Delhi District Court
Dr. Sunita Bhalla W/O Sh. Sudhir Bhalla vs Sh. Nipun Sharma S/O Sh. G.S.Sharma on 8 July, 2011
IN THE COURT OF MS. ANU AGGARWAL:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No.305/10
ID no. 02406C0403552010
Dr. Sunita Bhalla W/o Sh. Sudhir Bhalla
D/o of Sh. H.K. Chawla
R/o C10 (Ground Floor),
East of Kailash, New Delhi.
... Plaintiff
Versus
1. Sh. Nipun Sharma S/o Sh. G.S.Sharma
Addresses: (a) Manager Finance, ICICI Prudential
Saket, New Delhi.
(b) B222, PocketB, Mayur vihar, PhaseII,
Delhi110092.
2. Sh. Ashok Jawa S/o Late Sh. Gurmukh Dass Jawa
R/o E284, East of Kailash, New Delhi110065.
3. Smt. Usha Jawa W/o Sh. Sunder Lal Jawa
R/o E284, East of Kailash, New Delhi110065.
4. Municipal Corporation of Delhi (through Commissioner)
Town Hall, Chandni Chowk, Delhi.
... Defendants
SUIT FOR PERMANENT AND MANDATORY
INJUNCTIONS
CS305/10 Page 1/15
DATE OF INSTITUTION : 09.11.2010
RESERVED FOR JUDGMENT : 03.06.2011
JUDGMENT PASSED ON : 08.07.2011
J U D G M E N T
1. The present suit is filed by the plaintiff for permanent and mandatory injunction as against the defendant no. 1 to 5.
2. The fact necessary for the disposal of the present case is as follows: 2.1 It is the case of the plaintiff that the plaintiff is the owner and in possession of the ground floor of the suit property bearing no. C10, East of Kailash, New Delhi and defendants no. 1 to 3 are in possession of the first floor of the suit property. The ground floor of the suit property was gifted to the plaintiff by her father through the registered gift deed dated 18.03.1999. The first floor with roof rights, barring space where two over head water tanks are lying and common passages / common ways, was gifted by her father to her mother Smt. Prakash Chawla. It is further stated that Smt. Prakash Chawla has not been seen in her portion for the last around three years. Defendant no. 1 and 3, all, in their own right are exercising rights in portions gifted to Smt. Prakash Chawla. CS305/10 Page 2/15 2.2. It is further submitted that defendant no. 1 accompanied with defendant no. 2 and 3 and other relatives came to the suit property on 19.07.2006 for the purpose of raising illegal construction, for breaking common passage door, leading to over head water tanks through the staircase and to obstruct water supply of the plaintiff. The defendant had broken the door on the staircase as shown at point A and also affixed the door at point B, which without disturbing first floor people leads to stairs on the terrace floor for seeking working of the two over head water tanks. The defendants also dismantled the water pipes in water tanks sending water facility to the portion of the plaintiff on the ground floor. It is further submitted that defendants have raised illegal toilet and kitchen at the terrace. It is further submitted that the defendants threatened to raise more illegal construction and had also removed the board of the plaintiff, who is a dental surgeon by profession. Plaintiff filed a written complaint dated 20.07.2006 with PS Lajpat Nagar and also sent a notice dated 20.07.2006 to the defendant no. 4. Since no action was taken against the defendant no.1 to 3 the plaintiff has filed the present suit.
3. The defendants no. 1 to 3 were duly served on 01.08.2006 CS305/10 Page 3/15 and defendant no. 4 was duly served on 02.08.2006.
4. Defendant no.1 in his written statement took various preliminary objections such as, the plaintiff has not approached the court with clean hands and has concealed the material facts. It is submitted by defendant no. 1 that the suit property was earlier owned by Sh. H.K. Chawla, father of the plaintiff. Sh. H .K. Chawla vide gift deed dated 18.03.1999 gifted the portion comprising of first floor and above to his wife Smt. Prakash Chawla. Smt Prakash Chawla sold her portion comprising of first floor and above to Sh. Ashok Jawa by executing the registered GPA, Agreement to sell etc on 16.12.2003, thereafter, the said property was sold to Smt. Usha Jawa on 27.12.2003. It is submitted that defendant no. 1 and his father purchased the suit property from Smt. Usha Jawa through duly executed registered sale deed dated 21.12.2005, registered on 16.01.2006. It is submitted that since the portion of suit property in possession of the defendant no. 1 was badly maintained, therefore, he carried out repairs only without making any addition or alteration or any structural change. It is further submitted that the plaintiff has filed the present suit as the defendant no. 1 refused to sell his portion of the suit property to the plaintiff. CS305/10 Page 4/15
5. It is further submitted by defendant no. 1 that wooden door installed at the staircase was completely damaged and posing safety risk and therefore, defendant no. 1 is in the process of replacing the said wooden door by the iron gate. It is further submitted that the plaintiff has no right to the terrace and there is no water tank of the plaintiff on the terrace and the water tank is kept by the plaintiff at the terrace of ground floor itself.
6. After filing the written statement by defendant no. 1, plaintiff moved an application U/o 1 rule 10 CPC to implead the father of the defendant no. 1 in the present suit. The said application was allowed vide order dated 03.10.2007 and father of defendant no. 1, Sh. G.S. Sharma was impleaded as defendant no.
5. Defendant no. 5 adopted the same written statement as filed by defendant no. 1.
7. In the replication to the written statement of defendant no. 1 and 5, the plaintiff has stated that plaintiff has raised a small tank on the ground floor on her occupation and has a right to use overhead tanks for emergency purposes. It is further submitted that only first floor was gifted to the mother of the plaintiff and not terrace and above. The plaintiff has also denied all the allegations made by the defendant no. 1 and 5 in their written CS305/10 Page 5/15 statement.
8. In the written statement filed by MCD/defendant no. 4, various preliminary objections were taken by the MCD such as present suit is barred by Section 477 / 478 of DMC Act as against the MCD; suit is bad for no cause of action and plaintiff has filed the present suit to settle the personal dispute with the defendant no.1 to 3. It is further stated by the MCD that MCD had inspected the suit property and only noticed certain renovation / works being carried out. It is further submitted that there exists unauthorized construction at the ground floor, first floor and the second floor but MCD could not take any action qua unauthorized construction in view of the enactment of new Act i.e Delhi Law (Special Provision) Act 2006.
9. In the common replication filed to the written statement of defendant no. 1 and 5, the plaintiff had denied all the allegations as alleged by the defendant no. 1 and 5 and hence reaffirmed and reiterated the same fact as stated in the written statement. In her replication, the plaintiff has admitted of installing a water tank at her premises and has stated that she has a right to use the overhead tanks during emergency.
10. The defendant no.1 did not appear to contest the present suit CS305/10 Page 6/15 and was proceeded exparte on 12.8.2009.The defendant no. 2 and 3 were proceeded exparte vide order dated 03.08.2008. Defendant no. 5 did not appear to contest the present suit on 29.01.2010 and hence, proceeded against exparte.
11. Out of pleadings of the parties, following issues were framed on 29.01.2010:
1. Whether the suit is hit by the provisions of section 477/478 of DMC Act? OPD4
2. Whether no construction activity as alleged was noticed on inspection by officials and only some reparis are being carried out over suit property, permissible under Bye Laws? OPD4
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed in para "A" and "B" of prayer clause? OPP
4. Relief.
This court received the present suit by way of transfer on 09.11.2010 at the stage of plaintiff evidence.
12. In his evidence, the plaintiff had examined herself as PW1. The Ld. Counsel for the defendant no. 4 stated that she does not wish to cross examine PW1 and gave her statement as on 03.05.2011. Since no evidence was led by defendant no. 4 / MCD, the right of defendant no. 4 to lead evidence was closed on CS305/10 Page 7/15 13.05.2011 and the case was posted for final arguments.
13. I have heard the arguments advanced by Ld. Counsel for both the sides and have perused the material on record.
My issue wise findings are as follows:
14. Issue no. 1: Whether the suit is hit by provision of Section 477/478 of DMC Act ? OPD4 Onus of proving the above issued was on defendant no. 4. Since defendant no. 4 did not lead any evidence to prove the same. The issue is not proved and is decided as against defendant no. 4.
15. Issue no. 2: Whether no construction activity as alleged was noticed on inspection by officials and only some repairs are being carried out over suit property, permissible under Bye Laws? OPD4 Onus of proving the above issued was on defendant no. 4. Since defendant no. 4 did not lead any evidence to prove the same. The issue is not proved and is decided as against defendant no. 4.
16. Issue no. 3:Whether the plaintiff is entitled to the relief of permanent injunction as prayed in para "A" and "B" of prayer clause? OPP In the present case the plaintiff has seek the direction CS305/10 Page 8/15 against the defendant to restrain the defendant from raising any illegal construction and further direct the defendants to demolish the illegal toilet and kitchen at the terrace floor. Plaintiff has further sought to permanently restrain the defendant from raising any construction on any portion of the suit property.
PW1 in his evidence has reiterated the same fact as stated in the plaint. In his testimony, it is stated by PW1 that defendant has raised illegal toilet and kitchen at the terrace floor, however, no documentary evidence has been put on record by the plaintiff to prove the same. The PW1 has not put on record any sanction plan of the suit property showing that the toilet and kitchen raised on the terrace floor are illegally constructed or that the defendant are raising any illegal construction. No report of MCD has been placed on record by PW1. The MCD in his WS has stated that the defendant no. 1 was carrying out only the repair works and further that the MCD found certain illegal construction from the ground floor to the top floor at the suit property. However, no status report was filed by MCD and MCD has also not led any evidence to prove the same. In view of the above observation, the plaintiff has failed to prove that defendant no. 1 has raised the illegal construction in the suit property and the toilet and kitchen at the CS305/10 Page 9/15 terrace floor as shown at point C and D in the site plan has been constructed without any sanction plan.
The plaintiff has also sought the direction to the defendant no. 1 and 3 for not affixing the door at the stair at point A as shown in the site plan and further to remove the door at point B affixed at the stair of the first floor leading way to the terrace.
PW1 in his testimony has stated that there are two water head tanks installed at the terrace of the building and the water is supplied from those water tank to both the floors including the floor of the plaintiff. It is further stated that the father of plaintiff gifted the first floor portion with roof right except the space meant for two over head tanks and common passage and common ways to the mother of the plaintiff by duly registered gift deed dated 10.03.1999. It is further stated that the defendants broke the door of the staircase and affixed the door at point B leading to the staircase shown in the site plan.
PW1 in his testimony relied upon the site plan which is Ex.PW1/1 and copy of the complaint which is dated 20.07.2006 which is Ex. PW1/2.
To avail this relief, plaintiff has to prove her right over the stair case leading to the terrace of the suit property, which the CS305/10 Page 10/15 plaintiff has failed to prove.
There is apparent contradiction between the plaint and replication filed by the plaintiff. The relevant paragraphs of plaint and replication is reproduced as under: Para2 of the plaint: "The property is double storeyed, i.e. It comprises of ground floor and first floor. First floor with roof rights, barring space where two over head water tanks are lying and common passages / common ways was gifted by Sh. H.S. Chawala, to his wife Smt. Prakash Chawala".
The same fact has been stated by the plaintiff in her evidence.
Para 4 of the replication, so fas as relevant, read as under: "It is a matter of record that first floor only was gifted to the mother of the plaintiff and not the terrace and above."
Thus, at one side the plaintiff is asserting that roof rights were gifted to her mother by her father barring common passage and other side ,she is stating that no roof right was given to her mother.
Further, the plaintiff admits in the replication that a small water tank has been installed by her at her premises and she requires to use the overhead tank for the emergency purposes, the CS305/10 Page 11/15 right which she is claiming on the basis of gift deed executed by her father in her favor and in the favor of her mother.
PW1 has not placed on record the gift deed on the basis of which she is asserting her right over the common passage and overhead water tank and thus failed to establish her right over common passage/ common ways & two overhead tanks.
As per section 64 of Indian evidence Act, 1872 " Document must be proved by primary evidence except in the cased hereinafter mentioned.
Section 62 of Indian Evidence Act states " Primary evidence Primary evidence means the document itself produced for the inspection of the court".
Further, section 59 of Indian Evidence Act, 1872 states "
Section 59: Proof of facts by oral evidence, all facts, except the contents of documents or electronic records , may be proved by oral evidence".
As per Section 59, 62 and 64 of Indian Evidence Act, 1872 the contents of documents must be proved by the documentary evidence and document must be proved by primary evidence which means document itself must be produced for the inspection of the court.
CS305/10 Page 12/15
In the present case, plaintiff is asserting her right on the basis of gift deed and plaintiff was required to produce the gift deed to establish her right, which the plaintiff has failed to do and thus, failed to prove her right over the common passage / Common ways and two overhead tanks on the terrace of the suit property.
PW1 in her testimony has stated that photocopies of the gift deed are on record and she has not put on record the original as the same was admitted by the defendants. It is important to mention that even photocopies has not been placed on record by the plaintiff. The perusal of the plaint along with the documents filed clearly shows that no photocopy of the gift deed was placed on record at the time of filing of the suit. Further, the plaintiff seek the liberty from the court to file the same on 04/07/2008, but the same was not put on record.
Even otherwise, the photocopies cannot be considered in evidence and the plaintiff/PW1 was required to bring on record the original gift deed as there is no admission on the part of the defendants as regard the right of the plaintiff over the staircase and two overhead tank, which PW1 in her testimony has claimed. Merely, because the defendant no.1 to 3 and 5 was proceeded CS305/10 Page 13/15 exparte would not discharge the burden of the plaintiff to prove her case.
As regards, the oral testimony of PW1 the same cannot be considered in view of provision of section 91 of Indian Evidence Act, 1872.
"Section 91: Evidence of terms of contract, grants and other dispositions of property reduced to from of documents: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the term of such contract, grant or other disposition of property , or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is a admissible under the provisions herein before contained".
Thus, since the plaintiff is asserting her right on the basis of the Gift deed executed by her father in her favour, she was required to bring the original Gift deed on record and oral testimony of PW1 cannot be considered in view of the section 91 of evidence Act.
On the basis of the above findings, this issue is decided as CS305/10 Page 14/15 against the plaintiff and in favour of the defendants.
17. Relief: Suit of the plaintiff is dismissed. Decree Sheet be prepared accordingly. File be consigned to record room.
18. Parties to bear their own cost.
(Announced in Open (ANU AGGARWAL) Court on 08.07.2011 ) CIVIL JUDGE02 (SOUTH) CS305/10 Page 15/15 CS305/10 Page 16/15