Delhi District Court
Prem Wadhwa vs Vijay And Anr on 30 April, 2024
IN THE COURT OF SH. AJEET NARAYAN: CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 3622/17
In the matter of:
Sh. Prem Wadhwa
S/o Late Sh. Mool Chand
C/o A14, Haathi Khana,
Azad Market, Delhi .... Plaintiff
VERSUS
1. Sh. Vijay
S/o Sh. Govind Ram,
Gali Dakhana, Subzi Mandi,
Delhi.
2. North Delhi Municipal Corporation
Through Its Commissioner,
Civic Centre, Delhi. ....Defendants
Date of Institution: 17.11.2017
Date of reserving the judgment: 17.02.2024
Date of Judgment: 30.04.2024
Final Judgment : Suit Decreed.
JUDGMENT
(Suit for Permanent and Mandatory Injunction)
1. This suit has been filed by the plaintiff, Sh. Prem Wadhwa against defendants namely, Shree Vijay and North Delhi Municipal CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 1 of 22 Corporation (now MCD), seeking a decree of permanent injunction against defendant No. 1, Vijay, thereby restraining him and his agent etc., from raising unauthorized and illegal construction in the suit property and seeking a decree of mandatory injunction against defendant No. 2, MCD, directing it to demolish the unauthorized and illegal construction raised by defendant No. 1 in the suit property, along with the cost of the suit.
PLAINTIFF'S VERSION
2. The brief facts of the case are that the plaintiff is the owner of property No. 122, Ward No. XII, Gali Dakkhana, Subzi Mandi, Delhi (hereinafter referred to as the "Suit Property") having purchased the same from its erstwhile owner namely, Sh. Narain Dass Valecha vide registered Sale Deed dated 23.09.1994.
2.1 It is further submitted that at the time of purchase of the suit property, the plaintiff also purchased the adjoining properties and the said properties, including the suit property were occupied by old tenants. It is further submitted that defendant No.1 was not the tenant in any of the portion of the suit property, but was residing at 102, Ward No. XII, Gali Dakkhana, Subzi Mandi, Delhi. It is further submitted that after the purchase of the suit property some of the tenants have surrendered the possession of the portion under their tenancy, to the plaintiff. The portion under the possession of the plaintiff in the suit property is shown in CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 2 of 22 green in the site plan.
2.2 It is further submitted that during the past sometime, defendant No.1 in collusion with some old tenants and/ or their legal heirs/representatives as detailed at Sr. No. 13, 1517 of the AnnexureB, came in possession of the part of the suit property, which earlier was under
the use and occupation of the said tenants. Defendant No.1 also claimed himself to be the grandson of late Smt. Jiwan Bai who was a tenant in one portion of the suit property. However, there is no record to show that defendant No.1 is the grandson of said Smt. Jiwan Bai. The site plan showing the portion occupied by defendant No.1 as an unauthorized occupant has been duly shown in red in the site plan attached as AnnexureC. 2.3 It is further submitted that plaintiff on coming to know about the same objected to the same and requested defendant No.1 to vacate the said part of the suit property of which the plaintiff is the legal, sole and absolute owner. However, defendant No.1 did not give any heed to the requests of the plaintiff. It is further submitted that defendant No.1 and his son are known bad element of the area and is having his links with the gunda/antisocial elements, therefore, the plaintiff did not take any action against the said defendant No.1 and his son as defendant No.1 had also extended threats to the plaintiff of dire consequences. Defendant No.1 had even threatened to implicate the plaintiff in false cases in case the plaintiff CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 3 of 22 took any action for dispossessing defendant No.1 from the suit property.
2.4 It is further submitted that now for the last about 10 days, defendant No.1 has started carrying out unauthorized and illegal construction in the red portion of the suit property without any oral and/ or written consent of the plaintiff in an illegal and unlawful manner without any sanction plan and totally in contravention and violation of the MCD building byelaws and other norms and rules of the Government.
2.5 It is further submitted that there existed open to sky courtyard in the middle of the suit property where a hand pump was fixed which was being used commonly. Defendant No.1, in an illegal and unlawful manner has started covering the open to sky courtyard, with a view to make out extra space. The common space/are which is being used by all the occupants of different portions in the suit property is shown in yellow in the site plan attached. Defendant No.1 has also blocked the access of other occupants of the suit property to a common toilet and bathroom by erecting a brick wall in front of the same. Defendant No.1 has also erected a wall in front of the kitchen and room, which is in possession of the plaintiff and has also removed the handpump fixed in the open courtyard.
2.6 It is further submitted that defendant No.1 has demolished the different portions in his possession from different tenants and has changed the structure of the suit property with the intentions to construct a big hall CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 4 of 22 and other structure by encroaching upon the common as well as adjoining government area also which is on the side of the suit property.
2.7 It is further submitted that defendant No.1 intends to raise illegal and unauthorized construction and if the said unauthorized construction is allowed to be carried out, the plaintiff's entire easement rights like air, sunlight, ingress and egress would be hindered/curtailed. It is further submitted that the entire suit property and the adjoining properties are very old and in a very dilapidated condition, therefore, any construction condition minor or major is likely to cause danger/ damage to the life and safety of properties including the suit property in possession of the plaintiff and the occupants thereof.
2.8 It is further submitted that the plaintiff on 07.11.2017 had requested defendant No.1 not to go ahead with carrying out any unauthorized construction as it is very likely to cause danger and damage to the property of the plaintiff, defendant No.1 started misbehaving with the plaintiff and also threatened the plaintiff with dire consequences that in case he tries to stop or make complaint, then he would make a false case registered and get arrested from the local police as he is having very high up connections in police. Defendant No.1 also threatened the plaintiff of committing suicide and naming him in a false case, in case the plaintiff tries to get the possession of the suit property and/or in any manner stops defendant No.1 from carrying out illegal and unauthorized construction as CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 5 of 22 aforesaid.
2.9 It is further submitted that in these circumstances, the plaintiff was constrained to lodge a complaint to defendant No.2/MCD and the police station Subzi Mandi, Delhi on 08.11.2017 and to the concerned police officials on 09.11.2017, and again the plaintiff was compelled to file another complaint dated 13.11.2017 with defendant No.2 and also to other authorities, but all in vain. Hence, the present suit is filed with the following reliefs:
a) Pass a decree of permanent injunction in favour of the plaintiff and against defendant No.1, thereby restraining defendant No.1, their agents, successors, labourers, servants, representatives, attorneys etc. or any other person acting on his behalf from raising unauthorized and illegal construction in the suit property i.e. Property No. 122, Ward No. XII, Gali Dakkhana Wali, Subzi Mandi, Delhi110006, more specifically shown in Red in the site plan attached with plaint as AnnexureC.
b) Pass a decree of mandatory injunction in favour of the plaintiff and against defendants, thereby directing defendant No.2 to demolish the illegal and unauthorized construction raised by defendant No. 1 in the suit property No. 122, Ward No. XII, Gali Dakkhana Wali, Subzi Mandi, Delhi110006, more specifically shown in Red in the site plan attached with plaint as AnnexureC. CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 6 of 22
c) Cost of the suit.
DEFENDANT'S VERSION
3. Summons of the suit for settlement of issues were issued and served upon the defendants, in pursuance of which, defendant No.1 filed his written statement. It is averred by defendant No. 1 that the plaintiff is neither the owner nor landlord of the property in question i.e. Property No. 122, Gali Dakkhana Wali, Old Subzi Mandi, Delhi, nor he has submitted any copy of this alleged title deed qua the suit property, hence the plaintiff has got no locus standi to maintain the present suit and the present suit merits outright dismissal with costs. That defendant No.1 is not and has not raised any illegal or unauthorized construction in the suit property and is getting his tenanted premises renovated in order to make it habitable for which no prior permission or sanction is required from the concerned MCD. That no cause of action has ever arisen in favour of the plaintiff and against defendant No.1 in filing this suit, hence, suit merits outright dismissal U/o 7 Rule 11 CPC. It is further averred that the suit of the plaintiff is not maintainable as the plaintiff has no locus standi to file the present suit against the answering defendant.
3.1 It is further averred that the plaintiff herein is a chronic litigant and his modus operandi is to harass the tenants in the suit property CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 7 of 22 including the answering defendant. His two earlier suits filed by him against the answering defendant also stand dismissed in default which were filed by him qua the suit property vide Civil Suit No. 99/9/06 by the learned Court of Sh. Naresh Kumar Malhotra, ASCJ (N) Delhi vide order dated 14.09.2011. Thereafter, the plaintiff herein filed an application U/o 9 Rule 9 and Sec. 151 CPC and the said application of the plaintiff also stand dismissed by the Court of Ms. Shivali Sharma, Ld. SCJ Central, Delhi vide order dated 27.10.2014.
3.2 It is further submitted that the plaintiff also filed another suit against MCD and others including answering defendant no.1 as defendant No. 4 in the said suit, which suit bearing No. 95/2009 was for mandatory injunction and said suit was also dismissed by the court of law.
3.3 That the answering defendant No.1 is the lawful tenant in possession of the suit property after the death of his grandmother Smt. Jiwan Bai and has inherited the tenancy premises in question after the death of Smt. Jiwan Bai, hence defendant No.1 is the tenant in possession since long.
3.4 It is further submitted that the plaintiff has not come to this Court with clean hands and has not stated the true facts and suppressed material facts from this Court. In this respect it is submitted that the suit premises in question is a very old tenanted premises which was previously CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 8 of 22 under the tenancy of defendant No.1's grandmother Smt. Jiwan Bai at the agreed monthly rent of Rs.3.12 under the landlord ship of Satyawati Ravi Kumar and Shashi Kumar Mohatta and who were issuing the rent receipts to grandmother of defendant No.1. After the demise of grandmother of defendant No.1, the father of defendant No.1, Sh. Govind Ram had become tenant in the suit premises and after his demise defendant No.1 has become the lawful tenant in possession in the suit premises. However, no relationship of landlord and tenant ever been established between the plaintiff and defendant No.1 or his predecessors nor the plaintiff has ever claimed or produced any document of title over the subject property rather the plaintiff is a notorious person and is builder and he along with his goonda elements associates have been harassing and threatening defendant No.1 and his family members in order to get the suit premises vacated from defendant No.1 by hook and crook. Defendant No.1 has given numerous complaints against plaintiff and his associates, including complaint dated 09.07.2006 to the SHO of P.S. Subzi Mandi, Delhi. Rest of the contentions are denied by defendant No. 1.
4. No replication has been filed by the plaintiff to the written statement of defendant No.1.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 28.08.2018: CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 9 of 22
i) Whether the plaintiff is entitled to a decree of permanent injunction against defendant No.1, restraining the said defendant from raising unauthorized and illegal construction in the suit property, as prayed for in prayer clause A of the plaint? OPP.
ii) Whether the plaintiff is entitled to a decree of mandatory injunction against defendant No.2 to demolish the illegal and unauthorized construction raised by defendant No.1 in the suit property, as prayed for in prayer clause B of the plaint? OPP.
iii) Relief. PLAINTIFF'S EVIDENCE
6. In support of his case, the plaintiff got examined three witnesses. Plaintiff stepped into witness box as PW1. He relied upon the following document:
i) Ex. PW1/1 is the certified copy of the sale deed dated 2409 1994.
ii) Ex.PW1/2 is the list of tenants, is now deexhibited CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 10 of 22 and marked as Mark 'A'.
iii) Ex.PW1/4 is the site plan.
iv) Ex.PW1/5 is the photographs (colly).
v) Ex.PW1/6 is the complaints dated 08112017 (OSR).
vi) Ex.PW1/7 is the complaints dated 13112017 (OSR).
vii) Mark B is the complaint dated 09112017.
There is no document as Ex. PW1/3 as such and it is de exhibited in evidence affidavit.
PW1 was crossexamined at length by Ld. Counsel for the defendant.
7. PW2 is Sh. Vinod Kumar, from Sub Registrar office, who had brought the original record pertaining to the sale deed dated 2309 1994 registered with the office of Sub RegistrarI, Kashmere Gate, Delhi vide Registration No. 7776 in Addl. Book No. 1, Vol. 6603 on pages 53 58 presented on 23091994. The certified copy of the said sale deed on the record which is already exhibited as Ex. PW1/1, and that the same is as per record available with the Sub registrar office. PW2 was crossexamined by Ld. Counsel for the defendant No. 1.
8. PW3 is Sh. Manish Saxena, from Office Incharge, Building Department (Bldg.1), Civil Line Zone, North MCD, Delhi, has brought original summoned record in respect property No. 122, Gali Dak Khana, CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 11 of 22 Old Subzi Mandi, Delhi110007 regarding unauthorized construction and action taken report bearing File Nos. EE(B)I/CLZ/2018/D86 and EE(B) I/CLZ/2018/D15 both dated 08.01.2018. All the proceedings are in the form of three files. The photocopy of the first file bearing No. 36/EE(B) /Seal/CLZ with regard to the sealing of the property in question is Ex.PW3/1 (Colly. running into 46 pages) (OSR). The photocopy of the second file bearing No.326/C13/B1/CLZ/2017 with regard to the booking of the property in question is Ex.PW3/2 (Colly. running into 30 pages) (OSR) and the photocopy of the third file with regard to prosecution 1/2018 is Ex.PW3/3 (Colly. running into 20 pages) (OSR). He has deposed that the photocopies of the said files are exactly the same as per the original records with the department which PW3 have brought in the court. He has further deposed that he cannot say as to when the last demolition action was taken on the property in question or there is any stay from the Ld. Appellate Tribunal against the demolition of the property in question or not as he is only a Record Keeper and as per his knowledge the abovementioned files are complete in all respects and have all the relevant information therein. PW2 was crossexamined by Ld. Counsel for the defendant No. 1.
Thereafter, the plaintiff closed his P.E. on 23.08.2022.
DEFENDANT'S EVIDENCE
9. On the other hand, the defendant got examined 3 witnesses CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 12 of 22 including himself. Defendant No. 1 examined himself as DW1 by filing his evidence by way of affidavit Ex.DW1/A. He relied upon the following document:
i) Ex. DW1/1 is the certified copy of the order dated 14092011 passed in suit No. 99/9/06.
ii) Ex.DW1/2 is the certified copy of the order dated 27.10.2014.
iii) Ex.DW1/3 (colly) are the copies of the police complaints dated 09072006, 10.01.2008, 05.07.2008 and 31.07.2008 (OSR).
iv) Ex.DW1/4 (colly) are the copies of Adhar Card, Election Card and Ration Card of the Defendant No. 1.
v) Ex.DW1/5 is the photocopy of the electricity bill for the month of September, 1994 (OSR).
vi) Ex.DW1/6 is the is the photocopy of the Mark Sheet of Ms. Shilpi, which is now deexhibited and marked as Mark 'Z'.
vii) Ex.DW1/6 is the is the photocopy of the Birth Certificate of Ms. Laxmi, daughter of the Defendant No. 1.
DW1 was crossexamined at length by Ld. Counsel for the plaintiff.
10. DW2 is Sh. Baldev Raj. He tendered his evidence by way of CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 13 of 22 affidavit Ex.DW2/A. DW2 has deposed that he is the permanent resident of H. No. 120, Subji Mandi, Gali Dak Khana, Malka Ganj, Delhi and has stated that defendant No. 1 has been residing in the property No. 122, Ground Floor, Ward No. XII, Gali Dakkhana, Subzi Mandi, Delhi for the last more than 30 years. He has further deposed that defendant No. 1 has not raised any unauthorized and illegal construction in the suit property and has not violated byelaws of the MCD in any manner. DW2 was cross examined at length by Ld. Counsel for the plaintiff.
11. DW3 is Sh. Nitin. He tendered his evidence by way of affidavit Ex.DW3/A. DW3 has deposed that he is the permanent resident of H. No. 2530, TF, Punjabi Basti, Subji Mandi, Malka Ganj, Delhi and has stated that defendant No. 1 has been residing in the property No. 122, Ground Floor, Ward No. XII, Gali Dakkhana, Subzi Mandi, Delhi for the last more than 30 years. He has further deposed that defendant No. 1 has not raised any unauthorized and illegal construction in the suit property and has not violated byelaws of the MCD in any manner. DW3 was cross examined at length by Ld. Counsel for the plaintiff.
Thereafter, the defendant closed his D.E. on 18.12.2023.
FINDINGS
12. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issuewise findings are as CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 14 of 22 under: Both the issues, Issue Nos. 1 and 2 shall be taken together and decided at the same time as they are interconnected and same appreciation of evidence is required to decide both the issues:
1. Whether the plaintiff is entitled to a decree of permanent injunction against defendant No.1, restraining the said defendant from raising unauthorized and illegal construction in the suit property, as prayed for in prayer clause A of the plaint? OPP.
2. Whether the plaintiff is entitled to a decree of mandatory injunction against defendant No.2 to demolish the illegal and unauthorized construction raised by defendant No.1 in the suit property, as prayed for in prayer clause B of the plaint?
OPP.
13. The burden of proving both the issues is on the plaintiff. It is the claim of the plaintiff that he is the owner/landlord of the suit property and defendant No. 1 has unauthorizedly come in to the possession of suit property in collusion with some old tenants, claiming himself to be the legal heir/grandson of Late Jeewan Bai, who was a tenant in one portion of the suit property. But there is no record to show that defendant No. 1 is CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 15 of 22 grandson of said Jiwan Bai. On the other hand, defendant is claiming that plaintiff is neither the owner nor landlord of the property in question i.e. Property No. 122, Gali Dakkhana Wali, Old Subzi Mandi, Delhi and questioning his title and right to file suit. It is contented by the defendant No. 1 that he is the lawful tenant in possession of the suit property after the death of his grandmother Smt. Jiwan Bai and has inherited the tenancy premises in question after the death of Smt. Jiwan Bai, hence defendant No.1 is the tenant in possession since long. Also, defendant has not raised any illegal or unauthorized construction in the suit property and is getting his tenanted premises renovated in order to make it habitable for which no prior permission or sanction is required from the concerned MCD.
Coming to the question, whether plaintiff is the owner of the suit property or not, plaintiff has relied upon the certified copy of sale deed 24091994, which is Ex. PW1/1, which has been proved by the PW2, witness from concerned Subregistrar office. Perusal of said sale deed clearly shows that vide sale deed dated 23091994, erstwhile owner Shri Narain Dass Valecha, attorney of joint owners, Shri Ravi Kumar G. Mohatta, Shri Shashi Kumar G. Mohatta, Sh. Surender Kumar Mohatta, Sh. Vinod Kumar Mohatta, and Smt. Veena Mohatta has transferred the property bearing no. 121 to 128, in ward No. 12, Gali Dakhana Wali, Delhi, measuring 266.5 sq. yards to plaintiff Prem Wadhwa for the sum of Rs. 1,25,000/. The present suit pertains to property bearing no. 122, Ward No. XII, Gali Dakkhana, Subzi Mandi, Delhi. Hence, plaintiff has been able to clearly show that he is the owner of the said suit property. It has been CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 16 of 22 argued by the counsel of defendant that date 25091994, written on second page of sale deed, was Sunday, hence the sale deed is forged, but since official witness from Sub Registrar office has brought the original records, hence there is no ground to doubt the authenticity of documents. Therefore, the contention of defendant No. 1 that plaintiff is not the owner or landlord of suit property and sale deed is forged and fabricated is disproved and false, thereby liable to be discarded.
Coming to next question, it is the admitted by both the parties that Late Jiwan Bai was the tenant in the suit property. Now defendant claims that he is the lawful tenant in possession of the suit property after the death of his grandmother Smt. Jiwan Bai and has inherited the tenancy premises in question after the death of Smt. Jiwan Bai, on the other hand it is the case of plaintiff that defendant No. 1 is trespasser and not the legal heir of Late Jeewan Bai. The onus to prove this fact that defendant No. 1 has inherited the tenancy after death of Late Jiwan Bai and he is the grandson of Late Jiwan Bai, is on defendant.
DW1/Defendant No. 1 in his evidence has relied on many documents. Starting with first document, which are photocopies of Rent receipts issued in the name of Jeewan Bai, by Satyawati Ravi Kumar and Shashi Kumar, which are Mark X1 (colly), which were put to plaintiff during his cross examination, which were admitted by plaintiff, but it is not in dispute that Jeewan Bai was tenant in the suit property. Other set of documents relied upon by the defendant No. 1 are the electricity bill of year 1994 which is Ex. DW1/5 (OSR), Adhar Card, Voter Id Card, Ration CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 17 of 22 Card, of defendant which is Ex. DW1/4 (OSR), Mark Sheet of daughter of defendant No. 1 which is Mark Z and Birth Certificate of daughter of defendant No. 1 which is Ex. DW1/6 (OSR) to show that defendant No. 1 was residing at the suit property since long time. But this does not help the case of defendant as possession of suit property since long time will not prove that he was owner of the suit property especially in the face of clear title of plaintiff. Defendant has further relied upon copies of police complaint of different dates against the plaintiff which are Ex.DW1/3, and certified copies of order in earlier suit bearing no. 99/09/06, dated 1409 2011 and 27102014, between parties which was dismissed in default by the court which are Ex.DW1/1 and Ex.DW1/2, which also does not prove the case of defendant that he is the owner of the property. It merely shows that both parties had dispute in past. It is not the case of defendant that he is the owner of the suit property, he is claiming his possession in capacity of legal heir of Jeewan Bai. He has admitted in his cross examination that he has not filed any document with regard to his ownership. Defendant has examined two witnesses, DW2 and DW3, who are the neighbors and friend of defendant and has deposed that defendant No. 1 has been residing in the suit property for the last more than 30 years and he has further deposed that defendant No. 1 has not raised any unauthorized and illegal construction in the suit property. But the witnesses have admitted in their cross examination that they don't have the personal knowledge of the case and they know about the case through defendant No. 1 only, hence they cannot be the witness of unauthorized construction done in suit property.
CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 18 of 22Also, the present suit is not of recovery of possession or of title, hence the documents or witnesses relied upon by defendant for showing his long possession does not help the case of defendant.
Hence, defendant has failed to prove this fact that he has inherited the tenancy from Late Jeewan Bai. He has not filed any documents to show that he is the grand son of Jeewan Bai. Defendant No. 1 has not filed any document that his father Govind Ram was the son of Jeewan Bai. Therefore, defendant has failed to prove that he is grand son of Jeewan Bai and he has inherited tenancy from Jeewan Bai after her death.
Further coming to the question, whether defendant No. 1 has made any illegal and un authorized construction in suit property as claimed by the plaintiff. Plaintiff has summoned record from MCD qua suit property, regarding unauthorized construction and action taken report which are Ex.PW3/1, Ex.PW3/2, and Ex.PW3/3. Perusal of these files having report of unauthorized construction and action taken report, shows that vide file No No.326/C13/B1/CLZ/2017 dated 05122017, property was booked by MCD for unauthorized construction with remarks that "U/C in the shape of entire GF, FF and one room with partition wall as SF." In view of above, notice was given to the defendant by MCD under relevant sections of DMC Act and further sealing order was passed in March 2018 and one room at Second Floor was also sealed on 03122018. Plaintiff has also brought on record the complaints to MCD made against defendant on various dates 08112017, 09112017 and 13112017 which shows that defendant was raising illegal construction in suit property due to which CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 19 of 22 plaintiff has filed many complaints.
Also, coming to the cross examination of DW1, DW1 has admitted that prior to November 2017, there was a veranda at the center of H. No. 122 and the veranda still exists at the center of H. No. 122. During cross examination of DW1, two photographs showing existing position of verandah were brought by defendant/DW1, which are Ex. DW1/P1 and Ex. DW1/P2, which were taken by the defendant from his mobile, but no certificate under Section 65B of Indian Evidence Act was filed on record by the defendant. It is deposed by the DW1 that the space depicted in Ex. DW1/P1 and Ex. DW1/P2 is a covered space. Hence perusal of both the photographs shows that the photos does not depict any verandah and are closed space, so even as per the admission of defendant No. 1, unauthorized construction has been done in the suit property.
An injunction is a preventive remedy granted to a party aggrieved by the acts of another party, and thereby refrain the wrongdoers to pursue the acts performed by them, to evade any further injury and thus considers equity. The plaintiff claiming the relief of permanent injunction has to establish the breach of an obligation or infringement of a legal right. In the present case, plaintiff has clearly established that he is the owner of the property and he has legal obligation in his favour which defendant is bound to comply.
Thus, in light of the aforesaid discussion the court has come to the conclusion that the plaintiff has been able to discharge his onus on the balance of preponderance of probabilities.
CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 20 of 22In view of the abovementioned discussion, Issue Nos. 1 & 2 are decided in favour of the plaintiff and against the defendant No. 1.
RELIEF
14. In view of the above discussion, the suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendant No. 1, Sh. Vijay in the following terms:
(i) The plaintiff is held entitled to the relief of permanent injunction with respect to suit property, i.e., Property bearing No. 122, Ward No. XII, Gali Dakkhana Wali, Subzi Mandi, Delhi110006. The defendant No. 1 is hereby permanently restrained from raising any unauthorized and illegal construction in the suit property, more specifically shown in Red in the site plan attached with plaint as AnnexureC.
(ii) Further, the plaintiff is held entitled to the relief of mandatory injunction with respect to suit property, i.e., Property bearing No. 122, Ward No. XII, Gali Dakkhana Wali, Subzi Mandi, Delhi110006. Defendant No. 2, MCD is directed to demolish the illegal and unauthorized construction raised by defendant No. 1, Sh. Vijay, in the suit property, i.e., Property bearing No. 122, Ward No. XII, Gali Dakkhana Wali, Subzi Mandi, Delhi110006.
CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 21 of 22Costs of the suit are also awarded to the plaintiff.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Digitally signed by AJEET AJEET NARAYAN
NARAYAN Date:
2024.04.30
15:54:16 +0530
Announced in the open (Ajeet Narayan)
court today on 30.04.2024. Civil Judge 02 (Central), Tis Hazari Courts, Delhi.
CS No. 3622/17 Sh. Prem Wadhwa Vs. Sh. Vijay & Anr. Page 22 of 22