Delhi District Court
Sh. Sukhbir Singh H.U.F vs Smt. Aruna Singh on 25 January, 2016
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No.420/2014
In the matter of
Sh. Sukhbir Singh H.U.F.
Through its Karta Sh. Sukhbir Singh, S/o late S. Varyam Singh
R/o A-210, Majlis Park, Delhi-110033 .....Plaintiff
Vs.
1. Smt. Aruna Singh, W/o Sh. Randhir Singh
2. Sh. Randhir Singh,
Both R/o House No.B-24(Part)
Shankaracharya Road, Adarsh Nagar, Delhi-110033 .....Defendants
Date of institution of the Suit : 28.03.2005
Date on which arguments were heard : 21.01.2016
Date of decision : 25.01.2016
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
Right to property is a very valuable constitutional right and in my considered opinion the same will include a right for protection of the property in a situation where there is apprehension of any damage due to any work being done in the ad-joining property but at the same time the owner of ad-joining property will also have the right to property and, therefore, naturally will enjoy the right to make any constructions in accordance with law. But certainly such right of ad-joining property owner has to be subservient to the right of the other person regarding protection from damage. In such a situation if a person asks the ad- joining property owner not to carry out any work which will tend to cause damage to his property and the ad-joining property owner files a suit for injunction, the precise question will relate to the onus as to who is Sukhbir Singh Vs. Smt. Aruna Singh & Anr. 1 required to establish the apprehension of damage or non apprehension thereof. In my opinion it will depend on the distance/proximity between two properties. If the distance is very short or negligible, the onus should lie on the person who wants to carry out any work in his property and he shall be liable to show that his activity will not damage the property of the other. On the other hand if the distance is sufficiently large, onus will be on the person who apprehends damage.
2. Layman cannot opine about feasibility of damage to one property on account of work to be carried in ad-joining property. It has to be established through experts of the matter like Architects, Engineers. As such, we have to concentrate as to whether any expert opinion has been established or not.
3. In the present case, certain expert opinions have been marked / exhibited such as, Inspection Report dated 20.07.2007, and Inspection Report dated 20.12.2014. However, none of the experts has been examined in the present case. In my opinion, these reports, therefore, cannot be relied upon. The witnesses i.e. Plaintiff and Defendant can obviously not establish as to what will be the effect on one property if any work is carried out in the adjoining property. Pertinently, Plaintiff and Defendant are laymen. Their depositions do not inspire confidence that they are able to claim any expertise. In such circumstances, the onus remained undischarged and, therefore, the party who is having onus will lose the case.
4. In the present case, the distance between two properties is zero as they are basically one property having single common roof. Therefore, the onus will lie on the person who wants to carry the work on his Sukhbir Singh Vs. Smt. Aruna Singh & Anr. 2 property and he shall have to show that such working will not tend to cause any damage to the second property.
5. Bearing in mind the above discussion, some factual position is provided for convenient reading. One Ajaywati and Aruna were joint owners of Property No.B-24 but the said Ajaywati sold her portion to Sukhbir Singh who wants to carry out certain construction activity in the said portion but the Aruna i.e. the owner of other portion alongwith her husband created interference apprehending damage to her property and consequently, the said Sukhbir Singh filed the present case for permanent injunction against Aruna and her husband. The Defendants contested the suit by filing WS primarily claiming that there was apprehension for damage and blaming that Plaintiff being a Builder by profession wants to construct flats after demolishing the portion with a view to make profit and further that the Plaintiff ought to have filed a suit for partition.
6. Ld. Predecessor framed following issues on 17.08.2005:-
1. Whether plaintiff is entitled for the decree of Permanent Injunction as prayed for?OPP
2. Whether suit is without cause of action?OPD.
3. Whether suit is bad by provision of Section 41(h) of Specific Relief Act?OPD.
4. Whether present suit is liable to be stayed in view of provision of Section 10 CPC?OPD
5. Whether plaintiff is not entitled to the relief in view of the facts stated in preliminary objection No.4 of WS?OPD.
6. Relief.Sukhbir Singh Vs. Smt. Aruna Singh & Anr. 3
7. During the evidence, Plaintiff examined himself as PW1 whereas Randhir Singh, husband of Aruna and Defendant No.2 in the present case examined himself as DW1. Both the sides have been heard. I now proceed to decide the controversy.
8. The Issue No.1 is taken up for consideration. Discussion in initial paragraphs shows that the Plaintiff has failed to discharge his onus and, therefore, he cannot claim entitlement for permanent injunction. The Issue No.1 is decided against the Plaintiff.
9. Issue No.2 is taken up for consideration. There is nothing in the WS which explains as to why no cause of action was available. A mere claim has been made in Preliminary Objection No.1 of the WS without providing any reason therefor. Such type of claims do not justify anything. (see the judgment of Division Bench of Hon'ble High Court of Delhi in Naveen Garg Vs. Rajrani Garg & Anr. RFA (OS) 163/2014 dated 19.08.2015). Issue No.2 is decided against Defendants.
10. Issue No.3 is taken up for consideration. Though no reason has been mentioned by the Defendants explaining as to what other efficacious remedy was available, the reading of entire WS suggests that it is the concept of partition which is being claimed by the Defendants. A bare perusal of the Sale Deed, a copy of whereof is Ex.PW1/A shows that the Ajaywati was claiming absolute ownership of eastern side half portion of the property. This shows that division was already in existence. As such, there was no need for the Plaintiff to claim partition of the property. The Issue No.3 is decided against the Defendants.
11. Issue No.4 is taken up for consideration. During the arguments, Sukhbir Singh Vs. Smt. Aruna Singh & Anr. 4 it was brought to the notice of the court that the other suit has already been dismissed. As such, the issue goes against the Defendants.
12. Issue No.5 is taken up for consideration. The issue is based on Preliminary Objection No.4 of WS which starts with an assumption that Plaintiff is seeking division of the property. A bare perusal of the Sale Deed, a copy of whereof is Ex.PW1/A shows that the Ajaywati was claiming absolute ownership of eastern side half portion of the property.
This shows that division was already in existence. As such, there was no need for the Plaintiff to claim division of the property. The other facts mentioned in the said preliminary objection are about damages to the property of Defendants. As discussed earlier, the Plaintiff has failed to show that there was no chance for damages. Though it appears that the onus of this issue was on the Defendants, I am of the view that after conclusion of trial, the question of placing of onus in respect of issues becomes immaterial and it is the entire evidence available on record which has to be considered for decision. Since there can be possibility of damage in one property if any work is carried out in the adjoining property having zero distance, more particularly in the roof of the property, the Plaintiff cannot claim any right to carry on such activities. The issue goes in favour of Defendants.
13. In view of the above discussion, the suit is dismissed. Defendants shall be entitled for cost from the Plaintiff to be calculated as per rules. Decree be prepared accordingly.
Announced in the open (RAKESH KUMAR SINGH)
court today on 25.01.2016 CJ-11/CENTRAL/DELHI
Sukhbir Singh Vs. Smt. Aruna Singh & Anr. 5