Delhi District Court
JsccCumAscjCumGj (Nw) : District ... vs Municipal Corporation Of Delhi on 5 May, 2012
IN THE COURT OF SH. SANJAY JINDAL
JSCCcumASCJcumGJ (NW) : DISTRICT COURTS
ROHINI : DELHI
Unique Case ID No. : 02404C0036762008
Suit No. 95/08/04
In re:
1 Smt. Dhanpati Devi,
W/o Late Shri Partap Singh S/o Late Jhunda Ram,
2 Sh. Vinay Kumar
S/o Late Shri Partap Singh
3 Sh. Rajesh Kumar,
S/o Late Shri Partap Singh
4 Sh. Rajpal,
S/o Late Shri Partap Singh
5 Sh. Rampal
S/o Late Shri Partap Singh,
All Residents of :
H. No.1787A near Water Tank,
Narela Road, Alipur, Delhi110036
6 Sh. Mool Chand,
S/o Late Sh. Jhunda Ram,
R/o : H. No.1787, near Water Tank,
Narela Road, Alipur, Delhi110036 ............... Plaintiffs
Versus
1 Municipal Corporation of Delhi
Through its Commissioner,
Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 1/8
Town Hall, Chandni Chowk, Delhi.
2 MCD( Education Department),
Through its Director,
Office at ZAC, Narela, Delhi. ..........Defendants
Date of Institution of the Suit : 19.05.2004
Date of Reserving Judgment : 05.05.2012
Date of Judgment : 05.05.2012
JUDGMENT: 1 This is a suit for permanent injunction filed by the plaintiffs against the defendants.
2 The case of the plaintiffs is that they are residing at h. No. 1787A at village Alipur, Delhi situated at Lal Dora of Village Alipur, Delhi in Khasra No. 894. It is stated that the property in question is an inherited property and the main entrance and outgoing gate and windows of this house are situated in street which goes to the school. It is stated that the said street is being used by the plaintiffs and their parents for the last 5055 years for their ingress and outgress of the property and plaintiffs are using the easementry rights for the last 5055 years. It is further stated that there is no other way to go into the property of the plaintiffs except the said street. It is further alleged that the land of the school was donated by the people of the mohalla and now the school administration wants to shift Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 2/8 their gate from the end of the street to the front/ opening of the street by merging the street in the school itself and for that purpose they want to make a wall of bricks just in front to the house of the plaintiffs as well as the shop in the adjoining properties. It is stated that on 18.05.2004 the MCD official began their illegal act and forcibly closed the shops which open in the street. It is stated that the MCD as well as the school administration never sent any notice in this regard. It is further stated that the plaintiffs in no manner have created any obstacle in the said street and if the said wall is constructed, the plaintiffs will not be in a position to enter into their premises and they will suffer an irreparable loss which cannot be compensated in terms of money. Hence this suit for restraining the defendants from constructing the pucca wall in front of the house of the plaintiffs.
3 In the WS, the defendants have taken certain preliminary objections and controverted the plaint of the plaintiffs. It is contended on behalf of the defendants that the plaintiffs have no locus standi to file the present suit as the plaintiffs have no right, title or interest over the land in question, and that the defendants/MCD is the legal owner of the land in question which was donated by the Gram Sabha of the area to be used for the purpose of MCD primary School (Girls), Alipur. It is further averred that in order to provide safe entry to the students of the school, a wall has Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 3/8 been raised on the side of the passage which is exclusively in possession of the defendant.
4 On the basis of the pleadings, following issues were framed on 03.08.2006 :
i) Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
ii) Relief.
6 At the time of evidence, the plaintiffs have examined Sh. Rajpal Maan as PW1, Sh. Mool Chand as PW2, Sh. Raj Singh as PW3, Sh. Lachhman as PW4 while on the other hand, one Ms Sujata Malik, Assistant Education Officer, Education Department, Narela Zone, Delhi has been examined as DW1.
7 I have heard the counsel for the parties and perused the record carefully and my Issue wise findings are as under :
Issue No. 1
The onus was on the plaintiffs to show their entitlement qua relief of permanent injunction. To prove their case, the plaintiffs have examined four witnesses. PW1 Sh. Raj Pal and PW2 Sh. Mool Chand are the plaintiffs in this case with others. They have tendered their affidavits in support of their case and both of them have been duly cross examined Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 4/8 on behalf of the defendants. PW3 Sh. Raj Singh and PW4 Sh. Lachhman are the villagers/ independent witnesses who tendered their affidavits in support of the case of the plaintiffs and they have also been duly cross examined on behalf of the defendants.
8 To rebut the case of the plaintiffs, the defendants examined, Ms. Sujata Malik, Assistant Education Officer as DW1. She has also been cross examined on behalf of the plaintiffs.
9 During the course of the proceedings of the case, one local commissioner was also appointed in this case who filed his report after inspection of the site. It is also matter of record that no objections were ever raised on behalf of the defendants to the report of the local commissioner. The local commissioner has given his view that on verification and inspection of the site, there was no other entrance or exit for the property No. 1787A (property of the plaintiffs) except the gali in question.
10 So far as the evidence led by the plaintiffs is concerned, it has been duly established that the plaintiffs are residing in a house situated in the gali in dispute and they have been using the said gali for many years. It is also clear from the evidence that it is not disputed that the land Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 5/8 pertaining to school was earlier given to defendants by the Gram Sabha. It is also clear from the record that the main gate of the school is situated at the end of the gali and the street in dispute is presently being used commonly by the students of the school pertaining to the defendants and the occupants of the other properties adjoining the street. In view of the admitted possession of the plaintiffs and the proved fact that the gali is being used commonly, it can be said that the plaintiffs have discharged the initial onus lying upon them. The defendants have the shifted onus to prove that they have exclusive right qua the gali in dispute in any capacity including the alleged donation by the Gram Sabha. The case of the defendant is that the gali in dispute was donated to the school by the Gram Sabha. No evidence to this effect has been led by the defendants. It is argued by the counsel for the defendants that onus was on the plaintiffs to show that the gali in dispute has not been donated by the Gram Sabha to the defendants but such a contention is not found to be forceful as the plaintiffs cannot be called upon to prove a negative fact and the onus was on the defendants to prove in a positive manner that the concerned land has been donated by the Gram Sabha to the defendants. The DW1 examined on behalf of the defendants has made only oral submissions and her testimony is not supported by any document or any other independent evidence. The DW1 has made many claims but the same are found to be Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 6/8 without any basis. Similarly, several useless and contradictory questions/ suggestions have been put to the plaintiffs' witnesses on behalf of the defendants regarding description of the suit property which lead nowhere as the description of the suit property is not much in dispute. Simply because, some sort of hindrance is faced by the students while passing through the gali, the defendants have no right to construct the wall and depriving the plaintiffs their access to the gali in dispute. It is admitted case of the defendants that they have taken steps for construction of wall as alleged by the plaintiffs, so it can be said that cause of action is also there in favour of the plaintiffs.
11 During course of arguments, one objection regarding bar of res judicata has also been raised on behalf of the defendants and a reference has been made to the Suit No. 54/96 which was dismissed in default and one other suit which was dismissed as withdrawn on 16.02.2001. But such an objection is not sustainable as the documents/orders pertaining to above mentioned cases have been proved on record. Moreover, it is clear from the record that present suit has been filed on different cause of action. 12 In view of above facts and circumstances, it is clear that the plaintiffs have proved all the basic facts as per their case either by way of admissions on the part of the defendants or by way of positive evidence. Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 7/8 Hence, Issue No.1 is decided in favour of the plaintiffs and against the defendants.
17 Relief In view of the findings on the issue No.1, the suit is decreed with costs qua relief of permanent injunction and the defendants are restrained from constructing a pucca wall in front of the house of the plaintiffs i.e., H. No. 1787A and Property No. 1787, near Water Tank, Narela Road, falling in Khasra No. 894, village Alipur, Delhi and also from fixing the gate of School at the beginning point of the gali as shown in the site plan Ex.PW1/1.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open Court ( Sanjay Jindal)
on 05.05.2012 JSCC/ASCJ/GJ(NW)
District Courts : Rohini : Delhi
Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 8/8
Suit No. 95/08/04 Smt. Dhanpati Devi & Ors. Vs. MCD & Anr. 9/8