Delhi District Court
Sh. Laxmi Chand (Deceased) vs Sh. Than Chand (Deceased) on 11 May, 2018
Page no. 1 of 13
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
JSCC CUMASCJCUMGUARDIAN JUDGE,
DISTRICT: SOUTHEAST, NEW DELHI.
RCA No. 04/16
IN THE MATTER OF :
Sh. Laxmi Chand (Deceased)
Through His LR's
Shri Sushil Vashishta
S/o Late Shri Laxmi Chand
R/o H. no. 33, Bazar Lane,
Jangpura, Bhogal, New Delhi.
.....Appellant
VERSUS
1. Sh. Than Chand (Deceased)
Through his LRs
(i) Smt. Nanhi Devi
W/o Late Shri Than Chand
(ii) Shri Raja Ram
S/o Late Shri Than Chand
(iii) Shri Ram Niwas
S/o Late Shri Than Chand
All R/o H. no. 44, Bazar Lane
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 2 of 13
Bhogal, New Delhi.
(vi) Shri Ravindra Kumar Vashist
S/o Late Shri Than Chand
R/o H. no. BH80, East Shalimar,
New Delhi
(v) Shri Jai Bhagwan
S/o Late Shri Than Chand
R/o Q. no. B295, Sriniwaspuri
New Delhi
(vi) Shri Ishwar Chand
S/o Late Shri Than Chand
R/o H. no. 118, Hari Nagar,
Ashram, New Delhi.
(vii) Smt. Jagwati Devi
W/o Shri J. P. Sharma
R/o Plot No. 85, Flat no. 42,
Trilokya Adarsh Kunj,
Patparganj, Delhi.
(viii) Smt. Manno Devi
W/o Shri Ishwar Singh Sharma
R/o Village & PO Khera Kalan
Mohala Brahaman, Delhi
(ix) Smt. Nirmala Devi
W/o Shri Jagdish Sharma
(DESU Inspector)
R/o H. no. 1448/1, Hari Nagar,
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 3 of 13
Ashram, New Delhi
(x) Smt. Memo Devi
W/o Shri Bhushan Sharma
R/o H. no. 98, Trilokya Adarsh Kunj
Patparganj, Delhi.
2. Shri Suraj Narayan
S/o Shri Kripa Ram
R/o 33, Bazar Lane,
Jangpura, New Delhi
3. Umanandan Vashista
S/o Late Shri Laxmi Chand
R/o 33, Bazar Lane,
Jangpura Bhogal, New Delhi
LRs of Laxmi Chand
Perform Respondents
4. Rajesh Vashista S/o Late Shri Laxmi Chand R/o 33, Bazar Lane, Jangpura, Bhogal, New Delhi LRs of Laxmi Chand Perform respondent.
5. Pawan Vashishta S/o Late Shri Laxmi Chand R/o 33, Bazar Lane, Jangpura Bhogal, New Delhi Perform Respondent .........Respondents RCA No. 04/16 (Sushil Anuj Tyagi) Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge Vs. South East, Saket Courts Shri Than Chand (deceased) 11.05.2018 Page no. 4 of 13 Date of institution : 13.03.2015 Reserved for Judgment : 21.04.2018 Date of decision : 11.05.2018 ORDER ON APPEAL
1. This is a regular first appeal filed against the Judgment and decree dated 23.09.2008 passed by the then Ld. Civil Judge, Shri Vidhya Prakash, Delhi in Civil Suit no. 51/08 (old No.343/78), titled as Sh. Laxmi Chand (Deceased through LRs) Vs. Sh. Than Chand (Deceased through LRs)
2. The brief facts of the case as per the appellant are that the appellant /plaintiff had filed a suit for permanent and mandatory injunction against the respondent for the following relief:
"pass a decree for mandatory injunction in favour of the plaintiff and against the defendants, directing the defendants no. not to demolish the wall in dispute, and the other temporary constructions made in the plot in dispute and also restrain from doing any thing which may cause loss to the rights of the plaintiff with respect to the disputed property in any manner whatsoever, and he be further restrained from dividing the plot in dispute in any manner without the consent in writing of the plaintiff."
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 5 of 13
3. The case of the appellant is that all the parties are real brothers and inherited the property no.147, Hari Nagar Ashram, Mathura Road, New Delhi (herein after referred to as the suit property) in equal shares from their father namely Sh. Kirpa Ram who expired on 01.07.57. It is further case of appellant that respondent no.2 had already sold his share of suit property to some other person against consideration and has been left with no right or interest in the suit property. It is further averred that appellant and respondent no.1 are in exclusive possession of the remaining portion of the suit property having equal shares but respondent no.1 without the consent of appellant, raised a wall illegally in the middle of the suit property and also raised some temporary kacha type construction resulting into unlawful and unauthorised division of the suit property. According to appellant, respondent no.1 has no right to raise the wall or to raise any such construction without his consent as the suit property continues to be under joint ownership of the parties having equal share in each and every inch thereof. It is also claimed that raising of wall by respondent no.1 has also caused disadvantage to the appellant by which respondent no.1 is trying to establish his right of possession against the interest of appellant. It is further claimed in para 9 of the plaint that respondent no.1 had raised the unauthorised RCA No. 04/16 (Sushil Anuj Tyagi) Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge Vs. South East, Saket Courts Shri Than Chand (deceased) 11.05.2018 Page no. 6 of 13 construction on 30.10.78 and has refused to accede to his request to desist from his illegal designs.
4. On merits, respondent no.1 has claimed that their father had expired on 1.7.51. According to him, all the parties to the suit had inherited the suit property in equal shares and the suit property was orally divided interse between the parties. Respondent no.2 had sold his share in the suit property to one Sh. Hari Singh in 1971 whereas appellant and respondent no.1 are in exclusive shares of their respective portions having separate construction. He had also mentioned that other properties left by Sh. Kirpa Ram have also been mutually divided between the parties. As regards the wall in dispute, he has claimed that said wall existed in the portion exclusively belonging to him and same was raised about five years back. He has every right to repair and raise construction on his property. Other allegations made in the plaint have also been denied.
5. Vide the present appeal, the appellant has assailed the judgment and decree passed by Shri Vidya Prakash, Ld. Civil Judge, dated 23.09.2008. The appeal has been opposed by only one of the LR of defendant i.e. respondent no. 4.
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 7 of 13
6. It is alleged by the appellant that the suit filed by the plaintiff/appellant was dismissed on the ground that issue no. 4 has not been proved by the plaintiff although the remaining issues were answered in favour of the plaintiff. It is alleged that the impugned judgment and decree qua issue no. 4 is absolutely contrary to the facts and law. It is alleged that the Ld. Trial Court has erred in coming to the conclusion that plaintiff has failed to brought on record as to when the defendant no. 1 had raised the said construction in the suit property. It is submitted that plaintiff has categorically pleaded that on 30.10.1978, the defendant no. 1 raised unauthorized construction on the plot without the consent of the plaintiff and in the WS, the defendant has simply denied the said para with further assertion that the plaintiff has no cause of action. It is also alleged that once the Ld. Trial Court has returned a finding that there was no partition as alleged by the defendant, then the observation that the wall was in existence 5 years prior to the filing of the suit is erroneous. It is further submitted that the Ld. Trial Court had concluded that it is quite unbelievable that plaintiff would have agreed to or consented to such type of partition by accepting lesser portion and the same is also against human nature and cannot be swallowed. It is alleged that in the light of this observation, the conclusion of issue no. 4 is contrary to the other observations.
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 8 of 13
7. The appeal is opposed by respondent no. 4. It is submitted that there is no evidence on record to substantiate the ground raised by appellant. It is submitted that Ld. Trial Court has given the finding that the wall existed prior to 45 years of filing the suit. It is further submitted that the report of Local Commissioner nowhere stated that the said partition wall was constructed on 30.10.1978 from foundation. It is further submitted that Trial Court has rightly held that there are delay and latches on the part of appellant.
8. Heard record perused.
9. The impugned judgment of the Trial Court has been challenged by the appellant /plaintiff only qua issue no. 4. The other findings of the Ld. Trial Court have not been challenged by either of the parties that means the issue no. 1 decided by the Ld. Trial Court has attended finality vide which it was concluded that suit property was not partitioned amongst the parties as on the date of filing of the present suit.
10. Now coming to the issue no. 4, the onus to prove this issue was upon the plaintiff. The issue no. 4 was whether the plaintiff is entitled to RCA No. 04/16 (Sushil Anuj Tyagi) Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge Vs. South East, Saket Courts Shri Than Chand (deceased) 11.05.2018 Page no. 9 of 13 injunction prayed for? The Ld. Trial Court observed that plaintiff has failed to prove the cause of action and the plaintiff has nowhere deposed about the particular date or year in which the said construction was allegedly raised by defendant no. 1. The Ld. Trial Court relied upon the testimony of DW1 whereby he has deposed that he constructed the structure on his share on plot before 45 years of filing the present suit. The Ld. Trial Court observed that said portion of DW1 remained uncrossed and unrebutted. It is also observed that in case defendant no. 1 has raised the construction 45 years prior to filing of suit then the present suit is barred by Limitation. The Ld. Trial Court observed that plaintiff is disentitled to relief on account of delay and latches.
11. Bare perusal of para 9 of the plaint reveals that the plaintiff has disclosed that on 30.10.1978, the cause of action has arisen when the defendant no. 1 had raised unauthorized construction on the plot without the consent of the plaintiff. Thus, it cannot be said that plaintiff has not pleaded the date and year of raising unauthorized construction by defendant no. 1. Moreover, the report of Local Commissioner, which has not been considered by the Ld. Trial Court in deciding issue no. 4, mentions that the Local Commissioner visited the premises on 30.11.1978 and found that construction were going on in about half of RCA No. 04/16 (Sushil Anuj Tyagi) Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge Vs. South East, Saket Courts Shri Than Chand (deceased) 11.05.2018 Page no. 10 of 13 the plot and the walls were being raised from the road level which is lower than that of the plot. The Ld. Trial Court has placed heavy reliance upon the statement of DW1 wherein he has stated that he had constructed the impugned wall 45 years ago. No documentary evidence has been produced by the defendant no. 1 to show that the wall was in existence 45 years prior to the filing of the suit. There are counter allegations by both the parties. The plaintiff has stated that wall has been raised on 30.10.1978 and to the contrary, defendant had stated that it was raised 45 years prior to the filing of the suit. In absence of any documentary evidence from either of the sides, this issue needs to have been decided on the basis of inferences to be drawn from the surrounding circumstances.
12. The Ld. Trial Court had already observed that there has been no partition at the time of filing of the suit. Thus, there is no question of separate share of the parties and no question of any partition wall. It is the defence of the defendant that partition took place in the year 1947 and that he has got the bigger portion of the suit property being lesser in value than the portion of the plaintiff which is two sided and has more value. In this regard, it was rightly observed by the Ld. Trial Court that admittedly the parties have inherited the property from their father who RCA No. 04/16 (Sushil Anuj Tyagi) Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge Vs. South East, Saket Courts Shri Than Chand (deceased) 11.05.2018 Page no. 11 of 13 had expired on 01.07.1951 and thus, there was no question of inheritance and partition in the year 1947 as alleged by the defendant. Further, it is pertinent to note that defendant no. 1 had moved an application u/O 6 Rule 17 CPC to incorporate the family settlement dated 09.06.1985 but the same was dismissed by the Trial Court. The defendant no. 1 is bound by his admissions regarding the family settlement dated 09.06.1985. The perusal of the written family arrangement dated 09.06.1985 reveals that Shri Suraj Narain sold his share in property no. 147, Hari Nagar Ashram and the remaining portion was divided equally between Than Chand and Laxmi Narain. It is also mentioned in the settlement that they have got equal area (rakba) in the remaining property. In addition, the report of the Local Commissioner dated 30.11.1978 also favours the case of the plaintiff that there was fresh construction and raising of wall on 30.11.1978.
13. Now as far as the question of delay and latches is concerned the plaintiff has immediately approached the court after the alleged construction was started by the defendant. This is also confirmed by the report of Local Commissioner. Thus it cannot be said that the plaintiff conduct suffered from latches or delay.
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 12 of 13
14. Thus, this court is of the view that the Ld. Trial Court erred in observing that plaintiff has not deposed the date or year in which the construction was raised or that there were delay and latches which disentitled the plaintiff from seeking discretionary relief. The Ld. Trial Court failed to take into consideration the report of the Local Commissioner dated 30.11.1978 while deciding issue no. 4. The Ld. Trial court also erred in placing strong reliance upon the testimony of DW1 regarding the raising of walls 45 years prior to the filing of the suit.
15. In the light of above this court is of the considered view that plaintiff has proved his case on the preponderance of probabilities. The judgment and decree of the Ld. Trial Court dated 23.09.2008 is hereby set aside to the extent of issue no. 4. The suit of the plaintiff is decreed against the defendant for the relief that the defendant no. 1 is directed to demolish the wall in dispute and the other temporary constructions made in the plot in dispute at the expense of defendant no. 1.
16. No order as to costs.
17. Decree sheet be prepared accordingly.
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018
Page no. 13 of 13
18. Copy of this order be sent to the Ld. Trial Court along with the TCR.
19. Appeal file be consigned to the record room.
Announced in the open (Sushil Anuj Tyagi)
Court today on 11 day of
th
JSCCcumASCJcumGJ
May, 2018 South East, Saket Courts
11.05.2018(r)
RCA No. 04/16 (Sushil Anuj Tyagi)
Shri Laxmi Chand (Deceased) JSCC cumASCJcumGuardian Judge
Vs. South East, Saket Courts
Shri Than Chand (deceased) 11.05.2018