant no. 1 herein) asked defendant no. 1 (plaintiff herein) to make nali in the original condition but he did not do so and threatened that he would make the same. Photographs are Ex. PW1/5 to Ex. PW1/9 and their negatives are Ex. PW1/10 to PW1/14.
10. Defendant no. 1 herein also examined PW2 Sh. Inderjeet, LDC , Townhall, in suit no. 275/14 who had brought the summoned record of offer P.No. 9 Of 19 : 10 : CS No.: 273/14 for transfer of ownership right letter no. LI/nimri/ L & E/89/2452 dated 14.09.1989 issued by Additional Deputy Commissioner, Land & Estate department, copy of which is Ex. PW1/1. According to the same, first installment of Rs. 2433/ vide G8 no. 964063 dated 25.07.1989 has been made by the defendant no. 1 herein, copy of which is Ex. PW1/2. Plaintiff (DW1) also made another installment of Rs. 21,890/ vide G8 no. 159008 dated 21.08.1989, copy of which is Ex. PW1/3. As per PW2 Sh. Inderjeet, the letter dated 05.05.1990 bearing no. PAGIS/LE/90/413 did not exist in the main file. Thereafter, further examination of Inderjeet was deferred for production of record of letter dated 05.05.1990. Thereafter, one Sh. K. Srivatsan, Administrative Officer from Land & Estate Department, MCD appeared and deposed that circular dated 05.05.1990 DACT (L &D)/90/413 was never issued by MCD Land & Estate Department.
11. Defendant herein also examined HC Rati Ram from PS Ashok Vihar who had brought the summoned record of complaint dated 29.05.1993 and 07.05.1993 which have been destroyed by order of DCP North West order no. 21945968/GEN/2/Northwest District dated 31.05.2003. Report in this regard is Ex. PW3/1 and photocopy of order dated 31.05.2003 issued by DCP P.No. 10 Of 19 : 11 : CS No.: 273/14 north west is Ex. PW3/2.
12. I have heard learned counsel for plaintiff, learned counsel for defendant and have carefully gone through the record.
13. It is argued by learned counsel for plaintiff that defendants have raised unauthorized and illegal construction on second and third floor over and above the first floor. Defendant no. 1 failed to prove his ownership in respect of first floor. Learned counsel for the plaintiff further argued that in cross examination, defendant no. 1 has admitted that he has raised unauthorized construction as alleged by plaintiff. The structure over which the defendants have raised the unauthorized construction is not worthy of bearing so much load of two extra floors and it also put exertions on other civic amenities provided in the complex.
14. On the other hand, it is argued by learned counsel for defendant that defendant no. 1 is the owner of first floor. The construction raised by defendant no. 1 on second and third floor has been compounded by defendant MCD. It is further argued by learned counsel for defendants that it is the plaintiff himself who has encroached and raised construction over the vacant land of MCD which was of common use.
P.No. 11 Of 19
: 12 : CS No.: 273/14
15. My issuewise finding as follows:
ISSUE No. 1 and 2
Whether the suit of the plaintiff is not maintainable in the present form? OPD.
Whether the suit of the plaintiff is bad of misjoinder of parties or cause of action ? OPD.
Both these issues are taken up together as they are interlinked and interconnected. Onus to prove both these issues was on defendants. So far as issue no. 1 regarding the nonmaintainability of the present suit in the present form is concerned, defendant has not led any evidence on record to discharge onus of this issue nor during the course of arguments learned counsel for the defendants argued as to how the instant suit is not maintainable in the present form. In the written statement, it is pleaded by the defendants that except defendant no.1 and defendant MCD, defendant no. 2 to 4 have been unnecessarily made party to the present suit. It is an admitted case on the part of the defendants that defendant no. 2 to 4 are/were residing in the suit property. The case of the plaintiff is with regard to raising illegal construction on the second and third floor above the first floor. The P.No. 12 Of 19 : 13 : CS No.: 273/14 defendants have not been able to satisfy this court by way of leading any cogent or convincing evidence or by way of addressing argument that suit deserves to be dismissed for impleading the defendant no. 2 to 4 as parties to the present suit. As per settled proposition of law, even otherwise misjoinder of the parties cannot result in failure of any lis. Therefore, both these issues are accordingly disposed of against the defendant.
16. ISSUE No. 3.
Whether plaintiff is entitled for the decree of permanent injunction as prayed for? OPP.
Onus to prove this issue was on plaintiff. Defendant No. 1 herein has examined himself as PW1 in suit no. 275/14. He has been cross examined by learned counsel for the plaintiff. In his cross examination, defendant no. 1 has deposed that there is no registered sale deed in his favour in respect of the flat. He admitted that he was allotted the first floor but he also constructed second floor. Defendant no. 1 further admitted in his cross examination that the construction on the second floor is unauthorized. He had also constructed a tin shed on the third floor. Defendant no. 1 daringly admitted in his cross examination that the tin shed on the third floor is also without any sanction. P.No. 13 Of 19
: 14 : CS No.: 273/14 He further admitted in his cross examination that the boundary wall in the rear side was constructed by MCD and that an iron gate was also provided by the MCD. He further admitted that there is one trap for kitchen of flat no. 179, 180, 181 and 182 and said trap is placed in the portion of flat no. 179. He further admitted that occupant of flat no. 179 has blocked the same by constructing pacca floor.
17. During the course of arguments learned counsel for defendant argued that in the status report filed on behalf of MCD in case No. 275/14 (Ahlmad is directed to place copy of status report in this file also), the status of suit property i.e. flat no. 182, Nimri Colony, Ashok Vihar, Delhi is concerned, it is submitted that the corporation vide resolution no. 924 dated 15.02.1984 and the Hon'ble High Court decision dated 12.12.1984 for trnasfer of ownersip rights of quarter no. 182 , Nimri Colony, Delhi under the LIG Scheme and offer of transfer of ownership rights on lease hold basis were issued in the name of Sh. Hari Chand Jain vide letter no. LI/nimri/L&G/89/2452 dated 14.08.1989. Sh. Hari Chand Jain deposited the total cost of the ownership of the above flat amounting to Rs. 24,323/ on 25.03.1989 and 21.08.1989 vide G8 no.
964063/159008 respectively. Subsequently, Sh. Hari Chand Jain vide
P.No. 14 Of 19
: 15 : CS No.: 273/14
application dated 21.12.1991 has applied for conversion of lease hold property into free hold and submitted requisite documents but the decision on said application is yet to be taken. The MCD had further reported that for removal of unauthorized construction /encroachments carried out by various allottees of the colony, CWP No. 3587/94 was filed by affected residents in Delhi High Court which is still pending consideration in the High Court. The MCD had further reported that vide resolution no. 386 dated 25.09.2000, Corporation decided to regularize the unauthorized construction/encroachment subject to deposit of additional land cost, compounding charges, augmentation charges amounting to Rs. 2,30,663/. The demand letter was accordingly issued to Sh. Hari Chand Jain on 28.03.2001 followed with reminder dated 17.08.2007. Sh. Hari Chand made the payment amounting to Rs. 2,30,663/ on 21.01.2008 vide G8 no. 423033. The status report furnished by MCD on 10.01.2011 is further to the effect that property no. 182 is the first floor of two storey building wherein ground floor is flat no. 181. On Flat No. 182, Nimri Colony, second floor was unauthorizedly constructed which was booked vide file no. 349/B UC/RZ1/2007 dated 05.10.2007. It is further reported that there is no unauthorized construction existing on third floor and unauthorized P.No. 15 Of 19 : 16 : CS No.: 273/14 construction exists only at second floor which is occupied by Sh. Pramod Jain S/o Sh. Hari Chand Jain.
18. This is the status report furnished by MCD/defedannt no. 5 on record of which learned counsel for defendant no. 1 to 4 wanted to take help that the unauthorized construction if any on flat no. 182 has been compounded when the defendant no. 1 deposited Rs. 2,30,663/ on 21.01.2008 vide G8 no. 423033.
19. I have carefully gone through this status report of MCD. It is little bit confusing. On the one hand, in para no. 2 of the said status report MCD says that a CWP no. 3587/94 is pending before Hon'ble High Court of Delhi for consideration for regularization of unauthorized construction/encroachment carried out by various allottees of colony, whereas on the other hand the MCD has allegedly compounded the unauthorized construction on receipt of payment of Rs. 2,30,663/ on 21.01.2008 vide G8 no 423033. The defendant MCD is silent as also defendant no. 1 is silent as to what directions Hon'ble High Court of Delhi passed in CWP no. 358794 regarding regularization of unauthorized construction . Be that as it may. The construction raised by the defendant no. 1 over flat no. 182, Nimri colony, Ashok Vihar is in contravention P.No. 16 Of 19 : 17 : CS No.: 273/14 of the directions passed by Hon'ble Mr. Justice Pradeep Nandrajog in 2006 V AD (Delhi) 591 S.L. Gupta & Ors. v. MCD & Ors. In this judgment the court had held that "additional coverage outside precincts of flat over a courtyard and terraceowner of vertical flat not willing to give requisite consent. Hence, question of compounding any additional construction on terrace above second floor does not arise. Owners of flat in a vertical block have to either jointly seek regularization or must give a no objection in favour of other".
20. It is not the case of defendants that they had taken the consent of other occupants of the vertical block particularly of plaintiff herein. Even if defendant no. 5 MCD has compounded the unauthorized construction raised by defendant no. 1 on 2nd and 3rd floor over flat no. 182, the same is contrary to law. The status report furnished on record by defendant no. 5 with regard to ownership of flat no. 182 in favour of defendant no. 1 on payment of requisite charges and conversion charges is of no consequence as this is not the issue in hand. As per settled proposition of law, laid down in S.L. Gupta & Ors. (supra), even an owner of the flat in a vertical building cannot raise construction over and above his flat without consent and no objection of other P.No. 17 Of 19 : 18 : CS No.: 273/14 occupants of the vertical building. Defendant no. 5 has nowhere pleaded or deposed that the compounding of the second floor and third floor unauthorizedly raised by defendant no. 1 was done on the joint request of the occupants of the building. Defendant no. 5 states in status report that there exists no unauthorized construction on the second floor whereas defendant no. 1 has deposed in his cross examination with full breast that he has raised construction on the second and third floor without permission from the MCD. MCD in its written statement has submitted that unauthorized construction exists at the second floor which is old one but the same is also actionable as per provisions of DMC Act.
21. In view of the admission on the part of defendant no. 1 in his cross examination that he has raised illegal construction on 2nd and 3rd floor which has admittedly been booked by MCD, this issue is accordingly decided in favour of the plaintiff and against the defendants.
22. RELIEF:
In view of my discussion on issues hereinabove, a decree of mandatory injunction is hereby passed in favour of plaintiff and against the defendants thereby directing defendant no. 5 to demolish the construction on P.No. 18 Of 19 : 19 : CS No.: 273/14 the second floor and third above flat no. 182, Nimri Colony, Ashok Vihar as per site plan Mark A. A further decree of permanent injunction is also passed in favour of plaintiff and defendant no. 1 to 4 restraining them from raising any further illegal construction on third floor above flat no. 182, Nimri Colony, in terms of site plan Mark A. On demolition of the illegal second and third floor, the plaintiff shall have access to the terrace for the purpose of repair /cleaning of overhead tank as also for the purpose of fixation of antennas / dishes at the convenient hours of the day. So far as other reliefs sought for by the plaintiff as mentioned in para no. 12 of the plaint are concerned, the same cannot be granted to the plaintiff as they cannot be enforced specifically due to their nature. Under the circumstances parties are left to bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 25th March, 2014.
(KISHOR KUMAR) CIVIL JUDGE12/CENTRAL Tis Hazari/Delhi.
P.No. 19 Of 19