Delhi District Court
Rajkumari Takkar vs Krishan Arora on 23 March, 2024
THE COURT OF MS. CHARU ASIWAL,
CIVIL JUDGE-03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
Suit No. 709/18
In the matter of:-
RAJKUMARI TAKKAR
R/o B-45B, Kalkaji,
New Delhi - 110019 ...Plaintiff
Vs.
1.KRISHANA ARORA W/o Vedparkash Arora, R/o H. No. B-45A, Kalkaji, New Delhi - 110019
2. DELHI POLLUTION CONTROL BOARD(deleted from the array of parties vide order dated 02.06.2018) Through Concern Officer 4th & 5th Floor, ISBT Building, Kashmere Gate, New Delhi - 110006 ...Defendants Date of institution of Suit : 02.06.2018 Date on which Judgment was reserved : Not Reserved Date of pronouncement of the Judgment : 23.03.2024 JUDGMENT FOR PERMANENT AND MANDATORY INJUNCTION
1. Brief facts of the case of the plaintiff that she is a resident of H. No. B-45B, Kalkaji, New Delhi - 110019 and that defendant is the resident of the adjoining house bearing no.B-45A, Kalkaji, New Delhi, wherein it is claimed that CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 1 of 14 both the houses have attached walls. It is asserted by the plaintiff that after the plaintiff and her family moved to the above named house, defendant installed two "sanitary pipes" in the wall attached to the house of the plaintiff because of which foul smell started to emanate and consequently has caused health issues and unsanitary living conditions. Plaintiff also made request to the defendant to remove the two pipes, however, her request fell to deaf ears. It is further claimed that in the year 2016, defendant also extended the said pipes from the balcony of the first floor to the balcony of second floor and consequently, now the pipes are directly in front of the room of plaintiff's grand daughter and accordingly, said area of the house is also plagued with foul smell. It is with these facts that the present suit of permanent and mandatory injunction has been filed and the following reliefs have been prayed:-
a) Pass a decreed for Permanent Injunction in favour of the plaintiff and against the defendant thereby issuing direction to defendant for not installing any sanitary pipes on the side wall/window passage/towards the balcony of the house of plaintiff.
b) Pass a decree for 'mandatory injunction' directing the defendant to remove the plastic pipe from the common area and a pipes installed and attached to the wall of plaintiff house more specifically shown in red colour in the site plan CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 2 of 14 annexed.
c) Pass a decree for permanent injunction with cost in favour of the plaintiff.
d) Pass directions to defendant no.2 for the inspection of site and for filling a report over the pollution caused by the pipes mentioned in the site plan.
WRITTEN STATEMENT OF DEFENDANT.
2. Defendant contend that the property of the defendant has been constructed as per the sanctioned site plan and that the property has remained unchanged since the year 1974. It is further contended by the defendant that the pipes in question are only used for drainage of rain water and they are not being utilised for the purpose of disposal of sullage or for disposal of any kind of waste originating from the toilets and therefore, the question of foul smell does not arise. It is further contended that there is no other provision for exit of rain water from the property of the defendant and the said pipes have been utilised from the aforementioned purpose since 1974, whereas the property of the plaintiff was constructed in the year 2002. Defendant further claims that the instant suit has been filed for wrongful reasons, wherein it is the plaintiff who has opened an unauthorised window on the side of the defendant and it is plaintiff who has encroached on the property of the defendant. It is with these facts that the present suit has been defended.
CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 3 of 14
3. Thereafter, replication was also filed by the plaintiff wherein each and every averments of the defendant has been denied by the plaintiff. Thereafter, vide order dated 11.11.2021, following issues were framed:
(1) Whether there is no cause of action in favour of plaintiff to file the present suit?OPD. (2) Whether the defendant has installed the sanitary pipes against by-laws of MCD?OPP.
(3) Whether the plaintiff is entitled for permanent injunction to restrain the defendant from installing any sanitary pipe on the side wall /window, passage of balcony of house of plaintiff?OPP. (4) Whether the plaintiff is entitled to decree to mandatory injunction against defendant directing him to remove the plastic pipe from common area and common wall of the plaintiff's house?OPP.
(5) Relief.
PLAINTIFF'S EVIDENCE: -
4. The plaintiff, deposed as PW1, vide affidavit of evidence, exhibited as Ex.PW1/A and reiterated the contents of the plaint.
5. For the sake of brevity and to avoid repetition, the contents of the affidavit and documents are not being reproduced.
The plaintiff relied upon the following documents: -
a) The complaint dated 07.05.2018 addressed to SDMC;
complaint dated 23.04.2018 addressed to Pollution CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 4 of 14 Department; reply of SDMC dated 10.05.2018; Police complaint dated 20.04.2018 addressed to PS Kalkaji and other photocopy of complaints is Ex.PW1/1(Colly.)
b) Legal notice and postal receipts are Ex.PW1/2(Colly.)
c) Site plan is Ex.PW1/3.
d) Photographs of property/house of deponent is Ex.PW1/4(Colly.).
6. PW-1 was duly cross examined by Ld. Counsel for the defendant.
7. Thereafter, the plaintiff closed his evidence on 26.04.2023.
The matter was put up for defendant evidence.
DEFENDANT'S EVIDENCE:-
8. The defendant, deposed as DW1, vide affidavit of evidence, exhibited as Ex.DW1/A.
9. For the sake of brevity and to avoid repetition, the contents of the affidavit and documents are not being reproduced. Defendant relied upon the following documents:-
a) Completion Certificate dated 27.08.1974 is exhibited as Ex.DW1/1, which is now de-exhibited and marked as Mark A.
b) Photographs are exhibited as Ex.DW1/2(Colly.). Running into six pages.
c) Complaint to SHO, PS Kalkaji dated 28.02.2008 is marked as Mark B.
10. DW-1 was duly cross examined by Ld. Counsel for the CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 5 of 14 plaintiff.
11. Thereafter, the defendant closed his evidence vide separate statement of defendants on 25.01.2024. The matter was put up for final arguments.
FINAL ARGUMENTS:-
12. Thereafter, final arguments were heard from both the sides, wherein both the sides also advanced their arguments on the point of limitation.
ISSUE-WISE FINDINGS:-
Issue no.1: Whether there is no cause of action in favour of plaintiff to file the present suit?OPD.
13. No evidence has been led by the defendant on this issue, therefore the burden remains undischarged. Accordingly, issue no.1 is decided against the defendant and in favour of the plaintiff.
Issue no.2: Whether the defendant has installed the sanitary pipes against by-laws of MCD?OPP.
14. The entire suit of the plaintiff hinges on the grounds that the defendant has installed "sanitary pipes" which are attached to the wall of the plaintiff and the said pipes carries sullage and other waste material which affects the quality of life and health of the plaintiff and her family CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 6 of 14 members as foul smell also emanates from the pipes.
15. A specific burden was imposed on the plaintiff to prove that the installation of pipes by defendant is against the bylaws of the MCD. However, not even a single piece of evidence has been tendered by the plaintiff which would allow the plaintiff to discharge this burden. Rather, during the cross-examination dated 16.11.2022 of PW-1, she has specifically admitted that the entire construction of the defendant's house had already completed by the time plaintiff had purchased her property in the year 1979. Therefore, if at all, the construction of defendant's property is in violation of bylaws of MCD, plaintiff was in the know since the year 1979. Furthermore, plaintiff has neither filed any bylaws of Municipal Corporation of Delhi nor have a witness summoned from Municipal Corporation of Delhi to prove that construction of defendant's property is in violation of the sanctioned plan. Therefore, in absence of any evidence, issue no.2 stands decided against the plaintiff and in favour of the defendant.
Issue no. 3: Whether the plaintiff is entitled for permanent injunction to restrain the defendant from installing any sanitary pipe on the side wall /window, passage of balcony of house of plaintiff?OPP.
& Issue no. 4: Whether the plaintiff is entitled to decree to mandatory injunction against defendant directing him CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 7 of 14 to remove the plastic pipe from common area and common wall of the plaintiff's house?OPP.
16. Both the issues are taken up together being interlinked.
17. As stated above, the entire suit revolves around the assertion of the plaintiff that defendant has installed two "sanitary pipes" on the wall of the plaintiff, which causes foul smell to emanate and therefore, affects the quality of life of the plaintiff and her family, and which has led to health problems. To prove such assertion, plaintiff has relied upon a complaint dated 07.05.2018 written to SDMC and another complaint dated 23.04.2018 which is addressed to Pollution Department. Plaintiff has also relied upon reply of SDMC dated 10.05.2018. All these documents are collectively identified as Ex.PW-1/1. Upon perusal of complaints dated 07.05.2018 and 23.04.2018, it is found that plaintiff has again and again asserted that the two pipes have been mounted/installed on the wall of the plaintiff and thereby breaching her rights. However, during cross-examination dated 16.11.2022, plaintiff herself has admitted that "the pipe is installed at the joint wall" (sic). Further, witness has also deposed that "It is correct that the wall in which the pipe in question is installed not belong to us" (sic). This admission in itself is sufficient to prove that the pipes in question, as asserted by the plaintiff, are not mounted on any part of the property of the plaintiff.
CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 8 of 14
18. Additionally, during the proceedings in the present suit vide order dated 20.07.2022, a Local Commissioner was also appointed by the Court, wherein Local Commissioner was directed to file his report pertaining to five questions drafted by the Court. In answer to one such question, Local Commissioner had filed his report stating that none of the pipes as claimed by the plaintiff are installed at the property of the plaintiff, rather Local Commissioner had apprised that the pipes in question are installed in the property of the defendant. Therefore, it stands conclusively proved that the version of the plaintiff is incorrect as the pipes in dispute were never installed at her wall.
19. Furthermore, during the entire evidence as well as in the pleadings, plaintiff has vehemently asserted that the pipes are an origin of foul smell which in turn has led to health issues in the family of the plaintiff. However, plaintiff has not brought even a single piece of evidence so as to prove that the pipes have ever caused emission of any foul smell. Further, no evidence with respect to consequent health issues have been brought forth by the plaintiff. Rather, plaintiff has not even pleaded the kind of health issues faced by her or her family. In cross-examination dated 26.04.2023, plaintiff herself specifically admitted that she has not placed any medical records to show any illness suffered by herself or her family owing to the unpleasant smell from the pipes in question. Furthermore, even the CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 9 of 14 Local Commissioner has apprised that at the time when the commission was carried-out, there was no foul smell.
20. Further, another such assertion of the plaintiff is that the pipe of the defendant is jutting out vertically at the second floor balcony of the plaintiff, which leads to further emission of the foul smell. However, in the plaint itself, specifically in paragraph three, plaintiff has averred that "on the oral request in the year 2016, the defendant of said residence extended the pipes from the balcony of first floor to the balcony of the second floor of her house". Upon perusal of photographs filed by the Local Commissioner, specifically photograph no.1, as well as the photographs filed by the plaintiff i.e. Ex.PW-1/4 (colly), the pipe in question can be seen jutting out. Therefore, it is clear that the pipe extends vertically beyond the balcony of the second floor of the plaintiff at the request of the plaintiff herself. Therefore, there does not appear that any action on the part of the defendant regarding the pipes is illegal. Rather, the extension of the pipe is beyond the balcony of the plaintiff has been done only at her request.
21. Furthermore, as has been apprised by the Local Commissioner as well that the pipe which is running from the ground floor till above appears to be installed at the time of construction of the building as the pipe is concealed one. Therefore, the balance of probabilities would indicate that the pipe was installed at the time when CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 10 of 14 the property of the defendant was constructed i.e. prior to 1979 (when the plaintiff constructed her own property). Therefore, the pipes appear to be installed in the house of the defendant even before the construction of the property of the plaintiff took place.
22. Further, during the course of arguments as well as during the examination of the plaintiff, she has vehemently pressed upon her easementary rights to enjoy her property and emission of air pollution by the defendant. In such a situation, it is beneficial to revisit the definition of easement as given in the Indian Easements Act, 1882. Section 4 of Easement Act defines - "An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own".
23. Upon the bare perusal of the above Section, it is apparent that easement would apply in a situation when the occupier of that land already possesses the right, the breach of which is asserted. In the present case, as observed above, plaintiff has not been able to show that the pipes in question are installed on her wall, rather it has been sufficiently proven that the pipes in question are mounted on the walls of the defendant. Further, as apprised by the Local Commissioner, the pipe running from ground floor CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 11 of 14 to above was concealed one and therefore, has been installed since the time the construction of the property of the defendant took place. Further, plaintiff has also not been able to show that there has been foul smell emanating from those pipes. Therefore, it cannot be held that easementary rights of the plaintiff have been violated. In a situation where emission of foul smell or any health issues could not be proved by the plaintiff, the pipes in question cannot be removed specifically when they form part of the property of the defendant. Accordingly, with these observations, it is held that the plaintiff has failed to discharge her burden on issue no.3 and 4. Accordingly, plaintiff is not found entitled to neither the relief of permanent injunction nor mandatory injunction. Accordingly, issue no.3 and 4 are decided against the plaintiff and in favour of the defendant.
24. Further, at this stage, I also find it opportune to address the issue of limitation in the present suit. It is to be noted that there are no pleadings to the effect of limitation, however during the course of final argument, both the parties had addressed their arguments on the point of limitation as well. It was contended by Ld. counsel for the defendant that the present suit is also barred by the law of limitation as the cause of action asserted herein, if any, had accrued in favour of the plaintiff many years ago as defendant has been in occupation of his property since the year 1972, CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 12 of 14 wherein the construction of the property was also concluded by that time. He further argued that even the plaintiff has been residing in the property since 1979 and therefore, the cause of action, if any, has been in knowledge of the plaintiff since many decades, wherein the suit has been instituted on 02.06.2018. Per contra, Ld. counsel for the plaintiff had denied that the suit is barred by limitation stating that cause of action accrued only when foul smell started to emanate from the pipes. Upon perusal of record, it does appear that the cause of action has not been specifically spelled out by the plaintiff as the cause of action paragraph only states that the cause of action accrued when despite request defendant failed to remove the sanitary pipes. However, no dates have been mentioned by the plaintiff regarding her cause of action. Further, Ex.PW-1/2 (colly.) i.e. the legal notice issued to the defendant clearly states that even before 2016, plaintiff has been regularly requesting the defendant to remove the pipes for many years, however she failed to do so. Therefore, there is a possibility that the cause of action may have accrued prior to year 2016, however without leading any specific evidence to that effect, any cogent finding as to the point of limitation cannot be given and therefore, this Court is refraining giving any finding on the point of limitation without any evidence.
CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 13 of 14 RELIEF
25. In view of the above findings on issue no.2, 3 and 4, wherein plaintiff failed to discharge her burden of proof, the suit of the plaintiff stands dismissed.
26. No orders as to cost are made.
27. File be consigned to Record Room after due compliance.
Pronounced in the open (Charu Asiwal)
Court on 23.03.2024 Civil Judge-03, South East,
Saket Court, New Delhi.
23.03.2024
CS SCJ 709/18 RAJKUMARI TAKKAR Vs. KRISHAN ARORA PAGE 14 of 14