Delhi District Court
Smt. Santra Devi vs Latish Kumar on 22 July, 2015
In the Court of Dr. Rakesh Kumar: Additional District Judge
(South District) Saket Court Complex, New Delhi.
RCA No. 13/2014
Unique I.D. No. 02406C0178192014
In the matter of :
Smt. Santra Devi
W/o Late Suraj Bhan
R/o House no. 55, Village Begumpur
Malviya Nagar,
New Delhi110017 .......Appellant
Versus
Latish Kumar
S/o Late Ram Saran Dass
R/o House no. 55, Village Begumpur,
Malviya Nagar,
New Delhi110017 .......Respondent
Date of institution : 21.07.2014
Reserved for Judgment : 16.07.2015
Date of decision : 22.07.2015
Appeal against Judgment and Decree dated 20.05.2014 passed by
Ms. Shelly Arora, Additional Senior Civil Judge, South District,
New Delhi
J U D G M E N T
1. This appeal under section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC') is directed against the judgment and decree dated 20.05.2014 passed by the Court of Ms. Shelly Arora, Additional Senior Civil Judge, South District, Saket Court RCA No.13/14 Page no. 1 of 12 Complex, New Delhi in Suit no. 476 of 2011 whereby the suit for perpetual injunction instituted by the plaintiff (Latish Kumar) against the defendant (Santra Devi) was decreed.
2. Brief facts for the decision in the appeal are that the respondent (plaintiff in the Trial Court) has instituted the above suit against the appellant (defendant in the Trial Court). It is averred in the plaint that the plaintiff and the defendant are the coowners of House no. 55, Village Begumpur, Malviya Nagar, New Delhi (hereinafter referred to as 'the suit property'); that the suit property fallen to the share of the husband of the appellant and the respondent; that there is a common passage in the suit property for ingress and egress of the parties but, the defendant is intended to build a staircase upon the common open passage of six feet. In order to pressurize the plaintiff, the defendant made false complaints to the police.
3. In the written statement filed on behalf of the defendant no. 1, it is contended that the suit is not maintainable under law; that the plaintiff has no locus standi to file this suit; that the suit property was partitioned mutually in equal shares and the passage shown in the site plan is not common to the parties and that the plaintiff is not in possession of the passage; that the defendant does not want to built a staircase upon the common passage; that the plaintiff broke open a portion of walls on RCA No.13/14 Page no. 2 of 12 ground floor and first floor and fixed doors there in order to grab the property of the defendants no. 1 and 2; that the house of the defendant was built two years prior to the construction of house of the plaintiff and there is no common passage; that the defendant wants to build a staircase in her own portion and the plaintiff is interfering in the construction; that the defendant no. 1 has never made any false or frivolous complaints against the plaintiff.
4. From the pleadings of the parties, following issues were framed on 14.09.2011 namely: 1 Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 2 Whether the plaintiff has come to the court with clean hand and has suppressed the true facts from the Court, if so, what facts? OPD 3 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for in the suit? OPP 4 Relief.
5. After the matter being put on trial, the plaintiff got examined himself as PW1, Mr. Rajpal Singh as PW2, Mr. Satpal Singh as PW3 and Mr. Rajesh Kumar as PW4 .
6. The defendant no. 1 examined herself as DW1, Mr. Bijender Singh Dagar as DW2 and Head Constable Prabhat Kumar from PS Malviya Nagar as DW3.
RCA No.13/14 Page no. 3 of 12
7. After recording of evidence and hearing counsel for the parties, the trial Court had pronounced judgment dated 20.05.2014, whereby the suit was decreed in favour of the plaintiff and against the defendants thereby restraining the defendants no. 1 and 2 from blocking the common passage shown in yellow color in the site plan Ex. PW1/1 and also from raising any construction on the said common passage of Property bearing no. 55, Village Begumpur, Malviya Nagar, New Delhi.
8. I have heard Mr. Pankaj Kumar Sharma, Advocate for the appellant, Mr. Naval Kishore, Advocate for the respondent and have gone through the trial court record carefully.
9. It is submitted by learned counsel for the appellant that the impugned judgment of the Learned Trial Court is erroneous, illegal and against law and fact of the case. It is further submitted that the suit of the plaintiff/ respondent was allowed without the consideration of the material on record and facts. It is further submitted that the Learned Trial Court has failed to appreciate the facts of the report of Local Commissioner and wrongly passed the order against the defendant/ appellant. Having drawn my attention on the impugned judgment and decree dated 20.05.2014 passed by learned Trial Court and testimonies of the parties, it is submitted by learned counsel for the appellant that the respondent do not have any right, title or interest to the RCA No.13/14 Page no. 4 of 12 passage shown in yellow colour in the site plan Ex. PW1/1.
10. Per contra, it is submitted by learned counsel for the respondent that the appellant do not have any exclusive right, title or interest in respect of the passage shown in yellow colour in the site plan as the same is a common passage.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. In the memorandum of appeal, the appellant has not assailed the findings of the learned Trial Court on issues no. 1 to 4, therefore, in the light of the contentions raised by the parties before this court the only point for determination is, namely: Whether the judgment and decree passed by the learned Trial Court are liable to be reversed?
13. For determination of this issue some admitted facts are required to be noticed. From the pleadings of the parties, it has been established that the appellant and respondent are sisterin law (Bhabhi) and brotherinlaw (Devar) respectively. It is also admitted that the property no. 55, Village Begumpur, Malviya Nagar was a joint property which was equally divided between the appellant and the respondent. It is also admitted that before the partition of the above property, there was a common passage RCA No.13/14 Page no. 5 of 12 for the parties in the property. It is admitted that after the partition, the portion of the appellant was built first and later on the respondent constructed his portion of the property.
14. Facts alleged by the plaintiff in the plaint are that in the suit property there is a common passage which is being used by the plaintiff and the defendant.
15. Contentions raised by the defendants in the written statement that the defendants no. 1 and 2 have exclusive rights over the passage and cannot be interfered by the plaintiff if they want to raise staircase in their area of the property.
16. The plaintiff's suit for permanent injunction was decreed vide judgment and decree dated 20.05.2014. Relevant portion of the judgment reads as under:
12. Issues no. 3.: ........ A portion of the said common passage has been referred to A B C D in the site plan Ex. PW-1/1 in the cross examination of PW-1 wherein he has submitted that this portion is not open to sky and is thus covered. PW-3 Sh. Satpal Singh in his cross- examination has submitted that the plaintiff and defendant no. 1 have equal shares excluding the common passage and that the common passage has been correctly shown in the site plan Ex. PW-1/1.
DW-1 in her cross examination submitted that the entrance of the house was through a Gali in the East of the house when she joined the company of her husband after her marriage and that this was the only way to enter into the house. She also claimed that she as well as the plaintiff have equal share int he said house but claimed that the space shown in yellow in Ex. PW-1/1 falls within her portion and is not vacant. DW-2 Sh. Vijender Singh Dagar also admitted that there was only one way to enter the House no. 55 prior to the partition RCA No.13/14 Page no. 6 of 12 somewhere in the year 2000 when the house was partitioned in equal shares. He also admitted that the way to the house of the plaintiff remained intact even after the demolition and construction of the share of late Sh. Suraj Bhan. He also submitted that the plaintiff ended up opening a door on the other side of Gali subsequently at the time of construction of his portion. DW-3 Sh. Dharampal in his cross examination submitted that father of the plaintiff at the time of settlement decided that the exit gates of plaintiff and defendant no. 1 be installed by them on their own particular sides in their respective portions after the construction of new house. It was thus been admitted and also stands as a version of the defendant that the H. No. 55 was one unit with only single gate on the eastern side for the ingress and egress of the property. The contention of the defendant no. 1 is primarily that the portion shown in yellow color in Ex. PW-1/1 has fallen to her share and thus, cannot be taken to the common passage.
As such, the settlement or the mutual family partition in this case is not denied. The term of settlement/ partition to the effect that both plaintiff and husband of defendant no. 1 got equal shares in the property is also not in dispute. But there is no written document specifying the precise dimensions of the property falling in share of plaintiff or husband of defendant no. 1 and also about the term of the exit gate to be used by plaintiff or husband of defendant no. 1 after partition as the portion of the property which earlier contained the gate for ingress and egress from the property fell into the share and portion of husband of defendant no. 1 so the arrangement, if any, decided at the time of partition to this effect stands in contention as there is no document specifying those terms.
It is not in doubt that there was only one gate on the Eastern side of the property prior to construction of the portion of the plaintiff. It has also come up in testimony that there was no dispute qua the passage till the construction of portion of property by the plaintiff. It is also not in dispute that the plaintiff constructed his property subsequent to the construction of property by husband of defendant no. 1. DW-1 denied the suggestion put forth to her by counsel for the plaintiff in her cross examination that the plaintiff continued using the passage in dispute till the construction of portion of the property by him. PW-3 Sh. Satpal Singh in his cross examination submitted that the property was equally divided between plaintiff and husband of defendant no. 1 excluding the common passage. PW-3 Sh. Satpal Singh also submitted that the defendant no. 1 constructed his share of the property completely leaving the common passage. Defendant no. 1 has not been able to prove or controvert the version put across by plaintiff as in as per the terms of settlement, plaintiff was to use the exit gate towards RCA No.13/14 Page no. 7 of 12 South of the property. This is more so as any such gate was never in existence prior to construction of portion of the property by the plaintiff. The plaintiff chalked out an additional exit gate towards the gali on the southern side of the property. This privilege was available to him on account of the portion of the property which fell in his share. A mutual arrangement to respect the privacy of each other, however, could have been reached at, to exclusively use the portion/ gates in the property falling in respective shares of plaintiff and husband of defendant no. 1.
The above discussion makes it amply clear that the plaintiff since the property was single unit has been using that passage shown in yellow color in the site plan Ex. PW-1/1 for ingress or egress of the property till he chalked out another gate on the south side of the property. Plaintiff has been able to underline effectively his continuous usage, both practically and logically till construction of his gate on the south side of the property. The south side gate undoubtedly gives him an advantage over the defendant no. 1 but he has been able to reasonably prove that the common passage as shown in yellow color in the site plan Ex. PW-1/1 was available for usage by both plaintiff and husband of defendant no. 1. Any version to controvert this finding has not been proved by defendant no. 1. The right of usage of this portion shown in yellow color in site plan Ex. PW-1/1 cannot be taken away from the plaintiff. The preponderance of probabilities accordingly lie in favour of plaintiff. Plaintiff, as has been able to establish his right over the portion of property shown in yellow color in the site plan Ex. PW-1/1, thus, has a right co-extensive with defendant no. 1 to use the said passage. Accordingly, plaintiff has thus proved himself to be entitled to an injunction in his favour to prevent the breach of an obligation in his favour.
17. The only relief sought by the plaintiff in this suit is a decree of perpetual injunction for restraining the defendants and their agents from blocking the common passage and from making any construction on the said common passage. It is noteworthy here that the defendant Smt. Santra Devi has admitted in her cross examination that there was only one way to enter the house from gali at the time of her marriage. It is also admitted by the RCA No.13/14 Page no. 8 of 12 defendant no. 1 that the suit property had been partitioned during the life time of her fatherinlaw and herself and the plaintiff had equal shares in the suit property. It is also admitted case of the defendant no. 1 that her house was constructed in the year 2007 and the plaintiff's house was constructed in the year 2009.
18. It is in the evidence of the plaintiff that the portion shown in yellow color in the site plan was / is a common portion commonly used by both the parties. As per the plaintiff, the defendant wanted to build staircase upon the common passage which gave a cause of action to the plaintiff to institute this suit. PW2 Rajpal Singh and PW3 Satpal Singh who are elder brothers of the plaintiff and brothersinlaw of the defendant no. 1 have also commonly stated in their affidavits of evidence that there is a gali which was the only common passage of House no. 55, Begumpur, Delhi and now it is a common gali for the plaintiff and the defendants and there is a common courtyard also in front of both the portions. During the crossexamination of PW2 and PW3, nothing has come out against the claim of the plaintiff with respect to the common passage. Testimonies of PW4 Rajesh Kumar also support the claim of the plaintiff.
19. On the other hand, there is no evidence on behalf of the defendants to prove that the portion shown in color yellow in the RCA No.13/14 Page no. 9 of 12 site plan of the plaintiff has fallen exclusively to the share of the defendants. DW2 Bijender Singh Dagar who is cousin of the defendant no. 1 has also admitted in his crossexamination that there was only one way to the old house. DW2 has also admitted in his crossexamination that after the demolition and construction of the share of Late Suraj Bhan the way to the house of the plaintiff remained intact. It is also in the evidence of the DW2 that the gate of the plaintiff which opens towards the kitchen of the defendant was in existence prior to the filing of present suit and now also. Crossexamination of the DW2 on the material point of common use of common portion is quite vaguely recorded but it also indicates that the plaintiff and the defendants both were having exit on East side.
20. The main contention raised by the defendant no. 1 is that in the month of October 2009 the plaintiff broke open a partition wall marked 'A B' in the site plan filed by the defendant no. 1 and also at first floor Marked 'C D' of the wall and fixed doors therein to grab the property of the defendants. But, there is no cogent evidence on behalf of the defendant no. 1 to prove this contention. From a perusal of both site plans Ex. PW1/1 (filed by the plaintiff ) and Ex. DW1/A (filed on behalf of the defendant) also, it is highly probably that the portion between the kitchen of the defendant no. 1 and wall was left unconstructed/ vacant so that it can be used by the plaintiff.
RCA No.13/14 Page no. 10 of 12
21. In the light of the pleadings and evidence of the parties and the discussion abovestated, I am of the view that the portion shown in yellow color in the site plan Ex. PW1/1 was/is a common portion and it is commonly used by the plaintiff as well as the defendants.
22. In para no. 3 of the written statement, it is admitted case of the defendant no. 1 that she wanted to raise/ construct a staircase but the plaintiff was interfering in the construction.
23. In view of the above contentions raised by the defendant no. 1 in the written statement, it is proved that the defendant no. 1 wanted to raise construction of staircase in the common portion for her exclusive use to the detriment of and exclusion of its use by the plaintiff.
24. Contention raised on behalf of the defendant to the effect that Learned Trial Court has failed to appreciate the facts of the report of Local Commissioner and wrongly passed the order against the defendant/ appellant is not sustainable. Neither party has examined the Local Commissioner as a witness and the report of Local Commissioner was also not proved by either party as per law. So, the report of Local commissioner cannot be taken into consideration.
RCA No.13/14 Page no. 11 of 12
25. In view of my above discussion, I am of the considered view that the impugned judgment and decree suffers from no infirmity and hence is not liable to be interfered with. The appeal is dismissed with costs.
26. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with copy of the judgment.
Pronounced in the Open Court
on 22.07.2015 (Dr. Rakesh Kumar)
Additional District Judge
South District, Saket Court Complex
New Delhi
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