Delhi District Court
Chander Mohan vs . Pratima & Ors. on 2 April, 2022
Chander Mohan Vs. Pratima & Ors.
IN THE COURT OF KISHOR KUMAR, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 7927/16 (Suit No. 359/2005)
(17 year old case)
Sh. Chander Mohan
S/o Sh. Bishamber Dass
R/o D-1, Jangpura-B
New Delhi-110014 ...........Plaintiff
Versus
1. Smt. Pratima
W/o late Sh. Tara Chand
2. Sh. Raj Kumar
S/o late Sh. Tara Chand
3. Ms. Phool Kumari
D/o late Sh. Tara Chand Jha
All Residents of :-
D-1/1, Jangpura-B
New Delhi-110014. ...........Defendants
(Counter Claim filed on 23.02.2006)
Date of Institution : 05.12.2005
Date of final arguments: 29.03.2022
Date of decision : 02.04.2022
Final decision : Suit decreed/Counter claim
dismissed.
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Chander Mohan Vs. Pratima & Ors.
JUDGMENT
1. Plaintiff has filed the present suit against the defendants for permanent and mandatory injunction on the grounds that he is the co-owner of property no. D-1, Jangpura-B, New Delhi- 110014 (hereinafter be referred to as the suit property). It is stated by the plaintiff that defendants have raised illegal construction in the back side of the plaintiff's property on the Government land ( shown in the yellow color in the site plan).
2. It is further stated by the plaintiff that he has an exhaust fan in his property in the back side but suddenly the defendants started raising illegal wall infront of exhaust fan of the plaintiff. The plaintiff has raised an objection but the defendants were adamant to raise illegal wall in front of the exhaust fan of the plaintiff. Plaintiff made a complaint to the PS Hazrat Nizamuddin on 09.09.2005 and 12.09.2005. The police officials asked the plaintiff that they can not take any action against the defendants because it is a civil nature dispute but they made a kalandra u/s 107/111 Cr.PC against both the parties. It is further stated by the plaintiff that defendants used to involve themselves in illegal activities. Plaintiff so many times requested the defendants to remove the said illegal construction/ wall because due to the said illegal wall, the window of the plaintiff has been closed and Page no. 2 of 22 Chander Mohan Vs. Pratima & Ors.
ventilation of the plaintiff has also been closed and plaintiff is not getting proper air and sunlight from the back side of his property. It is further stated by the plaintiff that due to the said illegal wall the plaintiff, is suffering mental pain and agony and not getting proper ventilation, air and sunlight. It is further stated by the plaintiff that on 02.12.2005, the defendants again tried to raise illegal wall and plaintiff raised an objection and made hue and cry then the neighbours gathered there and the defendants could not succeed to raise illegal construction of the wall which has been shown in red color in the site plan. It is further stated by the plaintiff that in case the said illegal acts of the defendants are not checked/stopped by this Hon'ble Court, then the plaintiff shall suffer an irreparable loss and injury. The plaintiff has no other efficacious remedy available except to approach this court. Hence the present suit.
3. It is seen that the defendants have also filed counter claim claiming various reliefs. Counter claim has not been instituted separately. Hence, vide this judgment, the suit as well as the counter claim shall stand decided.
Written Statement/Counter Claim:
4. The defendants in their written statements as well as counter-claim have taken various preliminary objections like that present suit is liable to be dismissed on the grounds of non- joinder of necessary parties; the plaintiff has not come to the court with clean hands and has concealed the material facts; the Page no. 3 of 22 Chander Mohan Vs. Pratima & Ors.
plaintiff has tried to mislead the court by stating incomplete and incorrect facts.
5. The defendants have further taken preliminary objections that the father of defendant no.1 was in possession of the property. That the father of defendant no.1 was Pujari in the temple near the suit property and was also residing in the adjoining property pre-partition since 1946. The plaintiff encroached on government land in a piecemeal manner. First encroachments were made on the portion shown in red color. Thereafter, they encroached upon the passage which provided ingress and egress to the defendants to their premises in the Western Direction (shown in yellow colour in the site plan).
6. It is further the contention of the defendant that in an around 2002, the plaintiff forcibly dispossessed the defendants from the peaceful possession of the portion (blue color in the site plan) and raised a wall across it, making the portion inaccessible to the defendants and informed that occupied portion in blue would be used only as a store room and not for other purpose. While the protests made by the defendants to the plaintiff went unheard, the plaintiff made an opening of about 1 feet diameter in the wall on the pretext that the same was needed for light and ventilation as there was no other opening on this side of the premises.
7. It is further contended by the defendants that plaintiff has Page no. 4 of 22 Chander Mohan Vs. Pratima & Ors.
sufficient source of light and ventilation and the exhaust fan has been installed only to harass and interfere in the peaceful possession of the defendants. It is further stated by the defendants that plaintiff is using the blue portion area as a kitchen and deliberately started cooking at odd hours to trouble the defendants especially defendant no.1 who is an ageing woman and has problem in her eyesight as defendant no.1 had a cataract operation on 21.09.2004 but her eyesights could not heal completely due to the smoke emitting from the exhaust of the plaintiff installed in the blue marked portion. That to prevent the bad odor and smoke from effecting them, the defendants started putting a piece of cloth to cover the exhaust fan but to no avail. The defendants have further stated that eating habits of the plaintiff and defendants do not match. The defendants are pure vegetarians and inspite of knowing this the plaintiff insists on cooking foods that give out strong smells and seriously affect the health of the defendants. That on 03.09.2005 the plaintiff burnt some chemical substance or a wire which let out choking smoke and fumes which caused a lot of irritation in the eyes of defendant no.1 and she had to rush to the doctor for first aid.
8. It is further contended by the defendants that on 09.09.2005 the plaintiff and his family members suddenly tried to attack the defendants by pelting stones at the defendants and banging the doors with huge sticks and tried to break the latch of the main door of the defendants house. Thereafter, the defendants called the police. The police advised the defendants to raise a Page no. 5 of 22 Chander Mohan Vs. Pratima & Ors.
wall and cover the exhaust fan from their side of the wall. The plaintiff infront of police personnel agreed to the construction of the wall but the wall was not completely constructed. That the wall does not cover any portion of the exhaust fan and the same is not infringing the easementary rights of the plaintiff. That the written complaints have been made to various authorities on 11.09.2005, 13.09.2005, 21.10.2005 and 26.10.2005. Rest of the case of the plaintiff is denied by the defendants being wrong and incorrect.
9. In the counter claim, the defendants have prayed for passing the following decrees:-
(a) Pass an order declaring that the plaintiff is entitled to the portion marked in blue in the site map attached and;
(b) Pass an order of mandatory injunction as a consequence to the declaration directing the defendants to remove the unauthorized encroachments made by the defendants in the portion marked in blue in the site plan and;
10. The plaintiff by way of replication has denied the contents of the written statements/ counter-claim of the defendants and have reaffirmed and reiterated the contents of the plaint.
11. On the basis of pleadings of the parties, following issues have been framed for trial on dated 02.12.2010:-
Page no. 6 of 22 Chander Mohan Vs. Pratima & Ors.
1. "Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for"?OPP
2. "Whether the plaintiff is entitled to a decree of permanent injunction as prayed for"?OPP
3. "Whether the defendant is entitled to a decree of mandatory injunction as prayed for"?OPD
4. "Whether the defendant is entitled to a decree of declaration as prayed for"?OPD
5. Relief.
12. In order to prove his case, plaintiff examined only himself as PW-1 by way of his affidavit in evidence Ex. PW1/A. He has relied on the documents Ex. PW1/1 to Ex. PW1/16.
The plaintiff had been cross-examined at length. PE was closed on 20.12.2012.
13. Defendants examined Smt. Pratima Devi @ Sushila Devi as DW-1 by way of evidence affidavit Ex. DW1/A. She relied on the following documents i.e.
(i) Copy of postal envelop - Ex. DW1/1
(ii) Copies of passbooks - Ex. DW1/2 to Ex.
(iii) Copy of marksheet - Ex. DW1/5 (OSR)
(iv) 7 photographs - Ex. DW1/6 (colly.)
(v) Copies of complaints dated 11.09.2005, 13.09.2005 -
Ex. DW1/7 & Ex. DW1/8.
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Chander Mohan Vs. Pratima & Ors.
(vi) Copy of complaint along with registry slip dated
16.09.2005 - Ex. DW1/9.
(vii) Copy of complaint dated 21.10.2005- Ex.
DW1/10.
(viii) Copies of complaint dated 26.10.2005 - Ex. DW1/11 & Ex. DW1/12.
(ix) Copy of complaint dated 28.10.2005 - Ex.
DW1/13.
(x) Site plan- PW1/D1.
14. It is pertinent to mention here that pursuant to order dated 17.09.2019 passed by Hon'ble High Court, DW-1 has been examined again on 19.09.2019. DW-1 further relied on the following documents:-
(1) Copy of passbooks in the name of Vishnu Kant Mishra - Ex. DW1/14.
(2) Copy of passbooks in the name of Pratime Devi - Ex.
DW1/15.
(3) Copy of complaint dated 18.08.83 - Ex. DW1/16.
(4) Copy of letter showing the postal stamp dated 04.06.94- DW1/17.
(5) Certified copies of lease deed in the name of Fakir Chand along with line plan of D-Block and notarized copy of line plan - Ex. DW1/18 (colly.) (6) 12 photographs - Ex. DW1/19 (colly.) (7) CD along with certificate under Section 65-B of Evidence Act - Ex. DW1/20 and Ex. DW1/21.
Page no. 8 of 22 Chander Mohan Vs. Pratima & Ors.
15. Defendants also examined Sh. Raj Kumar Jha as DW-2 by way of his evidence affidavit Ex. DW1/B. He relied upon the following documents i.e.
(i) Certified copy of property document executed in favour of the defendant by Setia Aggarwal - Ex. DW1/1.
(ii) Certified copy of DD no. 35B relating to missing the original property documents regarding suit property- Ex. DW1/2.
(iii) Certified copy of FIR bearing 131/15 dated 15.03.2005.
16. DW-2 Raj Kumar Jha re-examined himself on 19.09.2019 and has filed his affidavit in evidence Ex DW-2/B. He has deposed in his affidavit in evidence on the same lines as deposed by DW-1. He has relied on the following documents:-
(1) Ex. DW-2/1 is the passbook dated 14.10.1985 (OSR).
(2) Ex. DW-2/3 is the Delhi University letter dated 13.07.1994 stamp dated 15.07.1994 (OSR).
(3) Ex. DW-2/4 is the Delhi University examination ticket year 1994 (OSR).
(4) Ex. DW-2/5 is the DTC pass dated 01.08.1994 to 30.04.1995 (OSR).
(5) Ex. DW-2/6 is the letter dated 18.06.1996 and postal stamp dated 19.06.1996 (OSR).
(6) Ex. DW-2/7 is the Delhi Jal Board bill dated 10.12.2001 (OSR).
Page no. 9 of 22 Chander Mohan Vs. Pratima & Ors.
(7) Ex. DW-2/8 is the MTNL bill dated 08.12.2002 (OSR).
17. I have heard Ld. Counsel for the plaintiff, Ld. Counsel for the defendants and have carefully gone through the record.
18. My issue wise findings as follows:-
Issue No. 3 & 4.
3. "Whether the defendant is entitled to a decree of mandatory injunction as prayed for"? OPD
4. "Whether the defendant is entitled to a decree of declaration as prayed for"?OPD
19. Both these issues are framed on the basis of counter claim of the defendants. Both these issues are taken up together as they are interconnected.
20. By way of the present suit, the plaintiff is seeking very limited relief of permanent and mandatory injunction that the defendants be restrained from raising illegal wall in front of the exhaust fan of the plaintiff and further to direct the defendants to remove the illegal wall in the back side of the property of the plaintiff.
21. On the other hand, the defendants by way of their counter claim are praying for declaration declaring that the plaintiff is entitled to the portion marked in blue colour in the site map Page no. 10 of 22 Chander Mohan Vs. Pratima & Ors.
attached and also to pass an order of mandatory injunction as a consequence to the declaration directing the defendants to remove the unauthorized encroachment made by the defendants in the portion marked in blue colour in the site plain.
22. DW-1 Smt. Pratima Devi @ Sushila Devi has been cross examined at length by Ld. Counsel for the plaintiff. DW-1 deposed that it is correct that the property where she is residing, was never purchased either by her or any of her family members. DW-1 volunteered that she is in possession of the same. DW-1 further deposed that Gopikant Mishra is her brother. She got married in 1968 and she has been residing in the same property with her parents. It is correct that his brother had given to the bank his address as that of temple i.e. Radhakrishanan Mandir. The same was her answer qua the bank account in the name of her husband. She volunteered that they have given the address of the mandir as the plaintiff is in the habit of refusing the postman whenever he comes to them. The plaintiff is in the habit of refusing the postman for last several years. DW-1 had made complaints to the postal authorities on several occasions in this regard but DW-1 did not remember the years of the same. She was not sure if the copy of the said complaints is placed on record. She has admitted that address where she is residing is not mentioned in any of the passbooks Ex. DW-1/2 to Ex. DW-1/4. DW-1 has denied the suggestion that the family of the plaintiff constructed the property which was allegedly encroached by the plaintiff, well within two years of their shifting. DW-1 did not Page no. 11 of 22 Chander Mohan Vs. Pratima & Ors.
make any complaint regarding the illegal construction to the MCD or DDA. Vol. She made complaint to the police. It is correct that no action has ever been taken by any of the said authorities qua the said alleged illegal construction. She further denied that the alleged encroached portion was got constructed in the year 1966-67. Vol. It is was raised after the year 1996. It is correct that DW-1 did not make any complaint to DDA or MCD since 1996 to 1998 regarding the alleged illegal construction raised by the plaintiff.
23. DW-1 further deposed that plaintiff also raised illegal construction in the year 2003 by demolishing their shed. No complaint was made to the DDA or MCD in this regard. Vol. It was made to the police. The copies of the complaints made to the police, already got stolen by the plaintiff from the house of DW- 1, when they attacked on 09.09.2005. DW-1 made a complaint to the police on 11.09.2005 in this regard. The said complaint is Ex. DW-1/7. She denied the suggestion that her complaint Ex. DW- 1/7 is silent regarding the theft of the complaints from her residence or regarding the demolition of the tin shed.
24. It is pertinent to mention herein that there is no mention of theft of any complaints by the plaintiff from the house of defendants, in any of the complaints made by the defendants.
25. During her further cross examination, DW-1 has been Page no. 12 of 22 Chander Mohan Vs. Pratima & Ors.
shown a photographs already placed on record to which DW-1 submitted that the exhaust fan shown at point A is at a distance of 6-7 feet away from the door of his house. Vol. The same opens towards the side of her courtyard. The photograph is Ex. DW- 1/P1. DW-1 admitted that her W.S. is silent regarding the fact that the exhaust fan at point A, shown in the photograph Ex. DW- 1/P1 opens in her courtyard. DW-1 has only one gate/door to enter in her house. Vol. Earlier there were two gates/doors out of which one (Western direction) was closed by the plaintiff and his family members. She made a complaint to the police in this regard but she did not remember the date, month or the year when the said gate was closed by the plaintiff. Copy of said complaint is not on record. She denied the suggestion that there is no gate in the said courtyard. A gate is there but the same is not reflected in any of the 13 photographs already on record. It is correct that once a complaint was made against DW-1 by the residents of the mohalla. She is not aware if any of the residents of the mohalla had gone to the police complaining that the said complaint was false. DW-1 did not take any action against any of the complainants for making false complaint against DW-1.
26. DW-1 has denied the suggestion that the exhaust fan at point A is not operating presently. The same was closed on 03.09.2005 but it was reopened by the plaintiff on 09.09.2005. She further denied the suggestion that the exhaust fan is still open since 09.09.2005. Vol. The same was closed by DW-1 with the help of clothe and polybag on 09.09.2005 itself. She denied the Page no. 13 of 22 Chander Mohan Vs. Pratima & Ors.
suggestion that interim order was passed by the court in this case. At this stage, the attention of the witness was drawn towards order dated 12.12.2005 which DW-1 admitted. Vol. That it is because of the court order that the exhaust fan was not closed by her thereafter. DW-1 has denied the suggestion that all the complaints made against the plaintiff and his family members were false and that is why no action on the same was ever taken. She further denied the suggestion that the house where DW-1 is residing belongs to the government or that she is in illegal possession of the same. DW-1 has admitted that she do not possess any title document qua the property where she is residing or also qua the portion shown in blue colour.
27. DW-1 further admitted that it is correct that the plaintiff is in possession of the portion shown in blue colour. Vol. It was snatched by the plaintiff. DW-1 again said that the said blue portion is being used and possessed by Yashpal. DW-1 never got served any legal notice to Yashpal or Chandermohan (plaintiff) regarding the taking back of the possession of the said blue colour. Vol. She had gone to them and it was promised by Bishamber Lal and Ram Lubhai to return the same. DW-1 further admitted that her written statement and the counter claim are silent regarding the fact of taking back of the possession of the blue colour and the said assurance of Bishamber Lal and Ram Lubhai. Vol. It is mentioned in the complaints. DW-1 never filed any case against said Yashpal for taking back the said blue portion.
Page no. 14 of 22 Chander Mohan Vs. Pratima & Ors.
28. In her cross examination dated 18.10.2019, DW-1 has deposed that she has not placed on record any document to show that the possession of the property of her father prior to 1947. She did not place on record any document with respect to the property where she is residing or its allotment or also any sale deed.
29. DW-2 Raj Kumar Jha has been cross examined at length by Ld. Counsel for the plaintiff. He has deposed that the address where he is residing has not been purchased nor allotted to any of his family members or relatives. Vol. The said property was inherited by his mother from her father i.e. maternal grandfather of DW-2. No sale deed has been executed in respect to the said property. He denied the suggestion that property no. D-1 was allotted to the father of the plaintiff. Vol. It was allotted to the grandfather of the plaintiff ad measuring 16-17 sq. yards. DW-1 admitted that the area in possession of the plaintiff as on day is 170 sq. yards. Vol. Including the blue marked area.
30. DW-1 has been asked specific question by Ld. Counsel for the plaintiff whether he placed on record any title documents/sale deed/power of attorney etc. to prove his ownership qua the property in question. To this question DW-2 answered "No". DW-2 further admitted that the site plan Ex. PW-1/D1 is not a government approved site plan.
Page no. 15 of 22 Chander Mohan Vs. Pratima & Ors.
31. DW-2 has further been put the question that the kitchen containing the exhaust fan was constructed about 55-60 years ago. To this question DW-2 answered "it is wrong". DW-2 had not filed any civil suit/case seeking injunction in any civil court at the time when the kitchen was constructed, however, DW-2 and his mother filed police complaints regarding the same. Vol. In this case they filed a counter claim for possession.
32. In his further cross examination dated 05.05.2011, DW-2 deposed that it is correct that he do not have any allotment letter or sale deed qua the property in question i.e. kitchen which has been shown in blue colour and the portion in brown colour in site plan Ex. PW-1/D1. DW-2 was put a question whether he mentioned in his written statement that he has been in possession of the dispute portion shown in blue colour in site Plan Ex. PW- 1/D1. Answering this question, DW-2 deposed "in para no. 1(e) of preliminary submissions of his written statement, he has mentioned that he was forcibly dispossessed by the plaintiff from the disputed portion in/around the year 2002". It is correct that in the year 2002, he did not file any civil suit against the plaintiff for taking possession of the blue portion. It is correct that the property in question i.e blue portion in site plan Ex. PW-1/D1 is in possession of the plaintiff and his family members. DW-2 has not filed any case against the plaintiff in any court as the plaintiff closed his way which has been shown in yellow colour in site plan Ex. PW-1/D1.
Page no. 16 of 22 Chander Mohan Vs. Pratima & Ors.
33. It is very much pertinent to mention herein that the court had warned DW-2 number of times in his cross examination dated 20.11.2019 as well as 05.02.2020 that he should answer the questions put by Ld. Counsel and not to give evasive answer. Further DW-2 has been warned to give clear and specific answer to the question put by Ld. Counsel and not to give evasive answers and irrelevant details which are not connected to the question.
34. DW-2 has been put a question by Ld. Counsel for the plaintiff whether he mentioned in any of the police complaint Ex. DW-1/7 to Ex. DW-1/13 that his way shown in yellow colour has been blocked by the plaintiff. To this question, DW-2 answered "No". To the question whether DW-2 placed on record any document to prove that he was in possession of blue portion in site Plan Ex. PW-1/D1, DW-2 answered that he has placed on record police complaint dated 18.08.1983 Ex. DW-1/16. DW-2 admitted that it is correct that he has no title document which can show that he and his family is the owner of portion blue colour in the site plan. It is further correct that defendants have not filed any complaint to the police, court or any other authority to remove kitchen which has been shown in the site plan in blue colour prior to the counter claim in the present suit.
35. So far as the counter claim of the defendants is concerned whereby the defendants are seeking different reliefs under the issues no. 3 and 4, the same deserve dismissal for the reasons that Page no. 17 of 22 Chander Mohan Vs. Pratima & Ors.
in respect of the area shown in blue colour in the site plan Ex. PW-1/D1, the defendants have no title documents. The defendants have not sought any relief in the counter claim to declare themselves to be owner of the land shown in the blue colour in the site plan Ex. PW-1/D1, either on the basis of adverse possession or otherwise. Furthermore, the defendants have not taken any action against the plaintiff at that very stage when it was required. Rather by way of their admissions in the cross examination, the defendants have admitted that they have no right title or interest in respect of the portion shown in blue colour in the site plan Ex. PW-1/D1. Both these issues are decided against the defendants and in favour of the plaintiff.
Issue No. 1 and 2.
1. "Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for"?OPP
2. "Whether the plaintiff is entitled to a decree of permanent injunction as prayed for"?OPP
36. Both these issues are taken up together as they are interconnected and can be decided simultaneously .
37. Plaintiff has been cross examined by attorney for the defendants. There he has deposed that the suit property was allotted to his grandfather. His family has been residing at the suit property of portion shown in green in Ex. PW-1/1 since 1952-55. The defendant no. 1 is residing at the portion shown Page no. 18 of 22 Chander Mohan Vs. Pratima & Ors.
yellow in Ex. PW-1/1 since last 20 years. The name of the brother of PW-1 is Yashpal. Where the exhaust fan is installed is the kitchen of PW-1. PW-1 knew the defendants for last 30-35 years when they were residing at the temple near the suit property. PW-1 could not tell as to why the defendant is raising wall in front of the exhaust fan of PW-1. PW-1 denied the suggestion that the kitchen in question belongs to the defendants. The kitchen in question was not existing at the time of allotment. It was subsequently constructed by his father about 30-35 years. The construction raised by them subsequently was not fully within the land allotted to them. The portion shown in blue mark A was not allotted to them.
38. PW-1 further deposed in his cross examination dated 13.09.2011 that his family came to know in the month of September, 2005 that the defendant was raising wall in front of exhaust fan which was installed in the kitchen at the suit property. Thereafter, PW-1 made police complaint against defendants. There is allotment letter Ex. PW-1/2 in favour of the plaintiff. The wall was constructed at night by the defendants. The defendants tried to raise the wall two times. The height of the wall is same as on today as it was on 09.09.2005. The land on which the kitchen is situated was never in possession of defendants. PW-1 denied the suggestion that on 03.09.2005, his father promised the defendants that they can close the exhaust fan. He further denied the suggestion that the exhaust fan was closed by the defendant on 03.09.2005. It is further wrong to Page no. 19 of 22 Chander Mohan Vs. Pratima & Ors.
suggest that on 09.09.2005 the plaintiff demolished the wall and again started the exhaust fan. After police stopped the construction no further construction was raised by the defendant.
39. It is further pertinent to mention herein that attorney of the defendants has been warned by the court that she should not ask irrelevant questions again and again and to confine her cross to the present case only.
40. PW-1 further deposed that father of defendant no. 1 never approached his father to take the land shown in Ex. PW-1/1 where the defendant is still residing. Defendant no. 1 had requested the father of PW-1 to grant him some land about 20 years ago. Before 20 years, the portion shown in yellow in Ex. PW-1/1 was open land.
41. In his further cross examination dated 22.02.2012 PW-1 deposed that the portion shown in colour yellow in site plan Mark X is open space and only one kitchen had been constructed there. The two rooms shown in colour yellow were not constructed at the time of allotment. The site plan Mark X is correct as per spot and the same is Ex. PW-1/D1. The plaintiff was allotted corner plot. It is seen that in the cross examination dated 22.02.2012 there is repetition of the cross examination dated 13.09.2011, hence not referred to here again.
42. PW-1 in his cross examination dated 10.09.2012 has Page no. 20 of 22 Chander Mohan Vs. Pratima & Ors.
deposed that it is correct that in the portion shown in blue where the kitchen is located, has water taps in it. The drained water from the kitchen goes into the bathroom located at Point X2 and X3 in the site Plan Ex. PW-1/D1. Again there is repetition of questions which have been asked from the plaintiff in his previous cross examination.
43. From the testimony of PW-1 including his cross examination, it is held that plaintiff has been successful in proving his case on the scale of preponderance of probabilities that he has the right to have the exhaust fan on his kitchen which the defendants cannot block by raising wall. On the other hand, the defendants have miserably failed to prove that they have any right title or interest on the land on which they want to raise the wall in front of the kitchen exhaust fan of the plaintiff as shown in the site plan Ex. PW-1/D1. The right of the plaintiff to have his kitchen open towards the gali is his easementary right. Otherwise also the exhaust fan is installed very far away from the gate/door of the defendants and it in no manner affects any rights of the defendants. It is further pertinent to mention herein that no medical documents have been filed by the defendants on record that they have suffered any kind of medical issue on account of the exhaust fan of the plaintiff. The defendants are quite habitual of filing and raising false pleas. Both these issues are decided in favour of the plaintiff and against the defendants.
Page no. 21 of 22 Chander Mohan Vs. Pratima & Ors.
Relief
44. In view of my discussions on the issues hereinabove, counter claim of the defendants is dismissed with no order as to costs.
45. The suit of the plaintiff is decreed with cost of the suit.
46. A decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendants, their attorneys, legal heirs or any other person through them and they are restrained from raising wall in front of the exhaust fan of the plaintiff as shown in red colour in the site plan Ex. PW-1/1.
47. Further decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants, their attorneys, legal heirs or any other person through them and they are directed to remove the wall in the back side of the property of the plaintiff shown in the red colour in the site plan, within 30 days from today.
48. Decree sheet be prepared accordingly.
49. File be consigned to the Record Room.
Pronounced in the open court (Kishor Kumar)
KISHOR
on 02.04.2022 KUMAR
JSCC/ASCJ/GJ (WEST)
Delhi : Digitally
by KISHOR
signed
KUMAR
Date: 2022.04.04
14:57:25 +0300
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