Delhi District Court
Amar Nath vs Reena on 18 April, 2026
THE COURT OF SHIV KUMAR :
DISTRICT JUDGE, (WEST)-02,
TIS HAZARI COURTS:DELHI.
RCA NO DJ No. 71/23
CNR DLWT-01-009512-2023
DLWT010095122023
Sh. Amarnath
S/o Sh. Phagu Ram
R/o Flat No. 207-B
First Floor, Paschim Puri
Paschim Vihar Extension
New Delhi-110063
..........Appellant
Versus
1. Smt. Reena
W/o Sh. Suresh Pahwa
R/o 207-C, DDA flats,
Paschim Puri,
Paschim Vihar Extension,
New Delhi-110063
2. Sh. Om Parkash
S/o Sh. Narender Singh
R/o 206-C, DDA Flats
Paschim Vihar Extension
New Delhi-110063
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 1/29
3. South Delhi Municipal Corporation
Through its Commissioner
At Civic Centre
Minto Road, New Delhi
4. Delhi Development Authority
Through its Vice Chairman
I.N.A Colony, Vikas Sadan,
New Delhi
......... Respondents.
APPEAL UNDER SECTION 96 CPC
AGAINST THE JUDGMENT AND
DECREE DATED 12.10.2023, PASSED BY
THE COURT OF MS VASUNDHARA
AZAD, LD. JSCC/ASCJ/GJ (WEST), TIS
HAZARI COURTS, DELHI IN SUIT NO.
357/17 TITLED AS 'AMARNATH VS
REENA & OTHERS.
Date of institution of the appeal : 28.11.2023
Date on which reserved for Judgment : 02.04.2026
Date of pronouncement of Judgment : 18.04.2026
JUDGMENT
1. This appeal has been filed under Section 96 CPC by the appellant against the judgment and decree dated 12.10.2023, passed by Ms Vasundhara Azad, ld. JSCC/ASCJ/GJ (West) Tis Hazari Courts, Delhi in suit bearing number 357/17, titled Amarnath Vs Reena & Others, whereby Ld. Trial Court had dismissed the suit of the plaintiff. The appellant herein was plaintiff in the main suit and the respondents herein were defendants in the main suit.
Brief facts of the case as per plaint of the appellant/plaintiff :
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 2/29
2. The plaintiff had filed the suit for permanent and mandatory injunction against the defendants and sought the following reliefs in the main suit:
(i) Pass a decree of permanent injunction against defendant no. 1 & 2, thereby restrain them, their associates, workman and family members etc. from raising unauthorized and illegal construction on the premises i.e. roof i.e. 3rd and 4th floor of flat bearing no.
207-B, First floor, DDA flats, Paschim Vihar Extension, New Delhi-110063 (hereinafter referred to as 'the suit property') whereas defendant no. 1 & 2 are residing at 207-C and 206-C, DDA flats, Paschim Vihar Extension, New Delhi-110063.
(ii) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants from demolishing the already raised unauthorzed and illegal construction at premises I.e. roof i.e. third and fourth floor of flat no. 206-C and 207-C Paschim Vihar Extension, New Delhi-110063.
3. It is averred in the plaint that defendant no. 1 and 2 has been residing at 207-C and 206-C DDA flats, Paschim Vihar Extension, New Delhi and the plaintiff is the resident of 207-B, first floor, DDA Flats, Pachim Vihar Extension, New Delhi-110063 and the second floor is occupied by above said defendant no. 1 Smt. Reena and she has been residing there alongwith her family.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 3/29
4. It is further averred in the plaint that defendant no. 1/Smt. Reena has raised unauthorized construction at the third floor by removing the water tanks of the plaintiff few years back. Now, the above said defendant no. 1 and defendant no. 2 raising unauthorized construction to make a flat at the fourth floor unauthorizedly.
5. It is further averred in the plaint that the defendant no. 1 & 2 have already constructed their unauthorized flats at the third floor and now adamant to raise the construction at the fourth floor which is totally illegal and unauthorized. It is further mentioned that defendant no. 2 has already constructed illegally and unauthorisely at the fourth floor.
6. It is further averred in the plaint that it is apprehended that building may fall as originally only three flats i.e. ground floor, first floor and second floor were constructed by the DDA. The above said defendant no. 1 & 2 without taking care the strength of the bulling are adamant to raise construction at the fourth floor, which caused the cracks in the building. It is further averred that earlier also the plaintiff lodged a complaint with the defendant no. 3 & 4 on 05.10.2016 but no action has been taken so far.
7. It is further averred that the illegal construction which is being raised is totally unauthorized against the MCD bye-laws, however, in spite of the number of complaints, the defendant no. 3 has not taken any action to stop the on going unauthorized construction and also not taken any action for the removal of already made unauthorized construction.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 4/29
8. It is further averred in the plaint that the defendant no. 4 is the authority who allotted the flats to the plaintiff and the defendants and the defendant no. 4 is also legally bound to check the unauthorized construction in the suit premises.
9. It is further averred in the plaint that plaintiff requested the defendant no. 1 & 2 for not raising the unauthorized construction on 03.10.2016 and thereafter number of times and again on 18.02.2017 and 19.02.2017 for not raising the unauthorized construction at the suit premises but they did not pay any heed.
10. It is further averred in the plaint that the unauthorized construction is very dangerous as the existing building does not have the strength to bear the load of extra floors and it may fall at any point of time causing serious loss of life and properties. Thus the appellant preferred the suit for permanent and mandatory injunction for restraining defendant no. 1 & 2 from carrying on unauthorized and illegal construction at the 3rd and 4th floor of the suit property and floor demolishing the already raised unauthorized and illegal construction at the 3rd and 4th floor of the suit property.
Case of defendant no. 1 &2 as per their written statement
11. Defendant no. 1 & 2 has filed joint written statement and taken preliminary objections that plaintiff has not come to the court with clean hands and suppressed the material facts in order to extort money from the defendants. It is further submitted that in paragraph 8 of the plaint, it is admitted by the plaintiff that the construction has been carried RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 5/29 out on the fourth floor and the terrace of the fourth floor also as per the site plant filed by the plaintiff, also shows the water tanks having been installed at the terrace/fourth floor which shows that the true state of affairs has been distorted, manipulated and concealed by the plaintiff.
12. It is further contended in the written statement that defendant no. 2 has already carried out the construction as alleged, then the part of the current suit wherein the prayer for permanent injunction/interim injunction is asked for, does not lie against the defendant no. 2 because permanent injunction is against a threatened act.
13. It is further contended that there is no cause of acstion in favour of the plaintiff hence the suit of the plaintiff is liable to be dismissed under order 7 rule 11 CPC. It is further contended that suit of the plaintiff is bad for mis-joinder and non-joinder of the necessary parties and hit by the provision of section 41(j) f the Specific Relief Act.
14. It is further contended that plaintiff has deliberately, intentionally and purposefully failed to serve the mandatory notice u/s 80 of CPC. On merit most of the contents of the suit have been denied. It is specifically denied that defendant no. 1 & 2 are raising unauthorized construction to make a flat at the fourth floor unauthorizedly. It is submitted that the defendants are carrying out the necessary repairs at the Mumti/stairs and other places at their own expenses but unfortunately the plaintiff is trying to distort the issue in a desperate effort to extort money from from the defendants.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 6/29 Case of defendant no. 3 as per as per its written statement
15. The defendant no. 3 has filed its separate written statement and has taken preliminary objections that the present suit is not maintainable for want of statutory notice under section 477/478 of DMC Act, 1957, which is mandatory in nature. It is further contended that there is no cause of action against the defendant no. 3, hence the suit is liable to be dismissed under order VII rule 11 CPC. It is further contended that the site plan is not legible and same is not in accordance with the site.
16. It is further contended that the properties bearing no. 206- C & 207 C, DDA flats, Paschim Vihar Extension, New Delhi were inspected by the field staff of Building Department of West Zone/SDMC and found that neither any fresh construction nor building material were stacked at site. However, the construction of third floor at the suit properties are old and occupied except the construction of brick wall about eight feet height carried out in recent past between common stair- case of these two flats above third floor for the Mumty ( without roof) portion only and the answering defendant will take action according to the provisions of DMC Act. On merit, it is submitted that most of the paras need no reply as the same does not pertain to defendant no. 3.
Case of defendant no. 4 as per its written statement.
17. Defendant no. 4 has also filed its separate written statement and has taken preliminary objections that present suit is not maintainable against defendant no. 4 or that plaintiff has no cause of RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 7/29 action against defendant no. 4, hence the case is liable to be dismissed under order 7 rule 11 CPC. It is submitted that the statutory responsibility and authority to make cognizance of illegal and unauthorized construction is with civic body herein South Delhi Municipal Corporation i.e. defendant no. 3.
18. Plaintiff filed replication to the written statement of defendant no. 1 to 3 and denied all the objections taken by the defendants.
ISSUES
19. From the pleading of the parties following issues were framed by ld. Trial Court vide order dated 19.03.2018:
1. Whether the plaintiff has not come to the court with clean hands? OPD1 & 2
2. Whether the suit is without any cause of action and liable to be rejected under order 7 rule 11 CPC? OPD1 &2
3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD1 & 2
4. Whether the suit is hit by Section 41(J) of Specific Relief Act and liable to be dismissed? OPD1 & 2
5. Whether the suit is bad for want of statutory notice under Section 477/478 of DMC Act? OPD-3
6. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 8/29
7. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
8. Relief.
EVIDENCE OF THE PLAINTIFF
20. In order to prove the case, appellant/plaintiff has examined himself as PW-1. The plaintiff tendered his affidavit in evidence as Ex. PW1/A and relied upon the following documents:
1) Copy of his Aadhar Card as Ex. PW-1/( OSR),
2) Copy of complaints Ex. PW-1/2 to Ex. PW-1/7
3) Site plan Ex. PW-1/8.
21. PW-1 has been cross-examined by Ld. counsel for defendant no. 1 & 2 and thereafter vide order dated 10.01.2019, the PE stands closed.
EVIDENCE OF THE DEFENDANT NO. 1 & 2
22. The defendant no. 1 has examined himself as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/A. The defendant no. 1 has been duly cross-examined by ld. counsel for the plaintiff.
23. Defendant no. 2 also tendered his evidence by way of affidavit Ex. DW-2/A. The defendant no. 1 has been duly cross- examined by ld. counsel for the plaintiff.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 9/29
24. Vide separate statement of ld. counsel for defendant no. 1 & 2, the evidence stands closed on 24.03.2023.
EVIDENCE OF THE DEFENDANT NO. 3 & 4
25. No evidence has been led on behalf of defendant no. 3 & 4.
Grounds taken by the appellant for challenging the impugned judgment and Decree.
1. It is contended that the judgment and decree passed by the Ld. Trial Court is based on conjectures and surmises and against the settled principle of law and such suffer from illegality and therefore liable to be set-aside.
2. It is further contended that the impugned judgment passed by the ld. Trial court is based on assumptions and presumptions and no sound and cogent reason has been assigned while passing the judgment.
3. It is contended that ld. Trial Court did not apply its judicial mind and passed the impugned judgment and decree casually and hurriedly.
4. It is further contended that ld. Trial Court did not consider the facts on record judiciously and erroneously passed in impugned order.
5. It is further contended that ld. Tiral Court has failed to appreciate that as per the Building Bye-laws and MPD-2021 construction over the DDA flat is not permissible being constructed on the Standard plan and no construction over the Second floor is permissible and the entire construction over the roof RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 10/29 of the Second floor i.e. third floor and fourth floor is illegal and unauthorized.
6. It is further contended that there is no protection available for raising illegal and unauthorized construction over the roof of the second floor i.e. third floor and fourth floor and as such the illegal and unauthorized construction raised over the roof of the second floor i.e. third floor and fourth floor is illegal and liable to be demolished.
7. It is further contended that ld. Trial court failed to appreciate that defendant no. 1 to 3 acted in connivance and in collusion with each other and it is because of this reason no action as warranted under section 343/344 of the DMC Act has been taken by the defendant no. 3/MCD despite inspecting and noticing the illegal and unauthorized construction being raised by the defendant no.1 & 2.
8. It is further contended that ld. Trial Court failed to appreciate the fact that the suit property was a DDA built up property and the flats were constructed upto second floor and there was no third floor at all.
9. It is further contended that ld. Trial court failed to appreciate that both the defendant no. 1 & 2 have admitted that the third floor was already constructed and defendant no. 1 has admitted in his cross-examination that she purchased the flat at second floor.
10. It is further contended that ld. Trial court also failed to appreciate that defendant no. 1 has also stated in her cross-examination that the third floor was already built up over second floor when she purchased the flat no. 207-C.
11. It is further contended that ld. Trial Court also failed to appreciate that defendant no. 1 in her cross-
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 11/29 examination has stated that she did not check whether the construction at the third floor was legal or illegal.
12. It is further contended that ld. Trial Court also failed to appreciate that the documents Ex. DW1/B (Colly) Ex. DW-1/C are the ownership paper with regard to second floor.
13. It is further contended that ld. Trial Court failed to appreciate that the defendant no. 1 was also intending to raise unauthorized construction over the roof of the third floor.
14. It is further contended that ld. Trial Court has failed to appreciate that the defendant no. 1 raised unauthorized construction over the Second floor.
15. It is further contended that ld. Trial court has also failed to appreciate that defendant no. 2 has admitted that she purchased the flat bearing no. 206C, DDA flat, Paschim Vihar Extension, at the second floor. However, he has also admitted that there was construction at the third floor.
16. It is further contended that Ld. Trial Court has failed appreciate that in his testimony DW-2 has stated that the cannot say if the construction over the flat no. 206-C which is at Second floor is illegal or not.
17. It is further further contended that ld. Trial Court has failed to appreciate that the defendant no. 2 in his cross-examination has admitted that the terrace of Flat No. 206C is fully covered i.e. Third Floor is having 100% coverage.
18. It is further contended that Ld. Trial Court failed to appreciate that the defendant no. 3 in his written statement has averred that the property bearing no. 206C and 207C, DDA Flat, Paschim Vihar Extension was inspected by the Field Staff and the construction of Third Floor of the suit property are old and occupied except the construction of brick wall about 8 ft. height carried out in RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 12/29 the recent past between the stairs of these two flats above Third Floor for the Mumty.
19. It is further contended that because as per the written statement filed by defendant no. 3 the construction at the Third Floor and over the Third Floor is illegal and unauthorized and they were contemplating to take action.
FINAL ARGUMENTS
26. I have heard final arguments advanced by counsel for parties and perused the Trial Court record and written arguments filed on behalf of appellant and on behalf of respondent no. 1 &
2. Written Submission of Appellant.
27. It is averred in the written arguments that the present impugned judgment is wholly unsustainable in law as well as on facts and suffers from serious infirmities, non-application of mind and mis-appreciation of evidence.
28. It is further averred that the entire dispute revolves around the fact that the respondents have raised construction beyond the sanctioned structure i.e. over and above the second floor, which is impermissible in DDA constructed flats built as per standard plan.
29. It is further averred that ld. Trial court gravely erred in dismissing the suit despite clear and unequivocal admissions on record. It is further submitted that both respondent no. 1 and 2, in RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 13/29 their respective testimonies have admitted that they had purchased their respective flats as second floor units. It is further come on record that the terrace above the second floor stands fully covered and is under their possession. Such admission go to the root of the matter and clearly establish that construction exists beyond the sanctioned level.
30. It is further averred that ld. Trial Court failed to appreciate that in the case of DDA flats constructed as per standard design, no independent construction over and above the second floor is permissible. It is further averred that in the present case, the respondents have not placed on record even a single document to show that the alleged third floor construction was ever sanctioned or regularized by any competent authority.
31. It is further averred that the entire reasoning adopted by the ld. Trial Court appears to be based on the premise that the construction is "old" and not "recent", which is legally untenable. It is submitted that unauthorized construction, whether recent or old, continues to remain illegal unless it is duly regularized in accordance with law.
32. It is further averred that ld. trial court also erred in holding that the appellant failed to prove unauthorized construction due to absence of expert evidence such as structural report of official lay out plan. It is submitted that the requirement of expert evidence arises only when technical issues such as structural safety are in dispute. In the present case, the issue is not RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 14/29 whether the construction is structurally safe, but whether it is authorized as per law. The moment it is shown that construction exists beyond the sanctioned second floor and no approval exists for the same, the illegality stands established.
33. It is further averred that the burden of proof has been wrongly shifted upon the appellant. Once the appellant established that the respondents are owners/occupants of second floor flats and construction exists above the same, the onus shifted upon the respondents to prove that such construction was authorized. The respondents have miserably failed to discharge this burden. They have not produced any sanctioned plan, permission, or regularization document.
34. It is further averred that the contention of the respondents that they have merely carried out repairs in the common staircase is clearly an afterthought and stands falsified by their own admissions. The evidence on record shows that the entire terrace has been covered and is being used as a functional floor. Ld. counsel for the appellant submitted that the judgment relied upon by the respondents titled as Rajender Motiwani & Anr. Vs MCD & Ors. is wholly misplaced and distinguishable on facts.
35. It is submitted that it is settled principle of law that courts cannot grant protection to illegal and unauthorized constructions and the present appeal deserves to be allowed and RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 15/29 the impugned judgment and decree dated 12.10.2023 is liable to be set aside.
Written Submissions of respondent no. 1 &2
36. Written Synopsis has been also been filed on behalf of respondent no. 1 & 2 and it is submitted that respondent no. 1 & 2 have not raised any unauthorized construction in the suit property in any manner and they have repaired the common stairs case ( Monty) which is used by the owners of all flats and to protect the rain water in stairs, for which the appellant has filed the case against the respondents. It is further averred that as per status report/written statement of defendant no. 3/SDMC, there is no fresh construction on the flat no. 207/C, Second floor and 206-C, Second floor, DDA flats, Paschim Puri, Paschim Vihar Extn., New Delhi are old one, almost 20 years back.
37. It is further submitted that the appellant has not placed on record before the Ld. Trial Court any document to show the official layout plan of suit property, in order to show the alleged unauthorized construction. It is further submitted that no witness has been summoned from the concerned Government department to establish the exact unauthorized construction. It is further submitted that the appellant has failed to place on record any safety report of the building through a recognized Structural Engineer to show that the building is old and any kind of construction over the same will cause damage to the property of appellant.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 16/29
38. It is further submitted that the appellant has not brought on record any evidence of expert or any document prepared by any expert to highlight the impact of unauthorized construction in respect of the suit property and in the absence of the same, the version of appellant with respect to the averments that building is week, cannot be relied upon. It is submitted that ld. Trial court has rejected the plaint on the basis of judgment titled " Rajender Motiwani & Anr. Vs M.C.D & Ors. RSA No. 243/2017 decided on 16.10.2017 by the Hon'ble High Court of Delhi.
Analysis and findings
39. By way of present appeal, the appellant has prayed for setting aside the impuged judgment and decree dated 12.10.2023, passed by Ms Vasandhura Azad, Ld. JSCC/ASCJ/GJ/ WEST District, Delhi.
40. Vide order dated 19.03.2018 ld. Trial Court had framed the following issues:
1. Whether the plaintiff has not come to the court with clean hands? OPD1 & 2
2. Whether the suit is without any cause of action and liable to be rejected under order 7 rule 11 CPC? OPD1 &2
3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD1 & 2
4. Whether the suit is hit by Section 41(J) of Specific Relief Act and liable to be dismissed? OPD1 & 2 RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 17/29
5. Whether the suit is bad for want of statutory notice under Section 477/478 of DMC Act? OPD-3
6. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP
7. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
8. Relief.
41. By way of impugned judgment and decree, the ld. Trial court has dismissed the suit of the appellant. By way of impugned judgment, ld. Trial Court has decided issue no. 1, 2, 3,4 & 5 in favour of the appellant and against the respondents. Ld. Trial court has decided issue no.6 & 7 against the appellant and in favour of respondents.
42. Afer perusing the Trial court record as well as case file of present appeal, written submissions of parties and hearing the arguments from ld. counsels for the parties, following points for consideration have been made for deciding the present appeal.
POINTS FOR CONSIDERATION
43. 1. Whether the appellant has succeeded in proving unauthorized construction upon the suit property?
2. Whether any legal right of appellant has been affected/infringed due to alleged unauthorized construction upon the suit property?
3. Whether the impugned judgment and decree dated 12.10.2023, passed by ld. Trial Court are against the settled princples of law and are based upon RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 18/29 assumptions and presumptions and have been passed without giving any sound and cogent reason?
4. Whether ld. Trial Court has failed to properly appreciate the facts of the suit and evidence led in the suit by the parties, including admissions made by the respondents in cross-examination?
POINT NO. 1 & 2
44. This court has taken up point no. 1 & 2 for determination.
1. Whether the appellant has succeeded in proving unauthorized construction upon the suit property?
2. Whether any legal right of appellant has been affected/infringed due to alleged unauthorized construction upon the suit property?
45. Plaintiff/PW-1 has deposed in his examination in chief that defendant no. 1 alongwith her family members is residing at 2nd floor of suit property having flat no. 207C and has unauthorizdly constructed third floor by removing the water tanks of the plaintiff few years back.
46. PW-1 has further deposed in his examination in chief that defendant no. 2 is residing at flat no. 206C. He further deposed that defendant no. 1 & 2 have already constructed unauthorized floors at third floor. He further deposed that defendant no. 1 & 2 are raising unauthorized construction to make a flat at fourth floor.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 19/29
47. During cross-examination, PW-1 has deposed that the flat no. 206C ( which belongs to defendant no. 2) is not above his flat no. 207B. He further deposed that the said flat no. 206C is not adjacent to his flat.
48. PW-1 has denied the suggestion that the construction on the third floor of both the flat no. 206C and 207 C is older than 20 years. He further deposed that flat no. 206C got completed in October, 2016 and construction over flat no. 207C took place around 2-3 years back. He further deposed that he made complaints regarding the raising of construction on the third floor of flat no. 206C.
49. During cross-examination, PW-1 deposed that no such construction has been shown on the fourth floor in the site plan filed by him Ex. PW-1/8.
50. In the examination in chief, the PW-1 has not mentioned any date, month and year of raising construction at the 3rd floor by defendant no. 1.
51. I have perused the complaints Ex. PW-1/3 to Ex. PW-1/7 filed by the plaintiff. In the said complaints also it is mentioned that third floor has been constructed by defendant no. 1 few years back. In the said complaints also no date, month and year of raising construction upon third floor by defendant no. 1 has been mentioned by the plaintiff.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 20/29
52. The defendant no. 1/DW-1 has deposed during cross- examination that flat bearing no. 207C was purchased approximately 25-26 years back. She further deposed that third floor was already built up over the second floor when she purhcased the flat bearing no. 207C. DW-2 has deposed during cross-examination that he purchased the second floor in the year 2001 and the construction at the third floor was already existed when he purchased the flat in the year 2001. No suggestion on behalf of plaintiff has been given to defendant no. 1 & defendant no. 2 regarding not constructing the third floor at the time of purchase of flat no. 207C & 206 C by defendant no. 1 & 2, rather suggestion has been given to the defendant no. 1/DW-1 that " it is wrong to suggest that I have raised unauthorized construction at the third floor and at the time of purchase of second floor'.
53. Defendant no. 3 has filed written statement by avering that the properties bearing no. 206-C & 207 C, DDA flats, Paschim Vihar Extension, New Delhi were inspected by the field staff of Building Department of West Zone/SDMC and found that neither any fresh construction nor building material were stacked at site. However, the construction of third floor at the suit properties are old and occupied except the construction of brick wall about eight feet height carried out in recent past between common stair-case of these two flats above third floor for the Mumty ( without roof) portion only and the answering defendant will take action according to the provisions of DMC Act.
RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 21/29
54. The plaintiff has not examined any witness to prove that the third floor has been constructed by defendant no. 1 & 2 in October. 2016 as well as 2-3 years back respectively. The plaintiff has not exhibited photographs of the suit property in his evidence. There is no evidence on record except the bald statement made by the plaintiff in his cross-examination that third floor was constructed by defendant no. 1 in October, 2016 and by defendant no. 2 in 2-3 years back and the same is not reliable.
55. From the testimonies of DW-1 & DW-2, it is proved that the third floor was already constructed on the flat no. 207C & 206C of defendant no. 1 & 2 when defendant no. 1 purchased the said flat 25-26 years back and defendant no. 2 purchased the said flat in the year 2001.
56. The MCD has alleged in the written statement that the construction of brick wall about 8 ft. height has been carried out in a recent past between common stairs of flat no. 206C and 207C, above third floor for the Mumty portion ( without roof). The MCD has not led any evidene to prove the said fact. The MCD has not examined any witness to prove that the said construction of brick wall is unauthorized. The MCD has not exhibited any report regarding declaring said construction of brick wall as unauthorized and taking action against the said construction.
57. Plaintiff has not examined any witness from concerned departments for proving the approved site plan of the suit property. Plaintiff has not examined any witness to prove that as per DDA RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 22/29 plan, third floor upon the suit property could not be constructed. Plaintiff has not filed the DDA plan regarding construction of suit property on record. There is no iota of evidence on record to prove that the construction raised upon the suit property is illegal and unauthorized.
58. The law has been well settled by the Hon'ble High Court of Delhi regarding granting injunction order to any person against unauthorized construction raised upon immovable property and the relevant judgments have been mentioned in the succeeding paras.
59. In a case titled Rajender Motiwani & Anr. Vs MCD & Ors., RSA No. 243/17 decided on 16.10.2017, the Hon'ble High Court of Delhi has observed as under:
8. The second reason for rejecting the argument urged on behalf of the appellants/plaintiffs is that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of Section 15 of the Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 23/29 house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of Sections 15 and 33 of the Easements Act that right to easement of the appellants/plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the appellants/plaintiffs or the appellants/plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/own property".
60. In a case titled R.V. Sinha Vs Ashwani Kumar & Ors. Cont. CAS (C) 902/2025 decided on 8.09.2025 the Hon'ble High Court of Delhi has observed as under:
3. This Court further takes note of the order dated 01st July, 2024 passed in W.P.(C) 8833/2024, titled as "Sh.
Ajay Bansal Versus Municipal Corporation of Delhi & Ors.", wherein, it has been held as follows:
8. At this juncture, it is also apposite to refer to the decision of this Court in the case of Rajendra Motwani & Anr. v. MCD &Ors., whereby, it was held as under:-
"8. --- An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of Section 15 of the Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 24/29 interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house."
9. The decision in the case of Rajendra Motwani (supra) has been followed in a subsequent decision dated 23.05.2022 titled as Kamal Kapoor and Anr. v. Commissioner (North MCD) and Ors., wherein, the Court rejected the prayer to direct the respondents therein to take action against the alleged illegal construction/encroachment on the ground that the petition was not filed to secure any fundamental or legal right. Under the facts of the case at hand and in light of the aforesaid decisions, the petitioner's request for directions to the respondent-MCD to decide the representation does not seem to be amenable to writ jurisdiction.
14. Considering the aforesaid, this Court is of the view that no fundamental or legal right of the petitioner is affected. Thus, though the MCD is directed to take requisite action, in accordance with law, against the properties in question, it is held that the petitioner as such has no locus to file the present petition.
61. In a case titled Dinesh Sethi Vs Commissioner of NDMC & Ors., RSA 210/2025, decided on 05.01.2026 the Hon'ble High Court of Delhi has observed as under:
25. The second aspect was that the Appellant claimed that the Easamentry Rights were impacted on account of unauthorised construction. In the case of Rajendra Motwani and Anr. (supra), it was observed that an illegal construction no doubt gives a locus standi to the Local Municipal Authorities for removal of illegal construction but a right of neighbour arises only if the legal rights of light and air or any other legal right is impacted on account of illegal construction. The legal right to light and air in terms of Section 15 of the Easements Act, 1882, requires a cause of action to be laid out and proved that right of light and air, has been enjoyed for 20 years and only after completion of 20 years, a right of acquisition by prescription, is acquired in the Easementary Rights. Even after acquisition of such RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 25/29 Easementary Rights by prescription, the right to injunct a neighbour, is not absolute and is covered by Section 33 of the Easement Act, which requires that disturbance to the Easementary Rights must actually cause substantial damage to a neighbour and the infraction materially diminishes the value of the dominant heritage due to material interference in the physical comfort of the neighbour living in his own house or prevents the neighbour from carrying on his accustomed business in the dominant heritage/his own house. These all facts are material aspects and when are not established, there is no cause of action in terms of Section 15 and 33 of the Easement Act and the Suit does not disclose any cause of action.
26. Similar observations were made in the case of Shiv Kumar Chadha Etc. and Municipal Corporation of Delhi & Ors., decided on 02.09.2021; 2021/DHC/2721, Vishwas Pathak vs. Municipal Corporation of Delhi and Ors., 2024/DHC/4475; Resident Welfare Association vs. Kishan Devnani and Ors., 2024/DHC/6204.
27. In the present Case, the Appellant claims to be a neighbour living in his own house. Aside from making a bald assertion that there is encroachment made, the Appellant has failed to describe how such encroachment has impacted his Easementary Right under Section 15 of the Easement Act. There is no averment that on account of encroachment, his right to light or air, has been impacted in any manner. Moreover, the Easementary Right as defined under Section 33, has also not been made out.
28. The learned District Judge has rightly appreciated these aspects while upholding the Order of the Ld. Civil judge, rejecting the Suit of the Appellant under O.7R.11 CPC.
62. Plaintiff/PW-1 has deposed in his examination in chief that he has apprehension that building may fall as originally only three flats i.e. ground floor, first floor and second floor were constructed by the DDA. He further deposed that defendant no. 1 & 2 without taking care the strength of the bulling are adamant to raise construction at the fourth floor which caused the cracks in the building.
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63. PW-1 further deposed in his examination in chief that the unauthorized construction is very dangerous as the existing building does not have the strength to bear the load of extra floors and it may fall at any point of time causing serious loss of life and properties.
64. Plaintiff has not examined any building expert to prove that the building in question has become dangerous due to constructing of third floor by defendant no. 1 & 2. The plaintiff has also not examined any witness to prove that cracks has arisen in the building due to construction.
65. There is no iota of evidence on record to prove that the building in question has become dangerous or likely to be fell down or cracks has arisen in the building. The plaintiff has not even exhibited any photographs of the building in question for showing the condition of the building.
66. Plainitiff has not claimed infriengment of any of his easement right or legal right regarding obstruction in the access of light and air or other legal right due to constructing of third floor or Mumty upon the fourth floor of the suit property by defendant no. 1 & 2.
67. In view of the above said judgments of Hon'ble High Court of Delhi, suit for permanent injunction against unauthorized construction upon the immovable property filed by the neighbour is not maintainable, if any of the easement right or legal right of RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 27/29 neighbour has not been infrienged. It is the MCD which is the competent authority to take action against the unauthorized construction as per MCD Act.
68. In view of the above said discussion, it is held that plaintiff has failed to prove any unauthorized construction upon the suit property made by respondent no. 1 & 2. The appellant has also also failed to prove that any of his easement right or legal right has been infringed due to construction made upon the suit property. Accordingly point no. 1 & 2 are decided against the appellant.
POINT NO. 3 & 4
69. This court has taken up point no. 3 & 4 for determination.
3. Whether the impugned judgment and decree dated 12.10.2023, passed by ld. Trial Court are against the settled princples of law and are based upon assumptions and presumptions and have been passed without giving any sound and cogent reason?
4. Whether ld. Trial Court has failed to properly appreciate the facts of the suit and evidence led in the suit by the parties, including admissions made by the respondents in cross-examination?
70. Ld. Trial court has properly appreciated the facts of the suit as well as evidence led by the parties in the suit including admissions made by the respondents in cross-examination. The impugned judgment passed by the Ld. Trial Court is well reasoned and as per the settled position of law, according to judgments of RCA DJ NO. 71-23 Amar Nath Vs Reena & Ors. 28/29 Hon'ble High Court of Delhi. Ld. Trial Court has given cogent and sound reasons for deciding the suit of the plaintiff in its judgment dated 12.10.2023. This court does not find any infirmity or error in the judgment of Ld. Trial Court. Accordingly, points no. 3 & 4 are decided against the appellant.
71. In view of the above said discussion and decisions on the points for consideration, the impugned judgment and decree dated 12.10.2023 stands affirmed. Accordingly, appeal of the appelant stands dismissed with cost.
72. Decree Sheet be prepared accordingly. TCR alongwith copy of judgment and decree be sent back to ld. Trial Court.
73. The pending application under 41 rule 5 read with order 39 rule 1 & 2 read with section 151 CPC stands dismissed accordingly.
74. File be consigned to record room after due compliance.
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2026.04.18
18:53:33 +0530
Announced in the open court (SHIV KUMAR)
on 18th April, 2026 District Judge-02,
Court no.127,
West, Distt,
THC: Delhi
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