Delhi District Court
Anand Kumar vs . Anil Kumar on 11 May, 2023
Anand Kumar Vs. Anil Kumar
IN THE COURT OF SH. ABHISHEK KUMAR,
JSCC/ASCJ/GJ (WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 10271/2016
CNR No. DLWT03 -000455 -2012
Sh. Anand Kumar
S/o late Sh. Roop Ram
R/o 65-C, First Floor
DDA Flat, Pandav Nagar
Delhi.
...........Plaintiff
Versus
1. Sh. Anil Kumar
S/o Sh. Roop Ram
C/o William John
RZ-1A, Raj Nagar
Palam, New Delhi.
2. Sh. Sanjay Kumar
Proprietor of
S. K. Properties
52-A, DDA Flats
Pandav Nagar
Near Shadipur Depot
New Delhi.
3. Mr. John
R/o 65-D, DDA Flat
First Floor, Pandav Nagar
Delhi.
4. The S.H.O.
P.S. Ranjit Nagar
Page no. 1 of 19
Anand Kumar Vs. Anil Kumar
New Delhi.
5. Delhi Development Authority
Through its Secretary
Vikas Sadan, INA, New Delhi
( deleted by the orders of the court)
6. Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, Asaf Ali Road
New Delhi.
7. Smt. Beena Sung
W/o Sh. John
R/o 65-D, First Floor
DDA Flats, Pandav Nagar
New Delhi.
...........Defendants
Date of Institution : 14.02.2012
Date of final arguments : 04.05.2023
Date of decision : 11.05.2023
JUDGMENT
1.0. The plaintiff has filed the present suit for permanent and mandatory injunction against the defendants.
1.1 The plaintiff is seeking mandatory injunction to restrain defendant no. 1,2,3 & 7 to remove unauthorized construction and to restore the flat bearing no. 65-D, DDA Flats, Pandav Nagar, Delhi to its original condition.
Page no. 2 of 19 Anand Kumar Vs. Anil Kumar 1.2. The plaintiff is also seeking permanent injunction to restrain the defendant no. 1,2,3 & 7 from carrying any further unauthorized and illegal construction, additions or alterations in the flat bearing no. 65-D, first floor, DDA flats and also directions to the defendant no. 4 & 6 from allowing the above stated defendants to carry any unauthorized construction.
2.0. It is the case of the plaintiff that he and the defendant no.1 are the real brothers and defendant no.2 is a property dealer in the area and defendant no. 3 is the builder.
2.1. The father of the plaintiff and the defendant no.1 was the owner of the property bearing no. 65-D, first floor, Pandav Nagar, New Delhi, purchased in the name of defendant no.1. Further, the property bearing no. 65-C, first floor, Pandav Nagar, New Delhi was also purchased by the father of the plaintiff in the name of his wife.
2.2. The father of the plaintiff passed away on 05.01.1992 and mother on 10.12.2009. Thereafter, on the basis of mutual oral Family Settlement, the flat no. 65-D came into the share of defendant no.1 and flat no. 65-C in the share of the plaintiff.
2.3. It is further averred that as per the family settlement, it was agreed that plaintiff shall raise the construction of one room above the property no. 65-C & 65-D out of his own funds and savings and Page no. 3 of 19 Anand Kumar Vs. Anil Kumar the plaintiff will look after the parents and after their death, the said room will also fell to the share of the plaintiff and will be occupied by him. The said room was constructed by the plaintiff after the death of his father from his own funds and the mother of the plaintiff started residing there.
2.4. After the death of his mother, the plaintiff occupied the room over the flat no. 65-C & 65-D but the defendant no. 1 started putting pressure on the plaintiff to hand over the possession of the room but plaintiff did not agree for the same.
2.5. Thereafter, on 09.01.2011, the defendant no.1 and other brothers came at his flat at about 3 PM with iron hammer and pipes and started attacking the plaintiff without any excuse and broke the grill fixed in front of the flat no. 65-C and 65-D forcibly. The plaintiff came to know that the defendant no.1 in collusion with the defendant no.2 wanted to take forcible possession of the room in question.
2.6. The defendant no. 1, several times threatened the plaintiff at his house to hand over the possession of the room in question and despite the complaints of the plaintiff no action was taken. The defendant no. 1 & 2 abused the plaintiff on 06.02.2011 at his house.
2.7. It is averred by the plaintiff that defendant no.1 in collusion with the defendant no. 2 & 3, started demolishing construction of the flat bearing no. 65-D first floor and also demolished various Page no. 4 of 19 Anand Kumar Vs. Anil Kumar portions on the ground floor for raising illegal and unauthorized construction. Further, they do not have any sanctioned plan from the MCD and the plaintiff had made a complaint with respect to the same but no action was taken. Hence, the present suit.
3. In the present case, the written statement was filed on behalf of defendant no.2/Sanjay Kumar, defendant no.3/Johnson Sung, defendant no.5/DDA and defendant no.6/MCD. The defendant no.3/John Sung also filed counter-claim along with the written statement. The rest of the defendants did not file the written statement despite opportunity.
4. The defendant no.2/Sanjay Kumar in the written statement has admitted that plaintiff and the defendant no.1/Anil Kumar are the real brothers. He denied that he is the property dealer of the area, running his business under the name and style of M/s S. K. Properties at flat no.62-A, Pandav Nagar. He also denied that the defendant no.1 in collusion with him started demolishing the construction of the flat bearing no. 65-D, DDA Flats, first floor, Pandav Nagar and also demolished various portions at the ground floor and were raising unauthorized construction. The defendant has denied the entire averments as alleged against him.
5.0. The defendant no. 3/Johnson Sung has stated in the written statement that as per the averments of the plaintiff made in para no. 5, the suit property i.e. flat no. 65-D first floor, Pandav Nagar, New Delhi-110006 came into the share of the defendant no.1 and thus, Page no. 5 of 19 Anand Kumar Vs. Anil Kumar the plaintiff had no right with respect to the suit property and it was sold by the wife of the defendant no.1 to him.
5.1. The defendant has further averred that the plaintiff has himself stated that a room was constructed on the flat no. 65-C and 65-D shown in green color in the site plan and the same is unauthorized and thus, it is also required to be demolished.
5.2. The defendant also stated that both the properties are completely independent to each other and there exists no nexus between each other and no document has been brought on record with respect to the same.
5.3. It was also mentioned that the suit was not maintainable due to the mis-joinder of the parties as his wife was a necessary party to the suit as the property in question was sold to her by one Deepak Kumar, who purchased the property from the brother of the plaintiff.
5.4. The defendant also stated that he is the bonafide purchaser and got the suit property out of his hard earned money and the defendant was only making necessary repairs in the suit premises. The defendant also denied averments as alleged against him.
5.5. The defendant in his counter-claim has stated that the room constructed by the plaintiff over the property bearing no. 65-C & 65-D was constructed without any sanction plan and is unauthorized/ illegal and there is admission on the part of the Page no. 6 of 19 Anand Kumar Vs. Anil Kumar plaintiff to this effect in the plaint itself.
5.6. The defendant no. 3 through counter-claim has sought the decree of mandatory injunction against the plaintiff to direct him to remove the unauthorized construction from the premises bearing no. 65-C, First Floor, DDA Flats, Pandav Nagar and to restore the same to its original condition.
6. The defendant no.5/DDA has stated in the written statement that the plaintiff has no cause of action to file the present suit against the defendant no.5 as the area has been transferred to MCD i.e. defendant no.6 vide notification no. F12/22/87-P/L&B/8949-66 dt. 27.05.1988.
7. The defendant no.6/MCD has stated in the written statement that the present suit is barred by the provision of Section 477/478 of the DMC Act for want of service of the statutory notice. It was further stated that owner/occupier of the flat bearing no. 65-D DDA Flat, Pandav Nagar has unauthorizedly raised walls on the roof of the flat and the demolition action was taken which could not be executed due to public resistance.
8. The plaintiff also filed replication to the written statement of all the defendants. The plaintiff denied the averments as mentioned in the written statement. The plaintiff had also filed written statement to the counter-claim wherein he has taken the objection that suit is without any cause of action and is not properly valued Page no. 7 of 19 Anand Kumar Vs. Anil Kumar and the defendant no. 3 does not have any locus to file the file the present counter-claim. The plaintiff denied that he has raised unauthorized construction in the shape of one room over the property bearing no. 65-C and 65-D as the same is very old construction.
9. In the present case, five issues were framed initially on 09.01.2013 and thereafter, two more additional issues were framed on 13.08.2014. The issues settled between the parties are as follows:-
1. Whether the suit is barred by provisions of Section 477/478 of DMC Act?OPD6
2. Whether unauthorized construction has been raised in the suit property i.e. flat no. 65B, DDA Flat, Pandav Nagar, Delhi in the year 2012 or thereafter by the private defendants/occupier of flat?OPP
3. Whether the plaintiff is entitled for decree of permanent injunction, as claimed ? OPP
4. Whether plaintiff is entitled for decree of mandatory injunction, as claimed ? OPP
5. Relief.
6. Whether the suit is bad for non-joiner of necessary parties?OPD
7. Whether the defendant no.3 is entitled to mandatory injunction as prayed for in the counter-claim?OPD Page no. 8 of 19 Anand Kumar Vs. Anil Kumar
10. The defendants did not lead the defendant evidence despite opportunity and thus, their right was closed. Thereafter, final arguments were heard. I have given my thoughtful consideration to the submissions made by the parties and also gone through the record. Before proceeding further to give finding on the issues, it will be pertinent to refer to the relevant provisions of law pertaining to the law of injunctions.
11. The rules pertaining to the injunctions are specifically incorporated under the Specific Relief Act, 1963. Section 36 to 42 of the said Act covers the provisions pertaining to the injunctions. The injunctions can be issued in the form of perpetual relief or in the nature of mandatory directions. Generally, the concept of injunction is conceptualized as an equitable relief which protects the civil right of a person from any irreparable injury. These rights can be protected either by commanding certain acts to be done or by preventing the commission of any acts.
12. It is an established principal of law that injunctions being the discretionary power of the court have to be exercised cautiously and in consonance with the recognized parameters of law.
13. As observed by the Hon'ble Apex Court in case titled as State of Haryana Vs. State of Punjab( 2004) 12 SCC 673, the Page no. 9 of 19 Anand Kumar Vs. Anil Kumar general law relating to injunctions is contained in Section 36 to Section 42 of the Specific Relief Act, 1963. An injunction may be permanent or temporary. A permanent injunction is final and conclusive of the facts in the context of which injunction is granted whereas temporary injunction is granted on the prima facie view of facts and is interim in nature till the pendency of the suit. Permanent injunction can be in the form of preventive or prohibitory injunction and differs from mandatory injunction. In prohibitory and preventive injunction, a party is prevented from doing a particular thing or continuing with the particular action. On the other hand, mandatory injunction commands an act to be done and is provided for under Section 39 of the Specific Relief Act, 1963. This command may direct the restoration of the status quo ante or may direct the performance of the positive act altering the existing state of things. Thus, a mandatory injunction like a preventive injunction may be temporary or final. In the instant case, the plaintiff has alleged the violation of his civil rights and it is to be seen whether he has been able to prove the same to seek the relief of injunctions. Therefore, now I shall discuss the case of the plaintiff and give my issue-wise findings hereinafter.
ISSUE NO.1
14. The onus to prove the present issue was upon the defendant no.6. However, the defendant did not lead any evidence to prove the aforesaid issue. The defendant has merely relied upon Section 477/478 of the DMC Act to show that the suit is barred as per the Page no. 10 of 19 Anand Kumar Vs. Anil Kumar said provision.
15. Upon the perusal of Section 478(3) of the DMC Act, there remains no doubt with respect to the present issue as the clause categorically states that the provision of Section 478 (1) will not be applicable to a suit in which the only relief sought is injunction. The purpose of Section 478(3) is to ensure that the object of the injunction suit is not defeated by the pre-requisite of giving a notice which will result into postponement of the institution of the suit.
16. The present suit has been filed by the plaintiff to seek the relief of permanent and mandatory injunctions. Therefore, as discussed above, the bar of Section 477/478 of the DMC Act will not be applicable to the present suit. Further, filing of the suit itself amounts to the notice and defendant has not brought any proof on record to show that they have suffered prejudice due to the non- compliance of the above stated sections. Accordingly, the present issue is decided in the favour of the plaintiff and against the defendant no.6.
ISSUE NO. 2,3 & 417.0. The onus to prove the issue no. 2,3 & 4 was upon the plaintiff. These issues being interconnected and overlapping in nature, are taken up together for giving the findings.
17.1 In the instant suit, the plaintiff has sought decree of Page no. 11 of 19 Anand Kumar Vs. Anil Kumar mandatory injunction for directing the defendant no. 1 to 3 and 7 to remove the unauthorized construction and restore the flat bearing no. 65-D, DDA Flats, Pandav Nagar to its original position.
17.2 The plaintiff has also sought decree in the form of permanent injunctions. However, the plaintiff has relinquished the prayer clause B(i) as the room in question was demolished but the counsel for the defendant no. 3 & 7 took the objection that after the amendment of the plaint, the said relief was again incorporated. Clarifications were sought from the plaintiff at a time of the final arguments, who clarified that they are still not pressing the said relief and it was incorporated inadvertently. Even on merits, if a claim was not specifically pressed for after giving due reason, the said relief cannot be incorporated again without the permission of the court and thus, no orders/findings are required with respect to the said relief. Now, the plaintiff is mainly seeking the relief to permanently restrain defendant no. 1 to 3 & 7 from carrying any further unauthorized construction, addition and alterations in the flat bearing no. 65-D. The plaintiff has also sought the relief to restrain defendant no. 4 & 6 from allowing the defendant no. 1 to 3 & 7 from raising any unauthorized construction as stated above.
18. Before moving ahead, I would like to refer to the judgment of Hon'ble High Court of Delhi in case titled as Rajender Motwani & Anr. Vs. MCD & Ors. RSA No. 243/17 decided on 16.10.2017, Page no. 12 of 19 Anand Kumar Vs. Anil Kumar wherein, it was observed and held as follows:
"the second reason for rejecting the arguments urged on behalf of the appellants/plaintiffs is that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of Section 15 of Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easement Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage /his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of Section 15 and 33 of the Easements act that right to easement of the appellants /plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the appellants/ plaintiffs or the appellants/ plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/ own property".
19. On the basis of the reliefs sought by the plaintiff and with reference to the judgment as mentioned above, it was obligatory on the part of the plaintiff, to not only have established Page no. 13 of 19 Anand Kumar Vs. Anil Kumar unauthorized/illegal construction but to show the infringement of his easementary or legal rights also, as mere unauthorized construction is in itself not sufficient to invoke the jurisdiction of this court to seek the relief of injunctions.
20. The plaintiff in order to establish unauthorized construction has tendered his evidence by way of affidavit which is Ex. PW1/A and also relied upon site plan which is Ex. PW1/1, copy of FIR Ex. PW1/3 and copies of complaints Ex. PW1/4 and Ex. PW1/6. The plaintiff also relied upon four photographs which are mark A (colly.) as well as documents Mark B & C.
21. During the cross-examination of the plaintiff by the defendant no.6, the plaintiff has stated that he was not aware whether any permission for the construction of the room at flat no. 65-C & 65-D was obtained. He voluntarily stated that the construction was raised by his mother around 10-12 years back. The plaintiff also stated that the construction was raised by the defendant no. 3 & 7 after the filing of the present case by raising construction of one room in L-shape. The witness was also shown the site plan which is Ex. PW1/1 and the witness stated that the L- shape room was not shown in the site plan. He again stated that the room shown in green color in the site plan was constructed by his mother. He denied the suggestion that MCD has already taken demolition action against the unauthorized construction in the suit property.
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22. The witness during the cross-examination by the counsel for the defendant no. 3 & 7 admitted that the FIR Ex. PW1/3, Ex. PW1/4, Ex. PW1/6, Mark B & C do not relate to the defendant no. 3 & 7. The witness denied the suggestion that the defendant no. 3 & 7 have not raised any unauthorized construction. The witness also answered that he has not placed on record any document to show that he is the owner of the property bearing no. 65-C.
23. On the perusal of the testimony of PW-1 and his cross- examination, it is clear that the witness is relying upon the photographs to establish the unauthorized construction as he has not brought on record any other proof or document to show that the unauthorized construction was being raised by the defendants. The plaintiff did not summon any witness from the MCD to establish the unauthorized construction. Also, the photographs relied upon by the plaintiff are not proved as per the law and it cannot be ascertained whether the said photographs pertains to the suit property. The plaintiff could not bring on record any proof to establish that unauthorized construction was raised by the defendant no. 2,3 & 7 after the filing of the present suit. As per the report of the MCD, they found that the owner of the flat no.65-D had unauthorizedly raised walls on the roof of the flat which were partly demolished.
24. The plaintiff could not bring on record sufficient evidence or proof to establish that unauthorized construction was raised at flat no. 65-D. Even if, the report of the MCD is considered and for the Page no. 15 of 19 Anand Kumar Vs. Anil Kumar sake of the arguments, it is presumed that defendants have raised unauthorized construction, it was essential on the part of the plaintiff to establish whether there was any infringement of his legal/easementary rights on account of the unauthorized construction.
25. If we carefully scrutinize the plaint, it will be seen that the major concern of the plaintiff was that his brother and the other defendants were trying to dispossess the plaintiff from the room above the flat bearing no.65-C & 65-D. There is no single averment as to how the legal rights of the plaintiff stands infringed or whether his easementary rights like right to light and fresh air will be obstructed by the unauthorized construction. The plaintiff could not establish his ownership with respect to flat no. 65-C. He has also admitted during cross-examination that no ownership documents were filed on record.
26. Thus, mere unauthorized construction does not entitle the plaintiff to seek the relief sought by him. Unauthorized construction undoubtedly will give locus to the municipal corporation to initiate action which on the basis of the record, was also taken. The plaintiff could not establish by bringing any cogent proof on record to show that demolition action was not taken and in the absence of the same, the plaintiff is not found entitled to the relief of mandatory injunction.
27. It will be worthwhile to note that plaintiff has himself raised Page no. 16 of 19 Anand Kumar Vs. Anil Kumar an extra room over the flat no. 65-C & 65-D and this fact has been stated by the plaintiff himself in the plaint. The construction of the said room by the plaintiff on the basis of the family settlement is not justifiable and is not within the parameters of law. The plaintiff could not show that he has also taken the permission for constructing the said room. The plaintiff is trying to show that the flats in question are DDA flats and additional construction cannot be done without the prior permission from the concerned authority and with the same logic, the construction of the additional room by the plaintiff was also in violation of the rules and regulations. Further, there is contradiction with regard to the facts of the construction of the room. In the plaint, plaintiff has stated that the room was constructed by him and during cross-examination he has stated that the room was constructed by his mother and it shows the change of stand of the plaintiff with aim to shed off his responsibility with respect to the construction of the additional room. Thus, it is clear that the plaintiff has not approached the court with clean hands. It is a cardinal principle of equity that "one who seeks equity must do equity". Therefore, the plaintiff is not entitled to seek the relief of injunctions on this ground as well.
28. Accordingly, the issue no. 2,3 & 4 are decided in favour of the defendants and against the plaintiff.
ISSUE NO. 629. The onus regarding the mis-joinder of the parties was upon Page no. 17 of 19 Anand Kumar Vs. Anil Kumar the defendants. The defendants have not lead any evidence to show that the occupants of the ground floor were necessary parties to the suit and how the decree if passed, will remain in-executable. In the absence of the same, the defendants have failed to prove the issue. Therefore, issue no.6 is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 730. In the counter-claim, the defendant no.3 has sought the decree of mandatory injunction to direct the plaintiff to remove the unauthorized construction from the flat no.65-C, first floor, DDA flats, Pandav Nagar, Delhi and to restore the same to its original condition. The onus to prove the above issue was upon the defendant no.3.
31. As discussed earlier, mere unauthorized construction is not sufficient to claim the relief of permanent injunction and the person affected, has to show the infringements of his legal rights. In the instant case, the defendant no.3 did not lead any evidence in support of his counter-claim. The cross-examination of the plaintiff is not enough to establish the unauthorized construction as claimed by the defendant no.3/ counter-claimant. The defendant no.3 has not only failed to establish the unauthorized construction but also failed in explaining as to how the same has infringed his legal rights in terms of the Rajesh Motwani's case(supra). Therefore, the defendant no.3 is not found to be entitled to the relief of mandatory injunction as Page no. 18 of 19 Anand Kumar Vs. Anil Kumar prayed by him. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
Relief
32. In view of the entire discussion as held above, the suit of the plaintiff as well as the counter-claim of defendant no. 3 are hereby dismissed. The plaintiff as well as the defendant no. 3 are not found entitled to the reliefs of permanent and mandatory injunctions.
33. Parties to bear the cost of the suit on their own.
34. Decree sheet be prepared accordingly.
35. File be consigned to the Record Room.
ABHISHEK
Pronounced in the open court (Abhishek KUMAR
Kumar)
on 11.05.2023 JSCC/ASCJ/GJ(WEST)
Digitally signed by
Delhi ABHISHEK KUMAR
Date: 2023.05.12
16:40:26 +0530
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