Delhi District Court
Deepchand Saini And Anr vs Surender Jain And Ors on 23 September, 2025
IN THE COURT OF SH. MAYANK MITTAL, LD. ASCJ-CUM-
JSCC-CUM GUARDIAN JUDGE, SOUTH WEST DISTRICT,
DWARKA, NEW DELHI
Suit No. 779/17
CNR No. DLSW03-001174-2017
In the matter of :-
1. Sh Deep Chand Saini
s/o Sh Kundan Lal,
r/o RZ-4, Hira Park,
Sabji Mandi, Bahdurgarh road,
Najafgarh, New Delhi.
2. Sh Rajender Singh
s/o Sh Kundan Lal,
r/o RZ-2, Hira Park,
Sabji Mandi, Bahdurgarh road,
Najafgarh, New Delhi.
........Plaintiffs
VERSUS
1. Sh Surender Jain
s/o Sh Jag Ram Jain
r/o RZ-12, Naya Bazaar,
Najafgarh, New Delhi-110043.
2. Sh Satish Jain
s/o Sh Jag Ram Jain
r/o RZ-12, Naya Bazaar,
Najafgarh, New Delhi-110043.
3. The Commissioner
South Delhi Municipal Corporation.
Najafgarh, New Delhi
4. SHO
PS Baba Haridas Nagar
Najafgarh, New Delhi
CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 1 of 42
SURENDER JAIN AND ORS
5. Sh Satish
s/o Sh Ram Kumar
r/o Plot no. 2 & 3,
Hira Park, Sabji Mandi,
Bahdurgarh road,
Najafgarh, New Delhi.
6. Sh Bittoo
s/o Sh Roshan Lal,
r/o Plot no. 2 & 3,
Hira Park, Sabji Mandi,
Bahdurgarh road,
Najafgarh, New Delhi.
7. Sh Naresh Jain
s/o Unknown
r/o Plot no. 2 & 3,
Hira Park, Sabji Mandi,
Bahdurgarh road,
Najafgarh, New Delhi.
.....Defendants
Date of institution : 11.07.2017
Reserved for Judgment : 21.07.2025
Date of decision : 23.09.2025
Suit for Permanent and Mandatory Injunction
JUDGMENT
1. This is a suit for Permanent and Mandatory Injunction filed by plaintiff against defendant no. 1 and 2 restraining them, for illegal and unauthorized construction and encroachment over the street/gali towards the west side of plaintiffs house by installing gate/shatter, window etc. and to direct the defendants to remove illegal and unauthorized construction and encroachment over the street/gali, to restrain defendants no. 1,2 and 7 from raising any further construction in any portion of suit property as well CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 2 of 42 SURENDER JAIN AND ORS in portion shown in red colour in site plan without getting approval of sanction plan and to restrain defendant no. 5 and 6 from misusing any portion of the suit property and to direct the defendants to remove the entire unauthorized and illegal construction in the suit property or to direct defendant no. 3 and 4 to demolish the entire unauthorized and illegal construction raised in the suit property.
2. Plaintiffs' Case The case of plaintiff is that plaintiff's mother i.e. Late Smt. Lila Devi was having agriculture land 10 bigha 6.50 biswa in Khasra No.12//18/2(3-
04), 12//17 (02-08), 12//24/1(03-1.5) and 12//13 (1-13) in revenue estate Najafgarh, New Delhi. Thereafter after passing of time and development in the locality the Plaintiff's mother carried out plotting the said land approximately 34 years before. That the defendant no. 1 and 2 jointly had purchased a plot 446 Sq. Yard from the plaintiff's mother at that time i.e. 34 years before out of Khasra No.12//24/1. Thereafter, the defendant no. 1 & 2 had made boundary wall of the said plot which was three side open i.e. North, South and West. At that time even the defendants No.1 & 2 installed its gate on West side & at East side the plaintiffs have its plot of 1000 Sq. Yard. Hence, the following is the position of at the time of selling of the plot:-
East: 1000 sq yards West: Gali North: Gali South: Gali
That thereafter by a family settlement the plaintiffs had left 10 feets wide Gali of the east side of defendant no. 1 &2 plot i.e. on the West side CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 3 of 42 SURENDER JAIN AND ORS of the plaintiff's plot. The plaintiffs divided the rest plot equally and constructed his house in 1981.That the 10 feet wide gali is the private Gali of the plaintiffs for their personal use only. That the plaintiffs are using the said gali since 1981 without any hindrance. On 04.07.2017 the defendant no. 1& 2 had demolished the wall and on 06.07.2017 they tried to establish Gate in the East side of his plot. The plaintiffs had raised objections that the gali is a private gali and the plaintiffs had left the same only from his plot for his personal use only. Hence, the defendant no. 1 & 2 have no right to install gate in his private gali. That when the defendant no. 1 and 2 have not heard the voice of the plaintiff then the plaintiffs made a call on 100 police control room. When no action has been taken by police officials then written complaints have been made to defendant no.4 vide DD No.36B dated 06.07.2017 and defendant no. 4. That the defendants remove the said gate but the defendant no. 1 &2 are still trying to install the gate on the East side of the plot illegally and arbitrary. The defendant no. 1 and 2 are doing illegal and unauthorized construction of the plot without any sanction plan. That the defendant no.1 & 2 further trying to encroach the Gali. Then the resident of "Lokesh Park and Hira Park Resident's Welfare Association"
raised objections in towards the unauthorized and illegal construction and the encroachment made by them on the road. The residents are in trouble to pass from the Gali. Thereafter, the association also made a complaint to the DCP, Outer District. That the plaintiffs are using the said private Gali from last more then 25 years without hindrances. The defendant no. 2 do not have right to installed any gate or even window on his private Gali. The defendant no.1 & 2 are raising illegal and unauthorized construction on his plot without any sanction plan without any rights and trying to open gate on the land of the plaintiffs. The plaintiff is under apprehension that the said CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 4 of 42 SURENDER JAIN AND ORS illegal, unauthorized construction and encroachment by the defendant no. l over the street/gali will effect on the rights of the plaintiffs and further create hindrance and obstacle on passage and to park vehicle by the plaintiff as well as other residents of the street and the said illegal act is violate and infringement over the easement rights of the plaintiff. The defendants no. 1, 2 & 7 have been raising unauthorized, illegal and against the building bye laws and without bothering that the same is an imminent danger for the neighbours and general public. The officials of defendant no.3 are acting in collusion and connivance with the defendants no.1 & 2 and when the plaintiff and others approached them they told that there is already permission of the court to raise the construction, hence they cannot initiate any action even if they are raising unauthorized and illegal construction in the portion. That the defendants no. 1 & 2 without considering the safety of others and without complying the building bye laws and without getting sanction of any site plan from defendant no.3, have been regularly raising unauthorized and illegal construction in the property measuring 446 Sq. Yds. Out of Khasra No. 24/12 & 24/1 in revenue estate of Najafgarh, New Delhi, hence they are liable to restrain from raising further construction as well as liable to be directed to remove the unauthorized construction raised in the suit property. That the defendant no. 1 and 2 have not stopped the illegal construction despite various requests and complaints of plaintiff to defendant no. 3/MCD. That the defendants no.1 & 2 have also raised the unauthorized construction thereby constructing, basements, shops and multi-storey building in the portion of the suit property without getting any plan sanction from the defendant no.3 MCD and the same are totally against building bye-laws. The defendants no. 1 & 2 have also been constructing the shops and raising same structure CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 5 of 42 SURENDER JAIN AND ORS totally against building bye-law. Hence the present suit.
3. Defendants' Case
(i) Amended written statement has been filed on behalf of defendant no. 1 and 2 stating that the plaintiffs have not approached to this Hon'ble Court with clean hands and have concealed the true and material facts from this Hon'ble Court. The plaintiffs are guilty of suppression of true facts and misleading this Hon'ble Court otherwise the actual facts and circumstances are very well within the knowledge of the plaintiffs who deliberately concealed the relevant information as well as documents which are necessary and essential for the disposal of the present dispute between the parties. It is submitted that the property in question i.e. the plot of land of 446 sq. yards was purchased by Shri Mahender Kumar Jain, S/o Shri Gyan Chand Jain, R/o 939, Near Jain Dharamshala Gali, Najafgarh, New Delhi who is uncle of the defendant no. 1 and 2 way back in the year 1985 vide registered Sale Deed from Smt. Lali W/o Shri Kundan Lal i.e. mother of the plaintiffs. This fact is not in dispute and it is admitted by the plaintiffs, however, the plaintiffs have deliberately mentioned that the property was purchased by the answering defendants whereas the said property was purchased by the uncle of the answering defendants and later on Shri Mahender Kumar Jain transferred the said property in favour of defendant no.2 Shri Satish Kumar Jain and later on the defendant no. 2 Sh. Satish Kumar Jain transferred the said property in favour of the defendant no. 1 Shri Surender Kumar Jain. At that time when the property was sold by Smt. Lali to Shri Mahender Kumar Jain she also gave a declaration in writing that the property is four side open. The boundaries of the said property as declared by Smt. Lali and mentioned in the said declaration are reproduced herein:-
CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 6 of 42 SURENDER JAIN AND ORS
1. East: 10 Feet Lane (Towards Najafgarh Village)
2. West: 20 Feet Road (Towards Bahadurgarh)
3. South: 6 Feet Nala (On main Bahadurgarh Road)
4. North: 10 Feet Lane (Towards Nangloi Village) That there is no basis and substance in the dispute raised by the plaintiffs. Moreover, there is no dispute at all with regard to the ownership of the entire property of 446 Sq. yards. The only dispute raised by the plaintiffs is that the answering defendants have no right to install gate and use the gali falling in East side of their property and West side of the property of the plaintiffs. Nowhere they have mentioned any such thing that how the gali is their private gali. No proof has been placed on record that it is meant for their private use only. Moreover, as per the site plan and the photographs filed by the plaintiffs themselves the same is a common passage which is being used by other residents i.e. by public at large including by those who have their property in the said gali. This fact is duly admitted by the plaintiffs. When a Gali is being used by all the residents, locality people, colony members as well as public at large why only the answering defendants have no right to install their gate in the said gali and to use the same as the other persons are using it, more so the way the plaintiffs are using the said Gali. The Gali is under Municipal Corporation and the answering defendants are enclosing the documents whereby the concerned Municipal Corporation allotted the tender for construction of the road/Gali and concerned Municipal Corporation paid the amount for construction of the road/Gali, therefore, the Gali is common Gali and it is meant for everyone and plaintiffs have no right, no exclusive claim over the said Gali. That the suit filed by the plaintiff is also liable to be dismissed in CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 7 of 42 SURENDER JAIN AND ORS as much as the plaintiffs have made Commissioner, South Delhi Municipal Corporation as one of the defendants as well as SHO, Police Station Hari Dass Nagar, however, the plaintiffs before arraying them as defendants have not issued any notice under Section 80 of CPC which is mandatory requirement for filing any case against any Government agency. Nowhere the plaintiffs have filed any application under Section 82 of the waiving of the same. This defect goes to the roots of the case of the plaintiffs. That the suit as filed by the plaintiffs is also bad in as much as the defendant no. 2 has already transferred the property in favour of the defendant no. 1. Be that as it may it is the right of any person, locality member, owner of house falling on the said Gali to use the same as it is being used by the public at large. That the suit as filed by the plaintiffs is misconceived, misplaced and the same is liable to be dismissed in as much as the plaintiffs have come against installing of gate and shutter as illegal and unauthorized construction, the plaintiffs have themselves running commercial activity in the said Gali as in the photographs the same is duly apparent and they have opened their gate, shutter and running their showroom as well as departmental store in the said Gali and now they are saying that it is unauthorized construction and encroachment over the said Gali. The answering defendants are installing their gate and shutter in their property they will open in the said Gali and there is no encroachment in the Gali.
Moreover, the plaintiffs are encroaching upon the said Gali and maximum articles of their shop are lying in the said Gali which is being used as store. As far as the subject matter of the suit that the Gali in question the property belongs to the answering defendants and name mentioned in the application are of the other occupants which have their portions towards West side of the property of the answering defendants where the plaintiffs have no CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 8 of 42 SURENDER JAIN AND ORS concern. As far as Shri Satish S/o Ram Kumar is concerned he has his portion towards west side in the same manner Shri Bittoo has also his portion towards west side of property of the answering defendant as far as Naresh Jain is concerned he has no portion in the property of the answering defendants. The name of aforesaid persons has been included just to prolong the proceedings and to waste some dates for clarification and to deviate this Hon'ble Court from the main issue and to introduce such things which are immaterial, irrelevant and which were not mentioned by the plaintiffs. It is specific case of the plaintiffs that they have been using the Gali in question as public passage since 1981. The property which is now with the answering defendants was purchased from the predecessors in the interest of the plaintiffs in the year 1985 and since that the time the Gali in question has been used as public passage by all the residents including the answering defendants and other occupants even the plaintiffs have themselves not only admitted that Gali in question as public passage. The plaintiffs being the office bearers in the Resident Welfare Association of the area represented to the Government/Concern authority at the time when the applications were forwarded for regularization of the colony alongwith other documents a map was also enclosed showing the Gali in question to be public passage. The plaintiffs signed the said request accepted it, confirmed and also wanted the same to be accepted by the Government. The property in question is falling in khasra no. 24/1. Moreover, the property is duly identified by the property number, location etc. Moreover, there is no dispute with regard to the measurement of the property as well as ownership of the property. It is submitted that the Gali is a common Gali and all the residents, colony members and public at large are using the said Gali since beginning. The same way the answering defendants have their CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 9 of 42 SURENDER JAIN AND ORS right to use the Gali like the other persons, moreover, like the plaintiffs. It is submitted that there is no illegal, unauthorized construction, there is no encroachment by the answering defendants. The answering defendants are not causing any trouble or hinderance to even a single person in the use and enjoyment of the said Gali. It is only the plaintiffs who are creating the troubles and problems to the answering defendants. No action is called for in this regard rather the plaintiffs are required to be restrained from any such activity thereby depriving the answering defendants from using and enjoying the said Gali the way the plaintiffs are using. The suit is only on the Gali. Moreover, there cannot be any claim of the plaintiffs on the property of the answering defendants. It is the rights of answering defendants to sell it, to rent it out, to construct the same. As far as the role of Naresh Jain is concerned he has no portion in the property of answering defendants, therefore, the question of any construction does not arise at all moreover, the plaintiffs are not concerned with regard to the construction by the answering defendants in their property as it is not encroachment in the Gali in question as well as in any property of the plaintiffs. The plaintiffs, their relatives, family members have number of properties in the said area and none of them followed any building bye-laws. The plaintiffs very intelligently are not filing any complaint against the same for legal action, however, their only concern is how they can extract money from the answering defendants for this purpose only the present suit has been filed.
(ii) Defendant no. 4 to 7 were proceeded ex parte vide order dated 04.10.2021.
4. Replication has been filed by the plaintiff to the written statement of the defendant no. 1 and 2 wherein the contents of the plaint have been CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 10 of 42 SURENDER JAIN AND ORS reiterated and the contentions of the defendant in their written statement have been denied except the admissions made.
5. Issues After completion of pleadings, vide order dated 28.03.2018, the following issues were framed :
1 Whether the suit of the plaintiffs is barred by section 41 of Specific Relief Act as plaintiffs are having no interest in the subject matter and suit is without any cause of action? (OPD-2).
2 Whether the plaintiffs are entitled for a decree of permanent injunction in their favour and against defendants no. 1 & 2, as prayed for? (OPP).
3 Whether the plaintiffs are entitled for a decree of mandatory injunction in their favour and against the defendants, as prayed for? (OPP).
4 Whether the Gali in question ie. East side of the property of defendant and west side of the property of plaintiff is a common passage and not a private Gali? (OPD).
5 Relief.
After amendment, following issues were again framed on 06.07.2022.
1 Whether suit is liable to be dismissed for misjoinder of parties? OPD-5 & 6 2 Whether the plaintiff not come to court with clean hands? OPD1 & 2 3 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for in prayer clause (i)? OPP 4 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for in prayer clause (ii)? OPP 5 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for in prayer clause (iia)? OPP CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 11 of 42 SURENDER JAIN AND ORS 6 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed in prayer clause (iib)? OPP 7 Whether the plaintiff is entitled for cost of suit? OPP 8 Relief.
After the conclusion of final arguments, on seeking clarification by the court, it was submitted by ld counsel for both the sides that both the parties had understanding that issues framed on 06.07.2022 were additional issues and were in addition to issues earlier framed on 28.03.2018 and both the parties have led evidence on the issues framed on 28.03.2018 and 06.07.2022. For the sake of convenience, the issues which is to be decided by court are hereby reproduced and re-numbered (after deletion of repetition of issues:
1 Whether the suit of the plaintiffs is barred by section 41 of Specific Relief Act as plaintiffs are having no interest in the subject matter and suit is without any cause of action? (OPD-2).
2 Whether the plaintiffs are entitled for a decree of permanent injunction in their favour and against defendants no. 1 & 2, as prayed for? (OPP).
3 Whether the plaintiffs are entitled for a decree of mandatory injunction in their favour and against the defendants, as prayed for? (OPP).
4 Whether the Gali in question ie. East side of the property of defendant and west side of the property of plaintiff is a common passage and not a private Gali? (OPD).
5 Whether suit is liable to be dismissed for misjoinder of parties?
OPD-5 & 6 6 Whether the plaintiff not come to court with clean hands? OPD 1 & 2 7 Whether the plaintiff is entitled for a decree of permanent injunction CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 12 of 42 SURENDER JAIN AND ORS as prayed for in prayer clause (iia)? OPP 8 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed in prayer clause (iib)? OPP 9 Whether the plaintiff is entitled for cost of suit? OPP 10 Relief.
6. Plaintiff's Evidence
(i) Sh Deep Chand Saini was examined as PW-1, who tendered his affidavit in evidence Ex. PW1/A has stated and deposed on lines of plaint in his affidavit of examination in chief. He has relied upon the documents the following documents:
a. Mark-A is copy of Khatauni (mentioned as Ex. PW-1/1 in affidavit and later de-exhibited)) b. Mark-B is copy of complaint given to SHO (mentioned as Ex. PW-1/2 in affidavit and later de-exhibited) C. Mark-C is copy of complaint to DCP (mentioned as Ex. PW-1/3 in affidavit and later de-exhibited) d. Mark-D is copy of complaint to DCP made by RWA (mentioned as Ex. PW-1/4 in affidavit and later de-exhibited) e. Ex. PW-1/5(colly) are photographs.
f. Mark-E is copy of complaint to MCD (mentioned as Ex.PW-1/9 in affidavit and later de-exhibited) During his cross examination by Ld counsel for defendant no. 1 and 2 he stated that he has filed the present suit for the gali and the same is their private gali. He stated that the gali in question had been in use as a gali only since the very begining. He stated that he was not aware whether CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 13 of 42 SURENDER JAIN AND ORS any proof had been filed on the court that the gali in question is our private gali. He voluntaried that it may be in the knowledge of his counsel. He stated that his mother had sold other plots also in the said area to other persons. He affirmed the suggestion that for other plots the proper gali were given for the use of occupants of other plots. He stated that the gali for other plots were also given from their own property by his mother. He stated that they have not filed any other case with respect to any other gali in the area left by his mother claiming the same to be their private gali. He stated that he cannot tell the directions of the gali in question from his house but it is in front of their houses. He stated that they had 5 shops facing the said gali and the opening of the shops is in the said gali only. He stated that in the gali in question no person from the locality comes and that the gali in question is thorough from both sides, one side the gali merges with other gali and other side it merges with main road. He again stated that one end of gali is opening towards main road & another and thereof is coming to his house which further turns the left side towards the house of his younger brother Rajender and the left side passage of his house leads to sabzi mandi. He stated that the gali is not the bronx. He stated that his house and the house of Rajender are on their personal land and 10 feet gali towards house of Rajender is not the thorough passage. He stated that the colony people come and purchase items from our shop, however they come after taking a long round. He stated that the Hira Park Colony where his house is situated is approved by Govt. He stated that he has never been the office bearers in the Residents Welfare Association of their colony. He stated that the site plan of the colony was with previous pradhan who had since expired. He stated that the gali in question has not been shown a gali in the map of their approved colony. He denied the suggestion that the gali CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 14 of 42 SURENDER JAIN AND ORS in question had been shown a public gali in the map of the colony. He stated that the property of the defendant no. 1 was sold by his mother in the year 1984. He stated that he does not remember to whom his mother sold the said property which is now in ownership of defendant no.1. He again said that the said property was sold to uncle of defendant no. 1 namely Sh Mahender Jain and Sh Mahender Jain sold it to defendant no. 2 and defendant no. 2 sold it to defendant no. 1. He stated that the said property is a plot of land and defendant no. 1 is owner of the same. He affirmed the suggestion that there are two shops in the property of defendant no. 1, however the same were sold by him, the shops facing the road 20 feet wide.
He denied the suggestion that their houses are on their agricultural land. He stated that he is illiterate and he does not remember as to when their settlement took place with regard to leaving the gali in question for their personal use.
(ii) Sh Rajender Saini was examined as PW-2 who tendered his affidavit in evidence Ex. PW2/A has stated and deposed on lines of plaint in his affidavit of examination in chief.
During his cross examination by ld counsel for defendant no. 1 and 2 he affirmed the suggestion given by ld counsel for defendant no. 1 and 2 that he had put his signatures on his evidence of affidavit having read and understood the same. He stated that he was studied upto 5th class and do not understand English language. He stated that he cannot say as to from where the boundaries of the property of defendant no.1 has been mentioned in his evidence of affidavit. He stated that he is not aware of any family settlement mentioned in his evidence of affidavit. He stated that the 10 ft wide gali mentioned in para no.4 of his affidavit of evidence was measured CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 15 of 42 SURENDER JAIN AND ORS by persons from the court. He stated that the said gali has been declared by the court to be their private gali but he has not seen the said document so far. He affirmed the suggestion given by ld counsel for D-1 and 2 that the said gali is open from both sides. He stated that the said gali is in use by his family person and no person from the colony passes through the said gali. He stated that they had 4 shops of their family in the said gali having opening in the said gali. He stated that the people living in the colony purchased their regular items from their shop. He stated that they do not allow the person from outside to pass through the said gali. He stated that his colony people can use the gali. He stated that the name of the colony is Lokesh Park. He stated that the colony is approved by the govt. from last 8- 10 years. He stated that the gali in question had not been shown as gali in the map of colony. He stated that he had the plan of colony. He stated that the plan was made by Patwari in the year 1981-1982. He stated that he had no plan/map of colony since it had been approved. He stated that the defendants put the gate in their property opening gali in question in the year 2017 but later on it was removed. He denied the suggestion given by ld counsel that averments made in para no. 8 of his affidavit of evidence are without his instruction.
He stated that the residents of Lokesh Park and Heera Park Residents Welfare Association had not filed any complaint against the defendant. He stated that the construction raised by the defendants had been declared unauthorised by MCD. He stated that he had not seen any such order from the MCD. He stated that no person in the colony raised construction of his house as per sanctioned plan from the concerned department. He affirmed the suggestion that the plot no. 2 and 3 measuring 446 sq. yds, was sold by his mother to uncle of defendant Sh. Mahender who in turn sold it to CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 16 of 42 SURENDER JAIN AND ORS defendant no.2 and defendant no. 2 sold it to defendant no.1. He stated that he had no objection if defendant raises construction in his property. He stated that the defendant had not raised encroachment in the gali in question however raised wall in his own property.
He stated that no person from the colony park their vehicle in the gali in question. He voluntarily stated that their family people park their vehicle in the said gali. He denied the suggestion that the averment made in para no.11 evidence affidavit are without his instructions. He stated that he has not gone through the order dated 30.10.2017 as mentioned in his evidence affidavit. He stated that he has not gone through the application for clarification filed by defendant no.1 and 2.
He stated that the order dated 16.12.2017, application filed on 28.03.2018 by defendant no.1 and 2, order dated 28.03.2018 are not part of his plaint. He stated that MCD had declared the construction raised by defendant illegal construction and dangerous construction in the year 2017. He stated that he had never read or seen the above order passed by MCD. He stated that he had no proof to show the collusion / connivance of MCD official with defendant and he had no knowledge of building bye laws of the MCD as mentioned in my evidence affidavit. He stated that defendants had constructed the basement in their property and the court file is given to the witness to find out the proof of construction of basement with the help of his counsel but there is no such proof available in the record. He stated that he is not aware about the directions of Hon'ble appex court which he had stated to have been voilated by the defendants. He denied the suggestion given by ld counsel that gali in question is public gali. He denied the suggestion given by ld counsel that he along with his brother filed the present suit to extract money from the defendants. He denied the CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 17 of 42 SURENDER JAIN AND ORS suggestion given by ld counsel that defendant no. l and 2 have right to open gate and shutter & window in the gali in question being the public gali. He denied the suggestion given by ld counsel that gali in question was in use as public gali since 1981.
In his cross examination by Ld. Counsel for MCD he stated that he had not lodged the complaints against the MCD for stopping the unauthorised and illegal construction carried on in the suit property.
(iii) Sh Subhash Chand was examined as PW-3 who had brought Ex. PW-3/1 which is copy of Khatoni no. 224 in the name of Leela Devi w/o Sh Kundan Lal.
(iv) ASI Jaspal was examined as PW-4. He stated that he could not bring the summoned record as the same had been destroyed vide order no. 7018-7104/HAR/DWD dated 20.04.2022 and the covering letter alongwith the order dated 20.04.2022 is Ex. PW-4/1 (colly).
(v) Sh Hawa Singh Kadian, SSA, Building Department, Najafgarh Zone was examined as PW-5. He had brought Ex. PW-5/1 (OSR) which is already Mark-E regarding complaint dated 06.07.2017 addressed to Executive Engineer, Building Department received vide diary no. 1245/1 and three original photographs of the unauthorized construction property.
In his cross examination by ld counsel for defendant no. 1 and 2 he stated that he had been posted in the present office since the year 2020. He stated that he had no knowledge about the present matter. He stated that he had never conducted any inspection/inquiry with regard to the subject matter of complaint dated 06.07.2017. He voluntarily stated that he was not competent to conduct any inquiry.He stated that Ex. PW-5/2 is with regard to property no. RZ-4, New Heera Park, Dichaon Kalan Road, Najafgarh, New Delhi. He stated that he was CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 18 of 42 SURENDER JAIN AND ORS not aware about the action taken by the department with respect to property no. RZ-4, New Heera Park, Dichaon Kalan Road, Najafgarh, New Delhi for the unauthorized construction in the said property.
(vi) Sh. Mukul Kumar Sharma was examined as PW-6. He had prepared the site plan exhibited as Ex. PW 6/1.
In his cross examination by ld counsel for defendant No. 1 and 2 he stated that he was not aware about the plot no. of the property of which he had made the site plan exhibited as EX PW6/1. He stated that he did not enter into the property of site plan. He stated that he had visited the area where the said property situated. He stated that he does not remember the date when he visited the suit property. He stated that he had not shown any entry gate in the site plan of the said property. He stated that the gali mentioned in the site plan by him are open both sides. He stated that he had not mentioned the site plan the width of gali. He affirmed the suggestion given by ld counsel that the the property of site plan has gali all four sides of property. He stated that he had personally visited the site and checked all the gali as shown in the site plan by him.
7. Plaintiff's evidence was closed on 04.04.2025 and the matter was adjourned for defendant's evidence.
8. Defendant's Evidence
(i) Sh. Surender Kumar Jain was examined as D1W1, who tendered his affidavit in evidence Ex. D1W1/1 and reiterated on oath the contents of his affidavit. He relied upon the following documents.
a. Photographs of Gali and property of defendants are exhibited as EX CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 19 of 42 SURENDER JAIN AND ORS D1W1/A (colly) objected to mode of proof.
b. Sale deed dated 18.02.1985 exhibited as EX D1W1/B. Objected to mode of proof.
c. Declaration dated 18.02.1985 exhibited as EX D1W1/C. Objected to mode of proof.
d. GPA dated 26.12.1997 exhibited as EX D1W1/D (colly). Objected to mode of proof.
e. GPA dated 09.05.2005 exhibited as EX D1W1/E (colly). f. Complaint DD 31B dated 25.09.2016 which is exhibited as EX D1W1/F in evidence affidavit and the same be read as Mark-A. In his cross examination by Ld counsel for plaintiff he stated that he was 12th pass. He stated that he had purchased the property in question i.e. Plot bearing no. 2 and 3, area measuring 446 sq. yards, Hira Park, Lok Ram Park, Najafgarh, New Delhi-43 in the year 2005. He affirmed the suggestion that he was neither a signatory nor any witness nor the document Ex. D1W1/B was executed in his presence. He stated that the alleged declaration dated 18.02.1985 Ex. D1W1/C was not executed in his presence nor he was signatory or witness therein.
He stated that his uncle Sh Mahender Kumar Jain aged 82 years purchased the property and transferred the same in the name of his elder brother Sh Satish Kumar Jain from whom he had purchased the property and document Ex. D1W1/C which is part and parcel of title documents in his favour as he received from erstwhile owner but Ex D1W1/C was not executed in his presence.
He denied the suggestion that Ex. D1W1/C was never actually executed by the purported executant Smt Lali Devi. He denied the CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 20 of 42 SURENDER JAIN AND ORS suggestion that Ex. D1W1/C was forged by him in collusion and connivance with his uncle and brother. He voluntarily stated that Ex. D1W1/C was registered. He stated that the boundary in the plot was constructed in the year 1997. He voluntarily stated that he and his brother Satish Jain got constructed the same. He stated that he cannot tell the month or date or it was in beginning, middle or end of the year 1997 the said boundary was got constructed. He denied the suggestion that no such boundary wall ever existed or got constructed by them that is why he was unable to tell the exact date, month or period when the said boundary wall was allegedly got constructed. He stated that Smt. Lali, mother of plaintiff was owner of the entire land of the area. He stated that by the word area he want to say that the entire land of the colony namely Hira Park and Lok Ram Park was owned by mother of plaintiff. He stated that he can read the site plan. He stated that site plan Ex PW-6/1 is the correct site plan of his property. He stated that the yellow and green portion shown in Ex PW-6/1 are sold by him to one Sh Gupta and Bittoo respectively. He stated that he had sold out these portions prior to filing of the present suit. He denied the suggestion given by ld counsel that he was deposing falsely in this regard or that he had sold out these portions during the pendency of present suit. He stated that he had not raised any construction in these portion as well as in other portions of his property. He voluntarily stated that he had raised only boundary wall, which was initially constructed in the year 1997 and thereafter, he repaired the same in the year 2016. He denied the suggestion given by ld counsel that he was deposing falsely in this regard or that no boundary wall was constructed by him or another person on his behalf in the year 1997 nor he got repaired the same. He denied the suggestion given by ld counsel that on 06.07.2017 he tried to raise construction by affixing CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 21 of 42 SURENDER JAIN AND ORS the gate in the east side of his plot or that the plaintiffs had objected for the same, as they were installing the gate in their property towards gali which was a private gali of the plaintiff. He denied the suggestion given by ld counsel that in the year 1997 he was neither owner nor in possession nor having any concerned with the above said property. He stated that he cannot say if the mother of the plaintiff was owner of the total land measuring 10 bigha 6.5 biswa. He affirmed the suggestion given by ld counsel that their property and the property of plaintiff are part of said land. He stated that he had gone through the sale deed Ex. D1W1/B. He stated that his property is situated in Khasra no. 12/24/1. He stated that he had purchased the above said property in the year 2005. He stated that the sale deed Ex. D1W1/B was/is pertaining to area measuring 446 sq. yards. He denied the suggestion that the sale deed Ex. D1W1/B of 446 sq. yards, does not identify the land measuring 446 sq. yards either by plot number or by surrounding the sides of said portion of land. He denied the suggestion that Ex. D1W1/C is neither registered nor ever executed by Smt. Lali Devi nor it bears the RHT of Lali Devi. He affirmed the suggestion given by ld counsel that the sale deed Ex.D1W1/B of the land measuring 446 sq. yards out of khasra no. 24/1/1 is not from the khasra no. 12/24/1. He stated that the land measuring 446 sq. yards remained the single unit of land and it was never partitioned. He stated that the documents Ex.D1W1/D(colly) were got prepared on the basis of sale deed Ex.D1W1/B. He stated that no plot of measuring 230 sq. yards was ever separated/divided out of the above mentioned unit of land measuring 446 sq. yards and same is his answer in respect of the document Ex.D1W1/E(colly). He stated that no plot measuring 216 sq. yards was ever separated/divided out of above mentioned unit of land measuring 446 sq. yards. He stated that he has CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 22 of 42 SURENDER JAIN AND ORS placed on record the agreement to sell in respect of plot no. 3 measuring 216 sq. yards, executed by Sh Mahender Kumar Jain in favour of Sh Satish Jain.
Witness is shown the record of case and asked to point out the said agreement to sell of the plot no. 3 from the court file but after going through the record the witness states that no such agreement of plot no. 3 measuring 216 sq. yards out of above mentioned unit of land measuring 446 sq. yards is on record.
He voluntarily stated that he can produce the same if he is directed to do so. He affirmed the suggestion that he is neither a witness nor signatory nor the documents EX D1W1/D(colly) and EX D1W1/E(colly) dated 26.12.1997 were executed in his presence. He denied the suggestion that all the documents dated 26.12.1997 EX D1W1/D(colly) and EX D1W1/E(colly) are false, forged, fabricated and are bogus documents prepared by him in collusion and connivance with his uncle Mahender and his brother Satish Jain only to raise a false claim over the above mentioned property and private gali of plaintiff in the eastern side of the above said property. He stated that he got executed the documents Ex. DIWI/D (colly) and Ex.DIW1/E(colly) on the basis of the document Ex. DIWI/B. He affirmed the suggestion that he has not made any changes in document Ex. D1W1/D and Ex. DIWI/E and these documents have been prepared as it is from document Ex. DIW1/B. He denied the suggestion that the khasra number and boundaries of the properties mentioned in Ex. DIWI/D and Ex. DIWI/E are different and contradictory to the document Ex. DIW1/B. He denied the suggestion that plaintiffs are having 1,000 sq. yard plot out of the land belonging to their mother namely Lali. He denied the suggestion that the plaintiffs had left their own passage/gali infront of their portions for CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 23 of 42 SURENDER JAIN AND ORS their own use and the same passage/gali is their private gali not the public land. He denied the suggestion that as Smt. Lali had not executed or signed any declaration or the alleged declaration Ex. DIW1/C and that is the reason the same was not registered with the office of Registrar, where the document Ex. DIWI/B was registered. He denied the suggestion that in the sale deed Ex. DIW1/B neither the area/name of colony nor the boundaries are mentioned. He stated that there was no layout plan of the colony wherein the suit property is situated. He denied the suggestion that there was no registered sale deed in the name of defendant no. 1 and 2 with regard to property i.e. plot no. 2 and 3,Heera Park, Lok Ram Park, Najafgarh, New Delhi-43. He voluntarily stated that there is registered GPA in the name of D-1 and D-2. He stated that he did not obtain any sanction plan for raising construction of his property. He voluntarily stated that he had not raised any construction. He denied the suggestion that he had raised unauthorized construction in the above property. He denied the suggestion that he had no right to open any window, opening, door in the above said property towards East side of that property. He stated that he did not know if the locality/area in which above property is situated comes under the jurisdiction of MCD or not. He denied the suggestion that he has no right, title or interest in the above property as well as in the gali in question towards the East side above said property. He denied the suggestion that he and his brother were trying to encroach upon the private gali of plaintiffs by opening doors/gate/windows/opening in the property i.e. plot no. 2 and Heera Park, Lok Ram Park, Najafgarh, New Delhi-43. He denied the suggestion that he had filed a false affidavit Ex. D1W1/A. He denied the suggestion that during the pendency of present case he raised unauthorized construction in the above said property and sold out the portions of the said CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 24 of 42 SURENDER JAIN AND ORS property to defendant no. 5 to 7.
Defendant no. 1 and 2 closed their defence evidence on 02.07.2025. Defendant no. 3/MCD did not wish to lead evidence. Hence, Ld counsel for defendant no. 3/MCD closed its defence evidence on 02.07.2025.
9. Thereafter, the defendant's evidence was closed on 29.05.2025 and matter was listed for final arguments.
10. Final arguments have been heard and judicial record perused.
It is submitted by Ld counsel for plaintiff that the present suit has been filed by the plaintiff against the defendants for seeking relief of permanent injunction against defendant no. 2 for restraining them from raising illegal and unauthorized construction and encroachment over the street/gali towards the West side of plaintiff's house by installing gate/shatter, window etc, for seeking the relief of mandatory injunction against the defendants for directions to them to remove illegal and unauthorized construction and encroachment over the street/gali. It is submitted that plaintiff has also sought relief of permanent injunction against defendants from raising any further construction in any portion of suit property as well as in portion shown in red colour in the site plan without obtaining the permission from defendant no. 3 and for restraining defendant no. 5 and 6 from misusing the property shown in yellow and green colour in the site plan. It is submitted that plaintiff has also sought relief of mandatory injunction against the defendants to remove the entire unauthorized and illegal construction in the suit property. It is submitted that case of plaintiffs is that their mother Smt Lila Devi was owner and in possession of agricultural land measuring 10 bigas 6.50 biswa in khasra no. CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 25 of 42 SURENDER JAIN AND ORS 12//18/2(3-04), 12//12 (02-08), 12//24/1(03-1.5) and 12//13 (1-13) in revenue estate Najafgarh, New Delhi. It is submitted that the defendants no.1 & 2 had claimed that they jointly purchased a plot measuring 446 sq. yrds. from the plaintiff's mother out of Khasra no.12//24/1 and raised boundary wall in the said plot. The said plot was three side open i.e. North, South and West. At that time, the defendants no.1 & 2 installed its gate on West Side as east side of their plot, the plaintiffs were having its plot of 1000 sq. yrds. That thereafter a family settlement arrived in the family of plaintiffs and they left 10 feet wide private gali to the west side of their plot. The plaintiffs divided the rest plot equally and constructed his house in 1981. The said 10 feet wide gali is a private gali of plaintiffs for their personal use and they enjoyed the said gali peacefully since 1981. That on 04/07/2017, the defendants no.1 & 2 had demolished the wall and on 06/07/2017, they were trying to establish gate in the east side of his plot towards private gali of the plaintiffs. The plaintiffs raised objections but the defendants no.1 & 2 did not stop and tried to install a gate in the east side of the suit property. The defendants no.1 & 2 had further raised unauthorized construction in the suit property and sold the part of the suit property to defendants no.5 to 7. The plaintiffs have filed various complaints before defendants no.3 & 4 but no action has been taken by the defendants no.3 & 4. Accordingly, the plaintiff was compelled to file the present suit for seeking the relief mentioned above. It is submitted that during plaintiff's evidence plaintiffs had examined 6 witnesses and defendants had examined only 1 witness. It is submitted that during cross- examination of PW-1 and PW-2, ld counsel for defendant has sought to bring from their cross examination that gali in question is not a private gali, however, defendant could not be successful in shaking the version of CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 26 of 42 SURENDER JAIN AND ORS plaintiff's witnesses. It is submitted that defendants have not proved any document or examined any witness to prove that the gali in question is a public gali or a said gali is not a private gali. It is submitted that sale deed executed by mother of plaintiffs does not contain the boundary of property sold to the defendants. It is vehemently submitted that declaration Ex.D1W1-1/C, which is unregistered cannot be considered to be part of the sale deed Ex.D1W1-1/B. It is further submitted that the boundaries mentioned in further chain of documents is also different from the alleged boundaries mentioned in sale deed Ex.D1W1-1/C. It is submitted that even otherwise the said declaration has not been proved as per provisions of BSA.
Ld. counsel for plaintiff has relied upon the judgment of Hon'ble High Court of Delhi in Khubi Ram Sharma vs Yashpal & Ors. Decided on 24 October, 2016. It is submitted by ld counsel for defendant no. 1 and 2 that the property i.e. plot of land of 446 sq. yds. was sold by the mother of the plaintiffs to Shri Mahender Kumar Jain uncle of the defendants in the year 1985 through registered Sale deed and on the same day also executed a declaration in favour of Shri Mahender Kumar Jain that the plot among others has a 10 ft. lane towards east side of property of Shri Mahender Kumar Jain i.e. the Gali in question. It is further submitted that Shri Mahender Kumar Jain sold the said plot to defendant no. 2 and the defendant no. 2 sold the said plot to the defendant no. 1. It is vehemently submitted that the plaintiffs have not placed any proof on record that the Gali in question is their private Gali, which they must have proof as it is their case that gali in question is a private gali, which belongs to them. It is submitted that in fact, the plaintiffs in their complaint to the DCP have mentioned that they allowed the said Gali to be used by colony people CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 27 of 42 SURENDER JAIN AND ORS keeping in view of their problems and the plaintiffs have five shops having opening in the Gali in question. It is submitted that the plaintiffs have been using their property commercially and the colony people come and purchase the items from their shops while using the Gali in question the defendants have the same right to use the Gali as the plaintiffs have been using as the property of the defendant is facing the said Gali for opening gate, shutter and window besides using the Gali as common passage like the colony people as well as the plaintiffs. It is submitted as the area in question where the gali as well as houses of plaintiff and defendant are situated does not come within the jurisdiction of MCD and the property of plaintiff as well as all the defendants have been constructed without any site plan approved by MCD. It is submitted that status of construction raised by plaintiffs as well as defendants are same, as all such construction has been raised without any approved site plan by MCD. It is submitted that as plaintiff could not prove any of the fact which was required to be proved by plaintiff for seeking the relief in the present suit, the suit is liable to be dismissed.
11. Issue wise findings:-
Issue no. (ii) & (iv)
(ii) Whether the plaintiffs are entitled for a decree of permanent injunction in their favour and against defendants no. 1 & 2, as prayed for? (OPP).
(iv) Whether the Gali in question i.e. East side of the property of defendant and west side of the property of plaintiff is a common passage and not a private Gali? (OPD).
The burden of proving issue no. II was on plaintiff and burden of proving issue no. IV was on defendant. However, these issues have been CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 28 of 42 SURENDER JAIN AND ORS taken together for consideration and disposal as decision on issue no. II will be dependent on issue no. IV.
It is admitted case of plaintiff as well as defendant that the cause of action for filing the present suit is based upon the dispute with regard to the nature of gali in question. The case of plaintiff is that the whole land including the plot of defendants as well as gali in question belonged to their mother and some part of the land i.e. 446 sq. yds out of khasra no. 12/24/1 has been sold to the defendants and remaining part was sold to others. It is the case of plaintiffs that the gali in question has been left by them for their personal use in view of their family settlement. Further, that as the gali has been left by plaintiffs from the private land/plot, the gali is private and no other including defendants cannot use it for any purposes. The defendants have not disputed the claim of the plaintiffs that the mother of the plaintiffs was the earlier owner of the whole land, i.e. 10 bigga 6.50 biswa in Khasra no. 12/18/2 (3-04), 12/17 (02-08), 12/24/1 (03-15) and 12/13 (1-13) in revenue estate Najafgarh, New Delhi, from whom the plot of defendants has been purchased by them from her through their uncle Mahender Kumar Jain. The case of defendants is that at the time when the mother of plaintiffs had sold the said 446 sq. yards to their uncle, (who in turn has sold the said plot to defendant no. 2 and who sold it to defendant no. 1), the plot in question was four side open as mentioned in the title documents.
To prove their case the plaintiffs have called the Record Keeper from the office of concerned SDM i.e. SDM Najafgarh for showing that their mother Smt. Lila Devi was owner of land measuring 10 bigga 6.50 biswa in Khasra no. 12/18/2 (3-04), 12/17 (02-08), 12/24/1 (03-15) and 12/13 (1-13) in revenue estate Najafgarh, New Delhi, which includes the property of CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 29 of 42 SURENDER JAIN AND ORS plaintiff no. 1, plot of defendants as well as the gali in question. The said ownership has not otherwise been disputed by the defendants. The defendants have relied upon the registered sale deed Ex. D1W1/B executed by Late Smt. Lali in favour of their uncle Sh. Mahender Kumar Jain, the title documents Ex. D1W1/D (colly) executed by their uncle in favour of defendant no. 2 and title document Ex. D1W1/E (colly) executed by defendant no. 2 in favour of defendant no. 1 to assert that the said plot of 446 sq. yards, sold by Smt. Lali was four side open and east side of the said plot was surrounded by 10 feet road. It is the case of the defendants as the boundaries of the said plot of 446 sq. yards sold by Smt. Lali to Sh Mahender Kumar Jain, he not been specified inadvertently in the title documents Ex. D1W1/B, on the same date a declaration Ex. D1W1/C was issued by Smt. Lali to declare and explain the boundaries of the plot by Smt. Lali to Sh Mahender Kumar Jain.
At this stage to decide whether gali in question can be said to be public gali or the said gali is a common passage, used by defendants and the other people of village, it is important and necessary to refer to judgment of Hon'ble High Court of Delhi in Khubi Ram Sharma Vs. Yashpal & Ors. Decided on 24.10.2016, relied upon by Ld. Counsel for plaintiff:
12. A reading of the aforesaid relevant Sections of the DMC Act read with the ratio of the judgment of the Supreme Court in the case of Pt. Chet Ram Vashist (Dead) by Lrs. (supra) shows that when an undeveloped land is to be made into a colony then a lay-out plan has to be got sanctioned under Section 313 of the DMC Act. It is only when a lay-out plan is sanctioned under Section 313 of the DMC Act would any street be vested for the purposes of management and administration in the Municipal Corporation and the actual owners would thereafter only be owners in trust having no rights to construct and utilise the CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 30 of 42 SURENDER JAIN AND ORS same as a private owner of a property. Thus, unless there is a lay-out plan which is sanctioned under Section 313 of the DMC Act as a sine qua non, it cannot be that a private street would become a public street.
13. In the present case it is seen that no lay-out plan as sanctioned under Section 313 of the DMC Act was filed on record and proved on behalf of the respondents no.1 and 2/defendants whereby the private street/gali DGHI is shown to have become a public street because of inclusion of this private street in the lay-out plan as a public street. Once that is so, the private street/gali DGHI cannot be said to have been vested in the Corporation even for the purpose of management and administration because such management and administration as per the ratio of Pt. Chet Ram Vashist (Dead) by Lrs.'s case (supra) is only after sanction of a lay-out plan showing the street as a public street/gali. I note that it is not the case of the respondents no.1 and 2/defendants that they are claiming any ownership interest in the private street/gali DGHI and that they only claim rights in the same on account of the said private street/gali being a public street as the management and administration of the same is with the MCD and in which it is said to have been built water lines, sewer lines, etc of the MCD.
Therefore once the respondents no.1 and 2/defendants have failed to prove any lay-out plan showing a private gali as a public street forming part of the lay-out plan, the subject private gali DGHI cannot be said to be a public street unless the land in the gali was acquired by the Government under the Land Acquisition Act and as stated in the case of Pt. Chet Ram Vashist (Dead) by Lrs. (supra). Admittedly, there is no case put forth by the respondents no.1 and 2/defendants that the street in question which is owned by the appellants/plaintiffs was acquired by any public authority or the Union of India, or by the MCD under the provisions of the Land Acquisition Act. Thus on these facts as found on record, the respondents no.1 and 2/defendants have no right to use the private gali DGHI of which JKLM forms a part because neither is this gali part of a lay-out plan under Section 313 of the DMC Act nor is the same acquired by the Government or any public authority under the Land Acquisition Act.
14. The only other method for entitling any person to use a CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 31 of 42 SURENDER JAIN AND ORS street as a public street would be if the street is declared as a public street under Section 316 of the DMC Act. Under Section 316 of the DMC Act only if majority of the owners of a private street ask the Commissioner of the MCD to declare the private street as a public street would the private street/gali become a public street. Admittedly, there is no case made out by the respondents no.1 and 2/defendants that Commissioner of the MCD in exercise of powers under Section 316 of the DMC Act has declared the private gali DGHI as a public street on account of the Commissioner of the MCD having been approached by the majority of the co-owners of the private street. By the very language of Section 316 of the DMC Act merely because a street is levelled or paved or that there may exist water or sewer lines in the same, yet, such a private street cannot become a public street in the absence of declaration by the Commissioner under Section 316 of the DMC Act.
Therefore, issue no. 1 has been clearly and most illegally decided by the trial court against the appellants/plaintiffs merely because the trial court has observed that there are sewage lines and water lines in the street; a municipal sweeper cleans this street and that there is no restriction on ingress and egress to this private street DGHI. Ownership in a private street cannot be lost unless there is a declaration of the Commissioner under Section 316 of the DMC Act. In this regard learned Senior counsel for the appellants/plaintiffs has rightly placed reliance upon the judgment of a learned Single Judge of this Court in the case of Kalo Mal Gopal Chand Vs. Commissioner/Municipal Corporation of Delhi, 1966 (62) DLT
536. Accordingly, the findings on issue no. 1 by the courts below are clearly illegal and perverse and are accordingly set aside and it is held that since there is no declaration by the Commissioner under Section 316 of the DMC Act, the private street DGHI including the portion JKLM cannot become a public street.
From the above discussion of factual background and the decision of Hon'ble High Court of Delhi in Khubi Ram Sharma Vs. Yashpal & Ors., it is worth noting that once, it is proved by plaintiff and is in fact undisputed that the mother of plaintiff Late Smt Lali was owner of the whole land of CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 32 of 42 SURENDER JAIN AND ORS 10 bigha 6 biswa, from which the plot of 446 sq. yds, was sold to Mahender Kumar Jain, uncle of defendants, through whom, defendants have become owner, it is duty of the defendants to prove that after the said private land of the mother of plaintiffs was plotted and that the said gali was made a public gali, which was earlier, without any dispute was private land of mother of plaintiffs. As per observations of Hon'ble High court of Delhi in Khubi Ram Sharma Vs. Yashpal & Ors., unless there is a layout plan, which is sanctioned u/s 313 of DMC Act as sine qua non, it cannot be that a private street would become a public street. The declaration Ex. D1W1/C, which has been relied upon on behalf of defendants to prove that East side of their plot was a 10 feet road, has been challenged on behalf of the plaintiffs as false, forged, fabricated and unregistered and that same has not been proved by the defendants as per rules of evidence.
It is noted that as per declaration Ex. D1W1/C the boundaries of the plot purchased by Sh Mahender Kumar Jain has been described as :
East: 10 feet lane (towards Najafgarh village) West: 20 feet road(towards Bahadurgarh) South: 6 feet nala(On main Bahadurgarh road) North: 10 feet lane (towards Nangloi village) As per title documents executed by Sh. Mahender Kumar Jain in favour of D-2, Ex.D1W1/D(colly) the boundaries have been described as under
East: 10 feet road.
West: Main Bahadurgarh road.
South: 10 feet road.
North: remaining portion of the said plot.
As per title documents executed by D2 in favour of D-1, CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 33 of 42 SURENDER JAIN AND ORS Ex.D1W1/E(colly) the boundaries have been described as under East: 10 feet road.
West: 20 feet road.
South: 10 feet road.
North: 10 feet road.
As boundaries of alleged subsequent sale documents does not matches with the boundary of declaration Ex.D1W1/C it is hard to believe that the boundaries in alleged subsequent sale documents has been derived or based on declaration Ex.D1W1/C. From the said changed/difference is boundaries in document Ex.D1W1/C and document Ex.D1W1/D as well as Ex.D1W1/E, it may be inferred that contention of ld counsel for plaintiff has substance when he had contended that the declaration Ex.D1W1/C has been prepared subsequently to support the defence in the present case. However, even if the said discrepancies in the boundaries are kept aside for a moment, the question to be considered remains whether declaration Ex. Ex.D1W1/C was a document, which as per Section 17 of the Indian Registration Act was required to be compulsorily registered and whether the said document/declaration has been proved by the defendants as per rules of evidence.
Section 17 of the Registration Act, 1908 is reproduced as here under:
17. Documents of which registration is compulsory.
(1)The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,
(a)instruments of gift of immovable property;
(b)other non-testamentary instruments which purport or operate to create, CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 34 of 42 SURENDER JAIN AND ORS declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e)[ non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] [Inserted by Act 21 of 1929, Section 10.] Provided that the [State Government] [Substituted by A.O.1950, for "Provincial Government" .] may, by order published in the [Official Gazette] [Substituted by A.O.1937, for "Local Official Gazette" .], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A.] [Inserted by Act 48 of 2001, Section 3 (w.e.f. 24.9.2001).](2)Nothing in clauses (b) and (c) of sub-section (1) applies to
(i)any composition deed; or
(ii)any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or
(iii)any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv)any endorsement upon or transfer of any debenture issued by any such company; or
(v)[any document other than the documents specified in sub-section (1- A)] [Substituted by Act 48 of 2001, Section 3, for "any document" (w.e.f. 24.9.2001).] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 35 of 42 SURENDER JAIN AND ORS declare, assign, limit or extinguish any such right, title or interest; or
(vi)any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding] [Substituted by A.O.1937, for "and any award" .]; or
(vii)any grant of immovable property by the [Government] [Substituted by A.O.1950, for "Crown" .]; or
(viii)any instrument of partition made by a Revenue Officer; or
(ix)any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x)any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or[(x-a) any order made under the Charitable Endowments Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] [Inserted by Act 39 of 1948, Section 2 (w.e.f. 3.9.1948).]
(xi)any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii)any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.
[Explanation [Inserted by Act 2 of 1927, Section 2.].a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3)Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.
Certainly, the declaration Ex.D1W1/C does not by itself transfer the property mentioned in it to the transferee, however, it is noted that the description of boundaries is necessary and integral part of the sale deed/title document. Any document which describes the boundaries is necessarily the integral part of sale deed/title documents. Further, any document, which has effect of addition in the sale deed or title documents, must be considered to be part of the sale deed/title documents. In such situation, the declaration Ex. D1W1/C being a document describing the boundaries of CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 36 of 42 SURENDER JAIN AND ORS the property sold by the sale document Ex.D1W1/B, was the part of sale documents, title documents and was required compulsory registration being part of sale documents/addendum to sale documents. However, for reasons not disclosed to the court, the declaration Ex.D1W1/C, was not registered, which must have been registered as per Section 17 of the Registration Act and non registered declaration Ex.D1W1/C cannot be read in evidence as per Section 49 of the Registration Act. Sec-49 of the Registration Act, 1908 provides as here under:-
49. Effect of non-registration of documents required to be registered.
- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section 10.] to be registered shall
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any transaction affecting such property or conferring such power,unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 ( 4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the [Specific Relief Act, 1877] [Added by Act 21 of 1929, Section 10.], [* * *] [The words "or as evidence of part performance of a contract for the purposes of section 53-
A of the Transfer of Property Act, 1882 (4 of 1882)" omitted by Act 48 of 2001, Section 6 (w.e.f. 24.9.2001).] or as evidence of any collateral transaction not required to be effected by registered instrument.] Even if , the bar created by Section 17 r/w Section 49 of the Registration Act is to be kept aside for a while, the question which remains to be considered, whether defendants have proved the declaration Ex.D1W1/C as per rules of evidence. It is noted that, as per rules of evidence, section 64/59 of Indian Evidence Act/Bhartiya Sakshya Adhiniyam, a document must be proved by producing the document itself in court, unless its secondary evidence is permissible. In the case at hand, though document in CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 37 of 42 SURENDER JAIN AND ORS itself i.e. D1W1/C has been produced in original, however, the executant of the document or any of the attesting witnesses have been examined in the court to prove the declaration Ex. D1W1/C. The said declaration has not been signed by Sh. Mahender Kumar Jain, who had allegedly purchase the property in view of documents Ex.D1W1/B. The said document Ex. D1W1/C has not been put to witnesses examined on behalf of plaintiff to identify the signature of their mother. In fact, the plaintiff has challenge the declaration Ex. D1W1/C being forged and fabricated. The document Ex. D1W1/C could also not be proved as defendant's have not taken any step for comparison of signature of its executant or witnesses of the said document alongwith their admitted signature, which were otherwise available with the defendants.
The defendants have also not proved any record of MCD so as to show that MCD has taken over the property/gali in question and sanctioned any layout plan u/s 313 of DMC Act, so as to make/convert the said gali into a public street. The defendants have also not claimed right with regard to gali in question on the basis of their easementary rights nor any such evidence was led during DE so as to claim easementary rights with regard to the gali in question. The defendants have also not examined any witness from locality occupying the property in vicinity, who could have come and deposed before the court the nature of gali allegedly to be open for public without any restriction or hindrance from the plaintiffs. The mere use of gali in rare circumstances by any member of public, with or without the permission of plaintiff, will not change its nature from being private gali/private property to the public gali.
In view of above discussion, the defendants could not prove that gali in question i.e. gali at the East side of property of defendants is a public CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 38 of 42 SURENDER JAIN AND ORS gali or has been left by the plaintiffs for use of general public at the time of plotting of their land. Accordingly, issue no. IV is decided against the defendant and issue no. II is decided in favour of plaintiff and against the defendant. Defendants are hereby restrained from raising any illegal or unauthorized construction and encroachment over the said gali towards the West side of plaintiff's house and towards East side of plot of defendants by way of installation of gate/shutter/window etc. Issue no. (iii) Whether the plaintiffs are entitled for a decree of mandatory injunction in their favour and against the defendants, as prayed for? (OPP).
The burden of proving this issue was on plaintiff. The plaintiff has not brought any evidence to prove that defendants had raised some construction in the said gali at the time of evidence in the present matter. In fact, PW-1 as well as PW-2 have admitted during their cross-examination that defendants have not raised any encroachment or illegal construction in the gali in question.
Accordingly, this issue is decided against the defendant.
Issue No. (v) Whether suit is liable to be dismissed for misjoinder of parties? OPD-5 & 6.
The burden of proving this issue was on defendant no. 5 and 6. However, defendant no. 5 and 6 has not led any evidence in the present case to discharge the burden of proving this issue. Defendant no. 5 and 6 were proceeded ex parte on 04.10.2021.
This issue is decided against defendant no. 5 and 6.
CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 39 of 42 SURENDER JAIN AND ORS Issue no. (i), (vi), (vii) & (viii)
(i) Whether the suit of the plaintiffs is barred by section 41 of Specific Relief Act as plaintiffs are having no interest in the subject matter and suit is without any cause of action? (OPD-2).
(vi) Whether the plaintiff not come to court with clean hands? OPD 1 & 2.
(vii) Whether the plaintiff is entitled for a decree of permanent injunction as prayed for in prayer clause (iia)? OPP
(viii) Whether the plaintiff is entitled to the decree of mandatory injunction as prayed in prayer clause (iib)? OPP The burden of proving issue no. 1 was on defendant no. 2, the burden of proving no. 6 was on defendant no. 1 and 2 collectively and burden of proving issue no. 7 and 8 was on plaintiff. As these issues were interlinked with each other, these issues were taken up for consideration together. It is case of plaintiff, that the defendants have raised illegal construction on the said plot of land measuring 446 sq. yds., without any sanction or approval from MCD. A relief for demolition of already constructed structure and for injuncting the defendants from raising further construction has been sought by plaintiffs. It is submitted on behalf of defendant that as per record, MCD has already filed its WS stating that the area in question is not under the jurisdiction of MCD and even otherwise, the property of plaintiff is also constructed in the same area without any sanctioned plan. It is submitted that after selling the plot of 446 sq. yds., plaintiff does not have any concern regarding the use of said property by defendants.
From the consideration of record and arguments, it is noted that CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 40 of 42 SURENDER JAIN AND ORS property of both plaintiff as well as defendant is built in the same area without any sanctioned plan. Further, MCD has already stated in its WS that area does not come within the jurisdiction of MCD. Further, the witnesses examined on behalf of plaintiffs PW-1 and PW-2, who are also only plaintiffs in the present case have stated in their cross-examination that they have no objection with regard to the use of said 446 sq. yds plot by defendants. It is noted that the relief of permanent and mandatory injunction, sought by plaintiffs are discretionary in nature and the one who seeks discretionary relief, must come to the court with clean hands. As the construction raised by plaintiffs is also without any sanctioned plan, the plaintiffs are not entitled to relief of permanent and mandatory injunction.
The issue no. 7 and 8 are decided against the plaintiffs. Issue no. 1 and 6 are also decided accordingly.
Issue no. (ix)
(ix) Whether the plaintiff is entitled for cost of suit? OPP.
As some of the issues have been decided in favour of plaintiff and some of the issues are decided against the plaintiffs. The parties shall bear their own cost in the present suit.
12. Relief In view of observations the suit of plaintiffs is partly decreed. Defendants are hereby restrained from raising any illegal or unauthorized construction and encroachment over the said gali towards the West side of plaintiff's house and towards East side of plot of defendants by way of installation of gate/shutter/window etc. CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 41 of 42 SURENDER JAIN AND ORS Decree sheet be prepared.
File be consigned to the record room after due compliance.
Digitally signed byMAYANK MAYANK MITTAL Announced in the Open Court MITTAL Date: 2025.09.23 17:11:47 +0530 on 23.09.2025 (Mayank Mittal) ASCJ cum JSCC cum Guardian Judge Dwarka Courts: New Delhi 23.09.2025 CS No. 779/2017 Deep Chand Saini & ANR. Vs. Page no. 42 of 42 SURENDER JAIN AND ORS