Delhi District Court
Sh. Karan Singh vs Sh. Bhim Singh S/O Sh. Sher Singh on 18 August, 2011
Karan Singh v. Bhim Singh & Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 370/08 (Old No.385/91)
Unique Case ID No. 02401C0214782002
In the matter of:
Sh. Karan Singh
S/o Sh. Shiv Charan
R/o Village & PO Mandi
Mehrauli
New Delhi ......Plaintiff
Versus
1. Sh. Bhim Singh S/o Sh. Sher Singh
2. Sh. Sukhpal S/o Sh. Net Ram
3. Sh. Mahipal S/o Sh. Bahadur
4. Sh. Bishamber S/o Sh. Kishan Lal
5. Sh. Vijender S/o Sh. Neki
6. Sh. Surjit S/o Sh. Ram Swarup
7. Sh. Shripal S/o Sh. Kundan
8. Sh. Pappu S/o Sh. Rattan
9. Sh. Kishan Lal S/o Sh. Chanda
10. Sh. Brahm Prakash S/o Sh. Kishan Lal
11. Sh. Rohitash S/o Sh. Kishan Lal
12. Sh. Rajbir S/o Sh. Kishan Lal
13. Sh. Shish Ram S/o Sh. Ram Swarup
14. Sh. Paimy S/o Sh. Net Ram
15. Sh. Rattan S/o Sh. Tulla
All R/o Village & PO Mandi
Mehrauli,
New Delhi .....Defendants
Date of filing of the suit : 31.08.1991
Date of reserving order : 30.07.2011
Date of pronouncement : 18.08.2011
JUDGMENT
Suit No. 370/08 Page 1 /16
Karan Singh v. Bhim Singh & Ors.
1. In this suit for permanent and mandatory injunction, the plaintiff is seeking following relief:
(a) To restrain the defendants from opening a door through the wall of the house of the defendant no.1 towards the open space of the plaintiff, and
(b) To restrain the defendants from constructing a shop towards the open space of the plaintiff, and
(c) To restrain the defendants from grabbing the open space of the plaintiff, and
(d) To direct the defendants not to interfere in the repair of the stair-case adjoining the main entrance door of the plaintiff's house in V & PO Mandi, Mehrauli, New Delhi, and bringing it back to its original condition.
2. The plaintiff and the defendants are residents of Village & PO Mandi, Mehrauli, New Delhi. The plaintiff has a stair-case adjoining the main entrance door of his house leading to the first floor of his house. The said stair-case is an old construction and first 4-5 steps were constructed with concrete and thereafter, it had an iron stair-case leading to first floor of his house. The stair-case is shown in red colour in the site plan. There is an open space in front of the main entrance door of the plaintiff's house as shown in green colour in the site plan. The said open space belongs to the plaintiff. He is in occupation of the said open space since long. The said stair-case was constructed in the said open space. The house of the defendant no.1 is adjoining the plaintiff's house and his main entrance is towards the Gali. The house of the defendant no.2 is in front of the house of Suit No. 370/08 Page 2 /16 Karan Singh v. Bhim Singh & Ors.
the defendant no.1.
3. According to the plaintiff, the defendant no.1 has no concern with the said open space and the said stair-case. The said stair-case is the only way available to the plaintiff to reach the first floor of his house. It was constructed 4 - 5 years before the date of filing of the suit. It is not causing hindrance to anyone as it was constructed on the open space which belongs to the plaintiff exclusively. The defendants are members of one family and conspired to grab the said open space and to remove the said stair-case. The defendant no.1 to 3 intended to dispossess the plaintiff from the said open space and to remove the stair-case forcibly so that the defendant no.1 could construct a shop by opening a door towards the said open space. The case of the plaintiff is that on 26.07.1991 at 8 AM, the defendants had trespassed into the plaintiff's house and started breaking his stair-case. The defendant no.2 to 9 had inflicted injuries on his person. The plaintiff was taken to AIIMS by the local police and medically examined. The defendants dismantled the iron stair case from the concrete stair-case and in this process, they damaged the roof of the plaintiff's house. The police had not taken any action. On 28.07.1991, the defendants attacked the plaintiff when he was repairing the said stair case. The defendants were arrested by the police and thereafter, they were released except the defendant no.2 and 3 who were booked under Sec. 107/151 Cr.P.C. The police falsely framed the plaintiff and his brother in the said case. The defendants threatened to take possession of the said open space and to remove the said stair case. On 03.08.1991 and 30.08.1991, the defendants attacked the plaintiff to remove the said 4/5 concrete steps and grab the said open space, and to open a Suit No. 370/08 Page 3 /16 Karan Singh v. Bhim Singh & Ors.
shop by opening a door towards the said open space and Hence, this suit.
4. In his written statement, the defendant no.3 stated that the suit is liable to be stayed under Section 10 of the CPC as the suit no. 1448/91 relating to the said piece of land is pending before the Court of Sub-judge, Delhi and a status quo order was passed after notice to the plaintiff. The suit is bad for non-joinder of the MCD. The jurisdiction of this court is barred. It is stated that the said open space is a public rasta adjacent to the houses of the parties over which the plaintiff is intending to construct a stair-case. The plaintiff is intending to encroach upon the public land. The plaintiff can't carry out any construction without sanctioned plan. The plaintiff can't raise construction on the public land/rasta. The plaintiff can raise construction within the precincts of his house. No such stair-case exists. The defendants foiled the attempt of the plaintiff to construct a stair-case illegally in front of his house adjacent to the main entrance by encroaching upon rasta/street. A case under Section 107/151 Cr. P.C. is pending between them. The said open space is a chowk - public rasta. It does not belong to the plaintiff exclusively. It is public land and maintained, scavenged and cleaned by the MCD. The defendant no.1 does not want to construct a shop, as alleged, on public rasta.
5. In the replication, the plaintiff denied the contention of the defendant no.3 and reaffirmed his case. It is stated that the MCD has no concern with the said open space. It is stated that the property in dispute is situated in village abadi area. The said open space is not a public land.
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The said open space and the said stair-case belong to the plaintiff since long, and he is legally entitled to use the said open space. The plaintiff filed a criminal complaint under Section 323/324/ 307/452/506/34 IPC against the defendant 2 to 9.
6. On the basis of the pleadings of the parties, following issues were framed on 30.07.2004:
1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed? OPP
2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed? OPP
3. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD
4. Whether the suit of the plaintiff is not maintainable in the present form? OPD
5. Relief.
7. In the evidence, the plaintiff and his brother Sh. Sant Kumar appeared as PW-1 and PW-2 and the defendant no.3 and the defendant no.2 appeared as DW-1 and DW-2.
8. Ex.PW-1/1 is site plan of the disputed site. Mark A is copy of the MLC no. 55357 dated 26.07.1991, Mark B is the copy of the Water Bill dated 09.10.1991, Mark C is the copy of the Ration Card of the plaintiff, Mark D and Mark E are the copies of the Electricity Bill dt. 22.08.1989 and 15.01.1993, Mark F is the carbon copy of the complaint dated 29.08.1991 made by the plaintiff to the Hon'ble Prime Minister of India, Mark G to J are the photographs of the damaged stair case, Mark K is the copy of statement of the defendant no.2 (DW-2) and Mark L is the copy of statement of the defendant no.3 (DW-1) recorded before the SDM, Mark M is the copy of the Suit No. 370/08 Page 5 /16 Karan Singh v. Bhim Singh & Ors.
complaint dated 14.08.1991 under Sec. 323/324/307/452/ 506 IPC filed by the plaintiff against the defendants, Mark N is the copy the complaint dated 05.08.1991 made to SHO, PS Mehrauli, Mark O is the copy of the complaint dated 29.08.1991 (already Marked as Mark F). Mark P and Q are copies of OPD cards (Marked as Mark A).
9. Ex.PW-2/1 is the Electricity Bill dated 30.07.1993, Ex.PW-2/1 is the Water Bill 19.09.1993, Ex.PW-2/3 is the Lal Dora Certificate dated 21.12.1995, Ex.PW-2/4 is the Aks-sizra of the Village Mandi for the year 1984 - 85 and Ex.PW-2/5 is the Khatoni of the Village Mandi for the year 1997 - 98.
10. Ex.DW-1/P-1 is the statement of the defendant no. 3 (already marked as Mark L) and Ex.DW-1/P-2 is the site plan of the village Mandi. Ex.DW-2/P-2 is the statement of the defendant no.2 (already marked as Mark K) and Ex.DW-2/P-3 is the certified copy of judgment and decree dated 05.02.2002 passed in the suit no.90/92 titled as "Karan Singh & Ors. v. Lekh Raj & Ors." Mark A and B are the copy of the statement of the plaintiff and the defendant no.3 recorded on 02.08.2002 before the Court of Ld. M.M. New Delhi in the complaint cases filed by them against each other.
11. I have heard arguments of Sh. R. K. Sharma, Adv. for the plaintiff and Sh. Rana Rajdeep, Adv. for the defendants and perused the written arguments filed by the plaintiff and the defendants.
12. On careful assessment of evidence on record in the light of oral and written arguments addressed/filed by Ld. Counsel for the parties, issue wise finding is as under:
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ISSUE NO.1 AND 2:
13. Issue no.1 and 2 are inter-linked and therefore, they are taken up together for determination. In fact, the plaintiff is seeking relief of permanent injunction restraining the defendants from interfering in repair of stair case though it is worded in mandatory form.
14. Ld. Counsel for the plaintiff argued that the stair case reaching to the first floor of the plaintiff's house is the bone of contention between the parties. He argued that the said stair-case has been in use and enjoyment of the plaintiff since time immemorial. He argued that the stair-case was constructed 4 - 5 years before filing of the suit in the open space in front of the plaintiff's house. He argued that defendants are related to each other and the house of the defendant no.1 is adjacent to the plaintiff's house and the said stair case. He argued that the main entrance of the defendant no.1's house is towards the Gali. He argued that the defendants are inimical towards the plaintiff and there are criminal cases pending between them. He argued that the site plan Ex.PW-1/1 filed by the plaintiff has not been disputed by the defendants. He argued that the PW-1 and the PW-2 have proved documents which show that the said open space belonged to the plaintiff. He argued that the judgment in suit no.90/92 Ex.DW-2/P-3 prove that the said stair-case is enjoyed by the plaintiff since long. He argued that DW-1 and DW-2 admitted that a Kalandara under Sec. 107/151 Cr.P.C was registered in the year 1991. He argued that Ex.DW-1/P1 and Ex.DW-2/P2 prove that the stair case was already in existence and the defendants had attempted to remove the said stair-case. He argued that the defendants Suit No. 370/08 Page 7 /16 Karan Singh v. Bhim Singh & Ors.
have not led any evidence to prove that the disputed site is public rasta over which the plaintiff has constructed the stair case. He argued that the defendant no.1 has no right to open his door to construct a shop towards the open space belonging to the plaintiff. He argued that the plaintiff has a legal right to use the stair-case which is in existence since time immemorial.
15. Ld. Counsel for the defendants argued that the disputed land is public rasta. He argued that the defendants had intervened to prevent the plaintiff from encroaching upon the public land in order to construct a stair case. He argued that dispute between the parties led to registration of Kalandara under Sec. 107/151 Cr.P.C. He argued that the plaintiff and the defendant no.3 had filed cross-cases against each other which were compromised on 02.08.2002. He argued that the plaintiff made statement that he will not install the stair case in front of his house and the defendants had agreed that they will not open new door towards the plaintiff's house. He argued that it is proved from the statement of the plaintiff that the disputed site is a chowk/public rasta maintained by the MCD. He argued that no stair-case is in existence and thus, the suit has become infructous, and the plaintiff is not entitled to any relief.
16. It is the specific case of the plaintiff that the open space in front of his house as shown in green colour in the site plan Ex.PW-1/1 is his property and the defendants have no concern with the said open space. It is further case of the plaintiff that the stair-case as shown in red colour in the site plan was constructed in the said open place. The case of the defendants is that the said open space is a public rasta over Suit No. 370/08 Page 8 /16 Karan Singh v. Bhim Singh & Ors.
which the plaintiff was intending to construct a stair-case. It is further case of the defendants that the said open does not belong to anyone. Onus to prove the issue no.1 and 2 was upon the plaintiff. The plaintiff has led no evidence that the said open space is his property. PW-2 Sh. Sant Kumar is brother of the plaintiff. He has not stated that the said open space is their property. In his cross-examination, he stated that he has no other ownership document except Ex.PW-2/3.
17. Ex.PW-2/3 is the Lal Dora Certificate issued by SDM (South) in respect of the plaintiff's house measuring 250 sq. yds. in Village Mandi, New Delhi - 110047 in order to enable the plaintiff to apply for electricity connection. It clearly states that the certificate does not confer the right of ownership on the certificate holder. Further, it is not the case of the plaintiff that the 250 sq. yds. area of his house includes the open space. In the site plan Ex.PW-1/1, the plaintiff has not given dimensions and/or area of his house.
18. Besides Lal Dora Certificate Ex.PW-2/3, there is no other documentary evidence to prove that that the said open space in front of the plaintiff's house as shown in green colour in the site plan Ex.PW-1/1 exclusively belongs to the plaintiff. Mark B is the copy of the Water Bill dated 09.10.1991, Mark C is the copy of the Ration Card of the plaintiff, Mark D and Mark E are the copies of the Electricity Bill dt. 22.08.1989 and 15.01.1993, Ex.PW-2/1 is the Electricity Bill dated 30.07.1993 and Ex.PW-2/2 is the Water Bill 19.09.1993. Ration Card, Electricity and water bills cannot be proof of ownership of the said open space.
19. Ex.PW-2/4 is the Aks-sizra of the Village Mandi for the year 1984 - 85 and Ex.PW-2/5 is the Khatoni of the Suit No. 370/08 Page 9 /16 Karan Singh v. Bhim Singh & Ors.
Village Mandi for the year 1997 - 98. In the said documents, the said open space has not been shown in exclusive use and occupation of the plaintiff to the exclusion of the defendants.
20. Rather, photographs filed by the plaintiff Mark G to J show that there is a street/gali adjoining the plaintiff's house which joins the said open space and lead to another gali where there is an electricity pole is installed, and doors of the defendants' houses open in the said open space.
21. The plaintiff has confronted the DW-1 with a site plan regarding location of houses in village Mandi, New Delhi Ex.DW1/P2. This site plan shows that there is a gali on the eastern side of the plaintiff's house passing between the house of the plaintiff and the DW-1. This gali joins the said open space in front of the house of the plaintiff, the defendant no.1, 2 and 5 and thereafter, it further passes through between the house of the defendant no.1, 2 and 5. It further shows that the doors of the defendants' houses open towards the said open space.
22. It is therefore, proved that the said open space is a passage/rasta meant for the common use of residents of the village Mandi. The plaintiff has no exclusive right to use the said open space to the exclusion of the villagers including the defendants. The plaintiff cannot appropriate the said open space to his exclusive use to the exclusion of the defendants. The plaintiff has no right to install his stair- case over the said passage to reach the first floor of his house. The plaintiff cannot be allowed to encroach the common passage/rasta for constructing stair case leading to first floor of his house.
Suit No. 370/08 Page 10 /16Karan Singh v. Bhim Singh & Ors.
23. This is not the end of the matter. The plaintiff has stated in the para no. 16 of his affidavit filed in examination - in - chief that on 02.08.2002, there was a compromise between the plaintiff and the defendant no.3 in the criminal complaint under Section 323/324/452/506/34 IPC before the Court of Ld. M.M., New Delhi and their statements were recorded, and the accused persons were acquitted vide order dated 02.08.2002. PW-1 exhibited the said statements and order as Ex.PW-1/13. The DW-1 and DW-2 have deposed that the criminal cases were compromised vide Mark A and B.
24. The complaint cases filed by the plaintiff and the defendant no.3 against each other were compromised on 02.08.2002. The defendant no. 2 to 9 were accused in the criminal complaint field by the plaintiff. The plaintiff and the defendant no.3 made the statement that "The present dispute relates to the year 1991 wherein both the parties had picked up quarrel in respect of iron stair-case. It has been agreed by the parties voluntarily that neither the plaintiff nor any of his family members shall install the stair- case in question in front of his house in any manner. The plaintiff shall however, be permitted to repair the 1st Floor of his house. The defendant no.3 and his family members have agreed not to open new gate /door on the western wall of the house of the defendant no.1 which is overlooking the house of the plaintiff. The plaintiff has agreed that he shall remove the rubble and iron ladder of the stair-case from the gali in front of his house. The plaintiff and the defendant no.3 shall execute the compromise within one week from today."
25. It is therefore, evident that the plaintiff had agreed to remove the stair-case in question within one week Suit No. 370/08 Page 11 /16 Karan Singh v. Bhim Singh & Ors.
w.e.f. 02.08.2002. The plaintiff had infact removed the stair- case in question. In his cross-examination, the plaintiff stated that no stair case exists as on date. He stated that he has repaired the roof of one of his rooms on the orders of the Court. Thus, it is proved on record that there is no stair case in existence as on date. It is relevant to note that on 18.09.2004, the plaintiff filed his evidence by way of affidavit stating therein that he has a stair-case leading to the first floor of his house adjoining the main entrance door of his house. The plaintiff made the false statement as on that date there was no stair-case in existence.
26. Though, the PW-1 in his cross-examination stated that few steps with one chabutra are existing on the spot. He stated that the steps/stair-case was not removed by him. The PW-2 stated that only one step with chabutra still exists. There is no reason for the plaintiff for not removing the rubble of the stair-case despite making statement before the Court on 02.08.2002. Moreover, the plaintiff cannot be permitted to construct stair-case on common passage/rasta.
27. In the suit, the plaintiff sought relief of injunction restraining the defendants from opening door through the wall of the defendant no.1 towards the open space, constructing a shop towards the open space and grabbing the open space in front of the plaintiff's house. PW-1 in his cross-examination stated he had lodged a criminal complaint against 8 defendants. He stated that that a compromise was arrived between the parties in the said complaint case. The defendant no.2 to 9 made statement on 02.08.2002 before the Court of Ld. M. M. in the criminal case filed by the plaintiff that they shall not open new gate/door on the Suit No. 370/08 Page 12 /16 Karan Singh v. Bhim Singh & Ors.
western wall of the house of the defendant no.1 towards the plaintiff's house. Therefore, the suit of the plaintiff had become infructous as the said statement was recorded in judicial proceedings before the competent court.
28. Moreover, the statement of the plaintiff recorded on 02.08.2002, testimony of the PW-1 and PW-2, Ex.DW1/P1 and Ex.DW2/P2, criminal complaint Mark M and complaint dated 05.08.1991 Mark N show that there was dispute between the parties in respect of the stair-case. At no point of time, there was any dispute regarding opening of door by the defendant no.1 towards the said open space.
29. There is no evidence on record that the defendants had ever attempted or threatened to open a door through the wall of the defendant no.1 towards the open space in order to construct a shop and to grab the open space. Therefore, the plaintiff is not entitled to relief of injunction in that respect.
30. Relief of injunction is an equitable and discretionary relief. In order to be entitled to relief of injunction, the plaintiff must approach the Court with clean hands. The conduct of the plaintiff must be un-blemished. In this case, the plaintiff was intending to construct a stair-case in the common passage/rasta in front of his house. The said open space is a rasta. The plaintiff cannot be permitted to encroach upon the public land/rasta in front of his house for the purpose of constructing a stair-case to reach to first floor of his house. The plaintiff has not approached the court with clean hand. The plaintiff mis-represented the facts by alleging that the said open space is his property. Further, the Suit No. 370/08 Page 13 /16 Karan Singh v. Bhim Singh & Ors.
plaintiff had undertaken that he shall not install the stair- case in question in front of his house and further, he shall remove the rubble and the iron stair-case from the gali in front of his house vide statement recorded on 02.08.2002 Ex.PW-1/13 recorded before the Court of Ld. M.M. The plaintiff continued his suit despite making the said statement and filed his affidavit in evidence on 18.09.2004 stating that the stair-case in the said open space is in existence. The plaintiff has not removed the rubble despite making statement on 02.08.2002 Ex.PW-1/13. The plaintiff is an encroacher of common land/rasta. The plaintiff has not approached the Court with clean hands. The plaintiff is not entitled to discretionary relief of injunction in view of his conduct.
31. In so far reliance of Ld. Counsel for the plaintiff on the statement of the defendant no.3 Ex.DW-1/P1 and the defendant no.2 DW-2/P2 that concrete steps and iron stair case were in existence on 26.07.1991 and the defendants had injured the plaintiff is concerned, it can be stated that plaintiff had constructed the said stair-case on the common passage/rasta. The plaintiff had undertaken to remove the said stair case vide statement Ex.PW-1/13. During his cross- examination, the plaintiff admitted that stair-case is not in existence as on date. Mere fact that the plaintiff had constructed two steps of concrete by encroaching upon the common passage is not sufficient to permit him to construct stair-case in front of his house on common passage/rasta. An illegality can't be allowed to be perpetuated on the ground that it had existed at a certain point of time. The subject matter of the suit i.e. stair-case does not exist and therefore, the plaintiff is not entitled to any relief in that regard.
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32. Accordingly, the plaintiff is not entitled to relief of permanent and mandatory injunction. Issue no.1 and 2 are decided in favour of the defendants and against the plaintiff.
ISSUE NO.3:
33. Onus to prove the issue no.3 was upon the defendants. The defendants in their written statement stated that the said open space in front of the plaintiff's house is public land as it is maintained, scavenged and cleaned by the MCD and therefore, the MCD is a necessary party to the suit. The defendants have not led any evidence that the said open space is municipal land and maintained, scavenged and cleaned by the MCD. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.4:
34. Onus to prove the issue no.4 was upon the defendants. The defendants in their written statement contended that the suit is not maintainable in the present form. The defendants rightly not pressed this issue. They have neither stated nor pointed out any defect in the form of the suit. Accordingly, the issue no.4 is decided in favour of the plaintiff and against the defendants.
RELIEF:
35. In view of the finding on the issue no.1 and 2, the suit for permanent and mandatory injunction filed by the plaintiff against the defendants is hereby dismissed with Suit No. 370/08 Page 15 /16 Karan Singh v. Bhim Singh & Ors.
costs.
36. Decree sheet be prepared.
Announced in the open court SANJAY SHARMA)
Today on 18.08.2011 SCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit No. 370/08 Page 16 /16