Delhi District Court
Umesh Chand Sharma & Ors. vs . Yashpal & Ors. on 22 January, 2013
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IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
RCA No. 17/11
In the matter of :
Umesh Chand Sharma & Ors. Vs. Yashpal & Ors.
22.01.2013
ORDER :
Vide this order, I shall dispose off the present appeal filed against the judgment dated 24.05.2011 passed in civil suit No. 633/06 titled Smt. Kela Devi & Ors. Vs. Yashpal & Anr.
Brief facts of the case are: 2 The appellants are sole and absolute owners of land measuring 1 bighas 1 biswas comprised in khasra No. 511 situated in village Shahpur Jat, New Delhi as the same was owned and possessed by predecessorininterest of the appellants as well as the appellants.
3 For the purposes of enjoying the separate parcel of land comprised in the aforesaid khasra, all the cosharers had by mutual agreement and settlement constructed the residential houses over the portion of khasra no. 511 but the land measuring 75X3' was mutually agreed to be kept and utilized for common passage among the cosharers. The land of khasra no. 511 is shown by RCA No.17/11 Contd....P..1 of 18 : 2 : the words ABCDEF in the plan on the trial court file. The common passage / gali has been shown in Red colour in the site plan. It is the private gali / passage of the cosharers and none other than successorsininterest of late Sh. Ganga Das, is entitled to use or using the said private gali / passage. Appellants have submitted that none of the cosharers has exclusive right to enjoy the said passage / gali.
4 On 17.08.1984 one of the cosharers namely Jagat Singh alleging himself to be the owner and in exclusive possession of 60 sq. yards marked as 'DGHI' in the site plan, filed a civil suit bearing No. 125/1984 for permanent injunction against other cosharers restraining them from forcibly dispossessing him from the property. The aforesaid suit was dismissed holding that the area marked as 'DGHI' is for common use of all the cosharers and none of them could claim exclusive right over the same. Appellants have further stated that the aforesaid judgment has attained finality as the same has not been challenged till date in appeal.
5 The said Jagat Singh in the year 1992 stacked a lot of building material to raise illegal construction over the aforementioned area marked as DGHI in the site plan. In view of the same, Khubi Ram and other cosharers filed a suit for mandatory and permanent injunction against him and the same was disposed off on 30.09.2010 and an appeal is pending in the said matter.
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6 The respondents have their house towards the southern end of the
private gali, adjoining the dead end of the gali.
7 Appellants have submitted that since the property behind the
respondent's house is private property of the appellants, the respondent have their entrance from the southern side of their house. Furthermore the electricity, water and sewage connections to the house of the defendants are towards the gali on the southern side of their house and not towards the side of the private gali marked red in the site plan.
8 Sometimes in November, 2002, the respondents requested the appellants to allow them to use their private gali to transport building material to reconstruct their old single storey house to the present five storey to avoid a longer route and enable them to save some labourer, time, money, etc. The appellants being good neighbour allowed the respondents to use the said gali. The respondents raised illegal construction uptil 5 storeys which are completely contrary to the building bye laws. Furthermore, the respondents with ulterior motive made five ventilators towards the private gali of the appellants thereby invading into the appellants's privacy.
9 The appellants requested the respondents to shut the five ventilators invading their privacy and the respondents also assured to do the RCA No.17/11 Contd....P..3 of 18 : 4 : same in a while. However, when the respondents failed to do so, the appellants raised the wall on the southern side of the gali as the respondents instead of closing the ventilators deliberately left a hole in his wall leading to the private gali to make a door towards the private gali. Appellants have submitted that there was no door in the respondent's property opening towards the private gali prior to new construction of five storey. The appellants have been using the aforementioned private gali since times immemorial and the respondents have no right to use the same.
10 The respondents illegally interfered in the raising the said boundary wall by the appellants as they did not let the mason construct a wall demarcating appellants' property. Furthermore, they threatened the appellants of dire consequences if they did not let them use their private gali for ingress and egress to their house and also said that they will never close the aforementioned five ventilators.
11 Aggrieved by the aforementioned, the appellants filed suit for permanent and mandatory injunction against the respondents. Appellants have submitted that during the Pendency of the present suit, the respondents illegally affixed a door towards the private gali and the same was complained to the police and other concerned authorities. However, the Ld. Trial court dismissed the suit. Hence, the appeal has been filed.
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GROUNDS OF APPEAL :
A) Because the Ld. trial court did not appreciate the fact that the
section 312 and 313 of DMC Act will not apply on the appellants' passage as Section 312 states that :
"312. Owners, obligation when dealing with land as building sites If the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street."
Furthermore section 313 DMC Act states that before dealing / utilizing the land as per section 312, a lay out needs to be sent to the commissioner for his sanction.
B) The Ld. trial court did not appreciate the fact that the passage in question was not "land utilised, sold, leased out or otherwise disposed of for the construction of buildings" as required under section in section 312 of DMC. Therefore, both the sections i.e. 312 and 313 DMC Act will not apply to the present case.
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C) Because the Ld. trial court judge did not appreciate the fact that the
dispute gali in question is not a street. It is reiterated and reaffirmed that it is part of appellants' private property left empty for the usage of the coowners. Moreover to declare a street / gali to be public street, the requisites laid down in section 316 DMC Act needs to be fulfilled which are not done in the present case and no declaration is also made u/s 316 that is why the same is also not placed on record :
316. Right of owners to require streets to be declared publication If any street has been levelled, paved, metalled, flagged, channelled, sewered, drained, conserved and lighted under the provisions of section 315, the Commissioner may, and on the requisition of a majority of the owners referred to in subsection (1) of that section shall, declare such a street to be a public street and thereupon the street shall vest in the Corporation.
D) Because the Ld. Trial court did not appreciate the fact that even section 320 of DMC Act will not be applicable in the present case as it pertains to obstructions made on street whereas passage in question is in private property of appellants used exclusively by them for beneficial enjoyment of their property for a very long time.
E) Because the Ld. Trial court while passing the impugned judgment
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did not consider the title documents placed on record showing the appellants as owners of the whole khasra No. 511, village Shahpur Jat, New Delhi. F) Because the Ld. Trial court did not appreciate the fact that the respondent's water, electricity and sewer connection are coming from passage on the southern side and not from the side of the disputed passage which clearly shows that it was a public street and the respondent came to know about the same only when he was constructing his own house. The said passage is covered with the chajjas of the appellants and the same is in the property of the appellants.
G) Because the Ld. Trial court did not appreciate that the fact that the onus to prove the said passage as public street was on the respondent however the respondent have not filed any documentary evidence nor any testimonies of defendants witness to prove the said passage as 'public' street or the same was owned and maintained by MCD.
H) Because the Ld. Trial court wrongly assumed that if a private chowkidar is not posted at the entrance or a sweeper is not employed or a signboard of private street is not placed then the street becomes public street.
I) Because the Ld. Trial court did not appreciate the facts that there
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was a blatant contradiction in respondent's stand that they have carried out no construction over their property since 1957 to negate the appellants stand. However, the respondent's witness DW.2 stated that the property was original two storied and the existing five storeys were constructed later on. J) Because the Ld. Trial court did not consider the photographs of the respondent's property placed on record which clearly substantiate the appellants' stand as the construction shown in the photographs is fresh and not of 1957 as alleged by the respondent and the said photograph i.e. PW.1/7 is also admitted by DW.1, Yashpal in his crossexamination.
K) Because the Ld. Trial court did not appreciate the testimonies of the plaintiff's witnesses in totality as PW.2 categorically stated that the sewers were maintained by the private parties and PW.4 also stated that there is no electricity pole of MCD in the disputed street and no municipal sweeper comes to clean the said street. He further testified that the appellants only allowed vendors from whom they intend to buy things.
L) Because the Ld. Trial court did not appreciate the fact that the Patwari, PW.6, Pawan Kumar categorically stated that there is no street in khasra No. 511 in village Shahpur Jat, New Delhi as per their records which clearly shows that there was no proof of the disputed street being a public street.
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M) Because the Ld. Trial court erred in not taking adverse inference
against the respondents under section 114 Evidence Act for not examining any other person of the locality specifically neighbours of the respondents. The best evidence has been withheld by them which could have been an employee of MCD to prove this fact.
N) Because the Ld. Trial court wrongly held that since the relief of declaration and possession are not sought by the appellants then in that eventuality, the appellants' case of permanent and mandatory injunction is not maintainable. The gali / passage is in joint possession of the appellants and they have proved their case on record.
O) Because the Ld. Trial court did not appreciate the testimony of DW. 2, Bhim Singh Lambardar wherein he categorically admitted that the appellants are the owners of khasra No. 511 and there was no outsider except Ishwar Singh residing around the disputed gali. The said witness also contradicts the respondent's stand by stating that the originally the respondents' house was only single storey and the other four storey's were constructed later on. The defence of the respondent is falsified by the statement of PW.2 who produced and proved the document Exb.PW.2/1 which has established on record that the building of the respondent was 11/2 storey only in the year 1983.
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P) Because the Ld. Trial court did not appreciate the of the whole
khasra (comprising of residence of the appellants) in the name of appellants' ancestors. It is reiterated and reaffirmed that the passage om question is part of appellants' private property which was left vacant for peaceful and beneficial enjoyment of their respective properties and they have been using the same from 1970's when the appellants first raise construction to built their houses on khasra No. 511 in village Shahpur Jat, New Delhi.
Q) Because the Ld. Trial court did not appreciate the judgment of 'Kallo Mal Gopal Chand Vs. Commissioner of MCD' wherein it is categorically stated that the commissioner cannot declare a private street into public street by his sweet will. In order to declare a private street in public street a declaration of majority of the owners residing in the street is mandatory as stated in section 316 of DMC Act.
R) Because the Ld. Trial court did not appreciate the local commissioner's report filed in 'Jagat Singh Vs. Khubi Ram' wherein the local commissioner clearly stated that the khasra no. 511 is owned and is being managed by the appellants and also indicated that there was no back door in the respondents' house opening in the said gali / passage which is also exhibited by the Local Commissioner Ajay Kumar in the present case as Exb.PW.3/1 RCA No.17/11 Contd....P..10 of 18 : 11 : S) Because in view of the aforementioned contradictions in the testimony of DW.1 his whole testimony should have been discredited by the Ld. Trial court.
T) Because the Ld. Trial court rather than deciding each issue independently on merit and reason wrongly decided all the issues against the appellants by merely deciding the first issue against them 12 Along with the appeal, appellants has filed two applications u/o 41 Rule 27 CPC for placing additional documents on record. In the first application on 13.01.12, appellants has sought to place judgment in suit No. 829/93 titled as Jagat Singh Vs. Khubi Ram decided on 03.11.2000, judgment in suit No.26/08 titled as Khubi Ram Vs. Jagat Singh & Others and copy of application for demarcation of khasra No. 511 and the gali along with site plan along with reply of SDM dated 28.11.2011. appellants have nowhere explained as to why these documents were not filed before Ld. Trial court when except for application for demarcation of khasra No. 511 and the gali along with reply of SDM dated 28.11.2011, rest of the documents were in their possession and the plaint and replication filed by the appellant before Ld. Trial court make specific mention in the pleadings of the appellants and they had referred to the same for relying on them. In the matter of Food Corporation of India Vs. Sarvshri Bal Karan Singh & Ors., 2012 (127) DRJ 224; Hon'ble High Court of Delhi held that once RCA No.17/11 Contd....P..11 of 18 : 12 : appellant has complete opportunity and had led evidence then, it now cannot be allowed to lead evidence. Object of order 41 Rule 27 CPC is not to enable a litigant who has not been vigilant by leading evidence in the suit to fill up the lacuna by again seeking to get the clock set back. Thus, these documents cannot be taken on record at this stage. The appellants have already filed a site plan before Ld. Trial court and no site plan can be taken on record. With respect to demarcation report, the report is not Nazaria Naksha and further has not been proved and otherwise also, has been obtained on application of a person who is not a party to the suit No. 633/06 nor to this appeal. Further, as such also, the said document is not relevant for deciding the present appeal which is a pre requisite for allowing an application u/o 41 Rule 27 CPC. Accordingly, this application of appellants u/o 41 Rule 27 CPC is disallowed. 13 Appellants have filed another application u/o 41 Rule 27 CPC on 18.04.12 seeking to file ownership documents pertaining to the gali in khasra No.
511. The said document is Khasra Girdwari. Khasra Girdwari is not a document of title and otherwise also, a copy of that is already there on Trial court record and as such is irrelevant for determining the ownership of the suit property. Accordingly, this application is also disallowed.
14 No formal reply was filed by the respondent and the matter was argued directly.
RCA No.17/11 Contd....P..12 of 18 : 13 : 15 Arguments heard. Record perused carefully. 16 Appellants have submitted that section 312 & 313 of DMC Act will
not apply to the appellants case, however, I differ with the contention of appellants. Admittedly predecessor in interest of the appellants possessed khasra no. 511, Shahpur Jat, New Delhi which the appellants for the purpose of enjoying the separate parcels of land comprised in the said khasra had by mutual arrangement and settlement constructed the residential houses over the portions of khasra no. 511 and the land measuring 600 sq. yard was mutually agreed to be kept and utilized for common purposes by the cosharers. The said area has been referred to as common passage / gali / private gali by the appellants. Section 312 places an obligation on the owner of land that if constructs the building as in the present matter, he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street. Before the owner acts u/s 312, he under section 313 has to get his lay out plan approved by the Commissioner to decided by Standing Committee. The appellants in the present matter admittedly did not comply with the same. Under Section 313 of DMC Act, no private street can be created without prior approval of Commissioner, MCD. Thus, there is no merit in the ground of objection that sections 312 & 313 will not apply.
17 Appellant has relied on the judgment passed in the civil suit bearing
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no. 125/1984. In that matter, one of the cosharers namely Jagat Singh alleging himself to be the owner and in exclusive possession of 60 sq. yards marked as 'DGHI' in the site plan, filed a civil suit bearing No. 125/1984 for permanent injunction against other cosharers restraining them from forcibly dispossessing him from the property which was dismissed holding that the area marked as 'DGHI' is for common use of all the cosharers and none of them could claim exclusive right over the same. Appellants have further stated that the aforesaid judgment has attained finality as the same has not been challenged till date in appeal. The said finding does not imply in any manner that area marked as DGHI is under the exclusive ownership of appellant.
18 Appellants have also submitted that appellants have not fulfilled the requisites of section 316 DMC Act and accordingly, the gali / street cannot be declared to be a public street. Section 316 would have come into picture after compliance of section 315 of DMC Act.
19 There are water connections and electricity connections installed and maintained by public authorities. Appellants contended that electricity, water and sewage connections to the house of the defendants are towards the gali on the southern side of their house and not towards the side of the private gali and have argued that it clearly shows that it was never public street. PW4 in his cross examination before Ld. Trial Court admitted that sewer line has been laid in RCA No.17/11 Contd....P..14 of 18 : 15 : said gali but he stated that he did not know who had laid the sewer line establishing that the appellants had not laid them. Water lanes have been laid in half of the said street has also been admitted. The appellants are also paying property tax of their houses. He also stated that the meter readers of electricity department used the said street / gali for visiting houses situated on the both sides of said gali as well as postman used to street for delivery of letters to the residents situated on either side of the street. No guard has been employed by appellants to restrict the entry of outsiders in the gali. There is contradiction with respect to cleaning of the gali by the Municipal sweeper, however, PW.4 stated that only those vegetable vendors were allowed in the said gali from whom appellants wanted to buy vegetables. In view of these observations, Ld. Trial court has rightly observed that the street / gali cannot be given the status of private street.
20 A perusal of impugned judgment reveals that Ld. Trial court did not grant the relief with respect to restraining the respondents from raising the wall in favour of appellants in view of section 320 of DMC Act which reads as "1) No person shall except with the permission of the Commissioner granted in his behalf, erect or set up any wall, fence, rail, post, step, booth or other structure whether fixed or movable or whether of a permanent or temporary nature or any fixture in or upon any street.............................." Thus, section 320 of DMC Act clearly states that no wall can be erected on any street whether public or private RCA No.17/11 Contd....P..15 of 18 : 16 : without the permission of the Commissioner.
21 Appellants have raised different grounds of objection with respect to observation of Ld. Trial Court that suit property is a public street and have averred that the said finding is incorrect and Ld. Trial Court should not have disallowed the claim of the appellants for the same. Appellants in the present appeal as well as in the pleadings before Ld. Trial Court as well as in their evidence has referred to the passage as a gali, which in common parlance means a street. No permission has been sought by the appellants in the present matter and accordingly, Ld. Trial court rightly disallowed the claim of the appellants to restrain the respondents from creating of any obstacle in the raising of the wall. Ld. Trial Court has specifically observed that no wall can be erected on any street whether public or private without the permission of the Commissioner and therefore did not grant the relief sought by the appellants. Thus the relief was disallowed by Ld. Trial Court on account of disputed street being a gali / street and not because it was a public gali / street. With respect to statement of Patwari, PW6 that there is no street in Khasara No.511 as per their records becomes irrelevant since permission for the said gali was never obtained from the Commissioner so could not have become a part of record. The said relief can be granted only through permission of Commissioner, MCD and not by way of Civil Suit.
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22 Ld. Trial Court has rightly observed that the ownership of street has
fallen in clout as the appellants are submitting that the passage is a private street while the respondents are claiming it to be a public street and in view of judgment of AIR 2008 SC 2033 "Anathula Sudhakar v. P. Buchi Reddy, a simple suit for permanent injunction is not maintainable. In that matter it was held that where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy.
23 Appellants had prayed for directing the respondents to close their five cement ventilators towards the house of the appellants but has not elaborated as to on what basis the relief has been claimed. Ld. Trial Court has rightly observed that if the same is in violation of MCD Rules or Fire Safety Rules as mentioned in the plaint then appellants have appropriate remedy under those rules / DMC Act. Section 318 of DMC Act empowers the Commissioner to pass an order in respect of the same. Thus I find no reason to interfere with the finding of Ld. Trial Court that the proper authority to be approached for the said relief is under the DMC Act and not the court.
24 In view of these observations, the appeal is dismissed. No order as to costs.
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25 Copy of order be sent alongwith TCR.
26 File be consigned to Record Room after necessary compliance.
Dictated and announced in the open
court on 22.01.2013
(Dr. Neera Bharihoke)
ADJI (South) Saket Courts
22.01.2013
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