Delhi District Court
Parwati vs Pintoo @ Uppal Dulari on 28 November, 2022
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Suit No.:CS DJ 798/2017
CNR No.:DLST-01-007153-2017
IN THE MATTER OF :
Parwati
W/o Late Mukhtiyar Singh
R/o D1/159, JJ Colony
Madangir
New Delhi. .............Plaintiff
Versus
Pintoo @ Uppal Dulari
R/o D1/160, JJ Colony,
Madangir,
New Delhi.
............Defendant
Suit instituted on : 05.09.2017.
Arguments heard on : 16.11.2022.
Judgment pronounced on : 28.11.2022.
SUIT FOR RECOVERY, PERMANENT INJUNCTION
AND DAMAGES OF RS.5,00,000/-.
JUDGMENT
1. The brief facts of the case as stated in the plaint are that the plaintiff is the absolute owner of property bearing no. D-1/159 measuring 22-1/2 sq.yards, situated at Madangir, New Delhi consisting of ground floor (pacca lenter) and first floor (tin shed). Defendant is the owner and in possession of property bearing no.
CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 1 of 9 D-1/160, measuring 22-1/2 sq.yards, situated at Madangir, New Delhi, now constructed upto 2nd floor i.e. ground floor, first floor and second floor and the finishing work of the said property is going on. The defendant has demolished his aforesaid property by using big hammer due to which the property of the plaintiff was totally damaged/cracked and is in danger to live there as the same may be collapsed any time.
2. Plaintiff requested the defendant at the time of demolition of his aforesaid property not to use the big hammer for demolition and the defendant requested the plaintiff to fulfill the loss suffered by the plaintiff, therefore, plaintiff requested to pay the damages but the defendant delayed the matter on one pretext or the other.
3. Plaintiff gave written complaint against the defendant to stop the illegal and unauthorized construction carried upon the property no. D-1/160, measuring 22-1/2 sq. yards, situated at Madangir, New Delhi on 28.05.2017 but till date no action has been taken so far. After demolition of the aforesaid property, the defendant constructed ground floor, first floor and second floor and finishing work is going continuously. Plaintiff requested time and again to the defendant to pay the damages to the plaintiff but defendant did not pay any heed on the request of the plaintiff. Due to the illegal and unauthorized act and action, the property of the plaintiff has been totally damaged and plaintiff suffered damages of Rs.5,00,000/-. There is every apprehension that if the defendant succeed to complete the whole finishing CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 2 of 9 work of the suit property, the plaintiff will suffer irreparable loss in that event. Hence, the plaintiff has filed the present suit.
4. Written statement was filed on behalf of defendant wherein the defendant disputed and denied the contents of plaint. Dfendant in his written statement has taken preliminary objections that present suit is without any cause of action, plaintiff has not come to the court with clean hands and has suppressed the material facts from this Hon'ble court. Present suit is nothing except an instrument of extortion from the defendant and is liable to be dismissed. In parawise reply, it is admitted by the defendant that plaintiff is the owner of property bearing no. D-1/159 measuring 22-1/2 sq.yards, situated at Madangir, New Delhi and defendant is the owner of property no. no. D-1/160, measuring 22-1/2 sq.yards, situated at Madangir, New Delhi. The house of the defendant was old constructed house and there was need of some renovation work like re- plaster, paint etc. and no new construction was ever constructed by the defendant in the aforesaid property. It is denied by the defendant that defendant has demolished his aforesaid property by using big hammer and due to which the property of the plaintiff was totally damaged. Rest of the averments made in the plaint have also been denied.
5. No replication to the written statement of the defendant was filed by the plaintiff.
6. From the pleadings of the parties, the following issues CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 3 of 9 were framed on 04.05.2019 by the Ld. Predecessor of this Court:
ISSUES:
1. Whether the defendant has not raised any illegal and unauthorized construction on his property bearing no. D-1/160, measuring 22.5 sq.yards, situated at Madangir, New Delhi and was only doing renovation work in his property ? OPD
2. Whether no damage has been caused to the property of plaintiff bearing no.D-1/159, measuring 22.5 sq.yards situated at Madangir, New Delhi due to work carried out by the defendant in his property bearing no.D-1/160 at Madangir, New Delhi? OP Parties
3.Whether the plaintiff is entitled to decree of permanent injunction as sought in prayer (a) of the plaint?OPP
4.Whether the plaintiff is entitled to decree of Rs.5 lakhs as damages from the defendant?OPP
5. Relief.
7. In support of her evidence, the plaintiff examined herself as PW-1 and tendered her evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint in her affidavit. She has relied upon following documents:
Exhibit/Mark Nature of documents
Ex.PW-1/1 Copy of complaint dated 28.08.2017 before
Commissioner MCD, Green Park, New Delhi
Mark-A(stated as Photocopy of complaint dated 27.08.2017. x.PW1/2 in the affidavit) Ex.PW-1/2 Original Speed Post Receipt which has been affixed at photocopy of the complaint dated CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 4 of 9 27.08.2017.
Ex.PW-1/3 Site plan.
Ex.PW-1/4 (OSR) Copy of Electricity Bill.
Ex.PW-1/5(OSR) Copy of Ration Card. Ex.PW-1/6(OSR) Copy of Election ID Card of Sh. Mukhtiar Singh. Ex.PW1/7 (OSR) Copy of Election Card. Ex.PW1/8 (OSR) Copy of Aadhar Card.
Ex.PW1/9 (Colly) Photographs of the suit property.
No other witness has been examined by the plaintiff and PE was closed vide order dated 29.04.2022.
8. In his defence, the defendant has also examined himself as DW-1 and tendered his evidence by way of affidavit Ex.DW1/A and reiterated and reaffirmed the contents of the Written Statement in his Evidence by way of Affidavit.
9. This court has heard the arguments advanced by both the sides and carefully perused the record. Issues wise findings are as under:
ISSUE No.1:
Burden to prove this issue was on the defendant. Defendant examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A. In his evidence he deposed that his house was very old constructed house and there was need for some renovation work like re-plaster, paint, etc., and no new construction was ever constructed by him in his house. He further deposed that he never demolished his house by using big hammer. He further deposed that as he never constructed a new CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 5 of 9 house or demolished the old one so therefore, no question arises to cause any damage to the property of plaintiff.
During his cross-examination suggestion was given to DW1 by the Ld. Counsel for plaintiff regarding renovation of his house. No question was asked from DW1 regarding demolition of his house and consequential loss/ damage to the property of plaintiff. So, it is admitted fact that no fresh construction was carried out by the defendant in his property bearing no.D1/160, J. J. Colony, Madangir, New Delhi. Therefore, this is issue is decided in favour of defendant.
ISSUE No.2:
Burden to prove this issue was on the parties. Plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/A. She deposed that she is the owner of the property bearing no.D-1/159, measuring 22.5 sq.yards situated at Madangir, New Delhi and defendant is owner and in possession of property bearing no.D-1/160 at Madangir, New Delhi. She further deposed that defendant has demolished his property bearing no. bearing no.D-1/160 at Madangir, New Delhi by using big hammers due to which her property was totally damaged. She further deposed that at the time of demolition of the property by the defendant she has requested the defendant not to use big hammers for demolition of his property and defendant assured her to fulfill the losses suffered by her. She further deposed that she has given written complaint against the defendant to stop the illegal and unauthorized construction carried out in property no. bearing no.D-1/160 at Madangir, New Delhi but MCD officials CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 6 of 9 did not consider her complaint.
On the other hand, DW1 denied the same in his evidence by way of affidavit Ex.DW1/A by deposing that his house was very old constructed house and there was need for some renovation work like re-plaster, paint, etc., and no new construction was ever constructed by him in his house. He further deposed that he never demolished his house by using big hammer. He further deposed that as he never constructed a new house or demolished the old one so therefore, no question arises to cause any damage to the property of plaintiff.
Plaintiff neither examined any other witness nor filed any document to prove that due to construction/ renovation on defendant's property her house got damaged. Therefore, this issue is decided in favour of defendant.
ISSUE No.3:
Burden to prove this issue was on the plaintiff. Plaintiff in her plaint prayed to pass a decree of permanent injunction against the defendant, thereby restraining the defendant, his legal heirs, successors, executors, representatives, assignees and or anybody else to do the finishing work of the property bearing no. D-1/160 at Madangir, New Delhi.
Perusal of record shows that case of plaintiff is that defendant demolished his property bearing no. D-1/160 at Madangir, New Delhi using big hammers and due to which her property got damages or cracks. There is no pleading regarding the renovation of the property bearing no. D-1/160 at Madangir, New Delhi by the defendant. On the other hand, defendant in his CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 7 of 9 cross-examination admitted that he has renovated his house bearing no. D-1/160 at Madangir, New Delhi. As renovation work is already completed by defendant. Therefore, prayer (a) of the plaint becomes infructuous.
ISSUE No.4:
Burden to prove this issue was on the plaintiff. Plaintiff deposed in her evidence by way of affidavit Ex.PW1/A that she is the owner of the property bearing no.D-1/159, measuring 22.5 sq.yards situated at Madangir, New Delhi and defendant is owner and in possession of property bearing no.D-1/160 at Madangir, New Delhi. She further deposed that defendant has demolished his property bearing no. D-1/160 at Madangir, New Delhi by using big hammers due to which her property was totally damaged. She further deposed that at the time of demolition of the property by the defendant she has requested the defendant not to use big hammers for demolition of his property and defendant assured her to fulfill the losses suffered by her. She further deposed that she has given written complaint against the defendant to stop the illegal and unauthorized construction carried out in property no. bearing no.D-1/160 at Madangir, New Delhi.
During her cross-examination she deposed that she does not remember when the defendant had started construction and when it was finished. She further deposed that she had lodged the complaint against the defendant in MCD but MCD officials did not consider her complaint. She further deposed that she did not CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 8 of 9 obtain any report from loss assessor/ expert disclosing the damage caused by the defendant. To prove her case she has filed on record some photographs, from the photographs it is not clear whether these photographs are of plaintiff's property or of some other property. Plaintiff neither examined any other witness nor filed any document to prove that due to construction on defendant's property her house got damaged and she suffered damages of Rs.5,00,000/-. As plaintiff has failed to prove this issue. Therefore, this issue is decided against the plaintiff.
RELIEF In view of the fact that issues no.1 & 4 are decided against the plaintiff, Therefore, plaintiff is not entitled for any relief as claimed in the plaint. Hence, present suit of plaintiff is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Typed to the dictation directly,
corrected and pronounced in the Digitally signed by DR
open Court on 28.11.2022. DR HARDEEP HARDEEP KAUR
KAUR Date: 2022.11.28
15:50:37 +0530
(Dr. Hardeep Kaur)
Additional District Judge-04
South District, Saket Courts, New Delhi.
CS DJ 798/17 PARWATI VS PINTOO @ UPPAL DULARI PAGE 9 of 9