Delhi District Court
Smt. Rukhsana W/O Late Mohd. Gulzar ... vs Mohd. Mussa S/O Mohd. Yusuf on 10 October, 2013
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IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 420/13
In the matter of :
SMT. RUKHSANA W/O LATE MOHD. GULZAR AHMAD
R/O H.NO. 1485, PAHARI RAJAN,
BAZAR CHITLI QABAR, DELHI.
......PLAINTIFF
VERSUS
MOHD. MUSSA S/O MOHD. YUSUF
R/O H.NO. 1488, PAHARI RAJAN,
BAZAR CHITLI QABAR, DELHI.
.....DEFENDANT
Date of Institution: 29.10.2011
Reserved for Judgment: 08.10.2013
Date of decision: 10.10.2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTION ON BEHALF OF
THE PLAINTIFF
JUDGMENT:
1. This is a suit filed by plaintiff for permanent and mandatory injunction. Briefly stated facts of the case are that premises no. 1485, Pahari Rajan, Bazar Chitli Qabar, Delhi110006 (hereinafter be called as suit property) consisting of first, second and third floor was allotted by Slum and JJ department of MCD and plaintiff is residing therein for last about 29 years. P.No. 1 Of 19 : 2: Suit property is more than 100 years old and had been in possession of ancestress of husband of plaintiff. Husband of plaintiff expired on 14.04.1993. Defendant is residing in the neighbourhood in the adjacent property. It is further alleged by the plaintiff that there is a drainage water pipe coming from the side of defendant damaging house of the plaintiff for last several years. As and when plaintiff requested defendant to repair the drainage water pipe line, he used to misbehave with plaintiff. It is also averred by plaintiff that there is only one partition wall between the premises of second floor of the defendant and plaintiff. Defendant in the month of January, 2010 forcibly opened a gate as well as window in the said wall on second floor and encroached some part of the roof of second floor of the plaintiff. When plaintiff and her family members objected to it, defendant assured that he will close the said door and window in near future or as and when the plaintiff raises constructions in the said portion. At that time, defendant vacated the portion of the roof of second floor of plaintiff but did not close the said door and window as specifically shown as Mark A and Mark B in the site plan. On 23.01.2011 at about 2.30 pm when plaintiff was alone at her house alongwith her younger son, defendant forcibly entered into the portion of plaintiff through the said gate and tried to P.No. 2 Of 19 : 3: forcibly remove the almirah on the gate. When plaintiff resisted this illegal act of defendant, he abused and misbehaved with plaintiff. Again on 19.07.2011 defendant and his wife again tried to trespass and take forcible possession of the room shown in red colour in the site plan at the second floor. Hence, the present suit thereby restraining the defendant etc. from entering in the room and not to trespass on the third floor of the suit property in the portion shown in the red colour in the site plan through Mark A and B in the suit property. Plaintiff has also prayed for relief for mandatory injunction that defendant be also directed to repair his drainage pipeline coming in the premises of plaintiff and also to close the gate and window shown at Mark A and Mark B in the site plan of the suit property or in alternative plaintiff is ready to bear the expenses to close the said door and window.
2. Defendant filed written statement submitting that the plaintiff has no right, title or interest in the third floor portion of suit property and the room on the third floor is not owned, possessed or used by plaintiff. Defendant who is residing in the adjoining property bearing no. 1488 has been in continuance physical possession of the said third floor portion of suit property for the last 40 years and he has a door and window of his house P.No. 3 Of 19 : 4: opening upon the third floor portion of the suit property where he had constructed a room which he has been using alongwith property no. 1488. In the garb of permanent injunction, plaintiff is seeking relief of possession on which she has not paid court fees. JJ department of MCD is not made party to the present suit. Third floor of the suit premises was not allotted to the husband of the plaintiff. There is no drainage water coming from the side of the defendant allegedly damaging property of plaintiff. Rest of the case of plaintiff has been denied being wrong and incorrect.
3. On the basis of pleadings of parties, my learned Predecessor has framed following issues for trial:
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the present suit is without any cause of action? OPD
3. Whether the slum and JJ department is a necessary party? OPD
4. Whether the defendants are in possession of third floor of the suit property bearing no. 1485?
5. Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD
6. Whether the plaintiff is in possession of first, second and third floor of the suit property? OPP
7. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed ? OPP
8. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP.
9. Relief.
P.No. 4 Of 19 : 5:
4. Plaintiff in support of her case has examined herself as PW1 and tendered her affidavit in evidence Ex. PW1/1 bearing her signatures at point A and B. She has relied upon the documents Ex. PW1/1 (site plan), Mark A photocopy of ration card of husband of the plaintiff, Ex. PW1/2 photocopy of ration card dated 17.07.2008 (OSR), Ex. PW1/3 copy of election Icard (OSR), Mark B photocopy of electricity bill (OSR), Ex. PW1/5 copy of letter of Slum & JJ department of MCD dated 12.08.2002 (OSR), Ex. PW1/6 the receipt of deposit of Rs. 2000/ dated 12.08.2002, Mark Ccomplaint dated 16.01.2010 , Mark DComplaint dated 20.07.2011 , MarkE complaint dated 16.08.2011 , Ex. PW1/7 photocopy of Icard of Smt. Rehmatbi (grandmother in law of the plaintiff)(OSR), Mark Fphotocopy of ration card dated 01.01.1988 of Sh. Gulzar Ahmad, husband of the plaintiff, Ex. PW1/8 the photocopy of passport of plaintiff (OSR), Ex. PW1/9 photocopy of gas connection receipt (OSR), Ex. PW1/10 Photocopy of delivery voucher dated 06.03.1995 (OSR), Ex. PW1/5 copy of demand notice issued by Slum & JJ department dated 12.08.2002 (OSR), Ex. PW1/6 copy of deposit receipt dated 12.08.2002(OSR). Ex. PW1/11Copy of credit voucher dated 03.01.2005(OSR), copy of letter P.No. 5 Of 19 : 6: dated 19.08.2004 Ex. PW1/12 (OSR), copy of credit voucher dated 19.08.2004 Ex. PW1/13 (OSR), copy of telephone bill dated 04.01.2006Ex. PW1/14, copy of electricity bill Ex. PW1/15 (OSR), order of SDM, Dayaganj dated 11.04.2001Ex. PW1/16 (OSR), copy of death certificate of husband of the plaintiff Ex. PW1/17 (OSR), another copy of death certificate of husband of plaintiff is Ex. PW1/18 (OSR).
5. On the other hand, defendant examined himself as DW1 and tendered his affidavit in evidence Ex. DW1/A bearing his signatures at point A and B.
6. Defendant also examined DW2 Mohd Salman whose affidavit is Ex. DW2/1 bearing his signatures at point A and B.
7. I have heard learned counsel for plaintiff, learned counsel for defendant and have gone carefully gone through the record.
8. My issuewise finding is as follows:
ISSUE No. 1 and 2
Whether the plaintiff has no locus standi to file the present suit? OPD Whether the present suit is without any cause of action? OPD Both these issues are taken up together as they are interconnected P.No. 6 Of 19 : 7: and interlinked. Onus to prove both these issues was on the defendant. Case of the plaintiff is that she is the owner and reside in suit property, whereas defendant reside in adjacent property no. 1488. The defendant from his property no. 1488 has opened a door and a window on the second floor towards the property of the plaintiff which has led the plaintiff to file the present suit. On the other hand, it is the case of defendant that the said door and window exist as it is for the last forty years. Plaintiff in favour of her case that she is the owner and reside in the suit property has filed various documents on record as also the complaints lodged with the police to show that the defendant has opened door and window towards the property of the plaintiff on the second floor. Plaintiff has also alleged rainwater drainage pipe coming from the side of defendant towards her property causing damage to the suit property. Except by taking the objection no cause of action or no locus standi of the plaintiff to file the present suit, neither in the written statement nor his affidavit in evidence or even by way of cross examination of PW1, defendant has not been able to prove as to how no cause of action ever arose in favour of the plaintiff and how the plaintiff has no locus standi. Admittedly plaintiff reside in the suit property. Accordingly, both these issues are decided P.No. 7 Of 19 : 8: against the defendant and in favour of plaintiff.
9. ISSUE NO. 3
Whether the slum and JJ department is a necessary party? OPD Onus to prove this issue was on defendant. This is the case of both the parties that the suit property as well as the property of the defendant has been allotted to them by Slum & JJ department of MCD. A careful perusal of plaint of the plaintiff reveals that no relief has been claimed by the plaintiff against the Slum & JJ department. The dispute between the plaintiff and the defendant is with regard to opening of window and door on the second floor by the defendant towards the property of the plaintiff. It is not like that the present suit could not have been decided in the absence of Slum & JJ department as a necessary party. Since, no relief claimed by the plaintiff against said Slum & JJ department, it is held that it is not a necessary party or proper party to the present suit. This suit is decided against the defendant. 10. ISSUE No. 4
Whether the defendants are in possession of third floor of the suit property bearing no. 1485?
Throughout case of the plaintiff is only with regard to the P.No. 8 Of 19 : 9: dispute on the second floor of the suit property i.e. 1485. Amazingly, the defendant has filed his written statement talking only about the third floor. In the written statement defendant talks about plaintiff having no locus standi to file the present suit as she has no right, title, interest in the third floor portion. Further, the defendant has averred in the written statement that he reside in the adjoining property bearing no. 1488 and has been in continuance physical possession of the third floor of property no. 1485 for the last forty years and he has a door and window of his said house opening upon the third floor portion of 1485 and he had got constructed room on the said third floor of 1485 since decades earlier and has been using the said third floor alongwith property no. 1488. The gate and the window opening on the said third floor are there since last 40 years and now the plaintiff with malafide intention to grab third floor has filed this false and frivolous suit. Similar is the affidavit of defendant as DW1 talking only about third floor. Whereas case of the plaintiff is with regard to second floor as aforesaid.
11. Defendant in support of his case examined himself as DW1 and tendered his affidavit in Ex. DW1/A. He has been crossexamined by learned counsel for the plaintiff. In his crossexamination, he admits possession of the P.No. 9 Of 19 : 10 : plaintiff in the suit property but has volunteered that the kitchen measuring 6 X 9 feet is in his possession. This part of deposition of DW1 is entirely alien to the written statement of the defendant where he states that he is in possession of one room on the third floor of property no. 1485 (suit property). DW1 further admitted that except the kitchen measuring 6X9 feet which is in his possession, entire property no. 1485 from bottom to vertical end except ground floor is in possession of plaintiff. He further deposed that he is in possession of second floor in property no. 1488. He further deposed that dispute is with regard to second floor and not the third floor. Defendant has not amended his written statement. He did not have any documentary proof of being owner of area 6 X 9 feet where the kitchen is built up. Defendant is a tenant of DDA in property no. 1488. Here, DW1 defendant deposed that there is already existing door/entrance as access to his kitchen in property no. 1485 for the last 2025 years on the second floor. It is pertinent to mention here that in his written statement the defendant states that he is in possession of disputed portion for the last forty years. A new thing has come up in further cross examination of DW1 when he states that plaintiff later on came in possession of disputed portion shown in red colour in site plan Ex. PW1/1 P.No. 10 Of 19 : 11 : and had taken Rs. 20,000/ from him for repairing said portion for which DW1 had made complaint to DDA. This fact is also not mentioned in the written statement of the defendant. In his further crossexamination defendant has deposed site plan was supplied to him whereas in the written statement it is mentioned that no site plan has been supplied to the defendant. DW1 further deposed that property no. 1485 and 1488 are separate from third floor by way of separate wall. It is correct that on the second floor wall between 1485 and 1488 is common. Prior to that there was no door and window. It is correct that earlier the rain water used to go in the portion of the plaintiff as she did not allow DW1 to repair the property. In his further cross examination, DW1 admitted that third floor of property no. 1485 is in possession of the plaintiff.
In view of this deposition of DW1, the whole written statement as well as his affidavit in evidence which is only with regard to third floor of property no. 1485 allegedly in possession of the plaintiff, goes to the wind. From the testimony of defendant as DW1 himself, particularly his crossexamination, it stands proved that defendant is not in possession of third floor of the suit property bearing no. 1485. it is pertinent to note herein that this was in fact not the controversy between the parties. This is issue is accordingly decided P.No. 11 Of 19 : 12 : against the defendant.
12. ISSUE No. 5 and 6
Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD Whether the plaintiff is in possession of first, second and third floor of the suit property? OPP Both these issues are taken up together as they are interlinked. Plaintiff has filed present suit for permanent and mandatory injunction praying for issuance of directions to the defendant to close the window and door as shown in red colour in the site plan Ex. PW1/1, opened on the second floor towards the suit property i.e. 1485. Admittedly, plaintiff is in possession of the suit property. Defendant in his cross examination admitted that plaintiff is in possession of entire suit property from bottom to vertical end except ground floor. The written statement and the affidavit in evidence of DW1 are waste piece of paper as they do not at all talk about the second floor which is the subject matter in the present suit. They only talk about third floor of the suit property to be in possession of the defendant. This was never an issue in the present case. Moreover, the defendant himself in his cross examination has admitted that plaintiff is in possession of third floor of the P.No. 12 Of 19 : 13 : suit property. Since, admittedly, plaintiff is in possession of entire suit property, she was not required to pay court fees on relief of possession as wrongly argued by learned counsel for the defendant. The case of the plaintiff is also not of seeking possession of the second floor or third floor. She is already in possession of the same. Plaintiff is seeking only relief of mandatory injunction directing the defendant to close the window and the door opened on the second floor from the side of property no. 1488 towards property of plaintiff, No. 1485. For the purpose of mandatory injunction the suit is properly valued. In view of the admission of the defendant himself in cross examination that plaintiff is in possession of the entire suit property form bottom to vertical end except the ground floor and his further admission that the third floor is in possession of the plaintiff. Both these issues are accordingly decided against the defendant and in favour of plaintiff.
13. ISSUE no. 7 and 8 Whether the plaintiff is entitled to a decree of permanent injunction, as prayed ? OPP Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP.
Both these issues are taken up together as they are P.No. 13 Of 19 : 14 : interconnected. Onus to prove both these issues was on the plaintiff. Plaintiff in support of her case rely upon various documents like Ex. PW1/1 (site plan), Mark A photocopy of ration card of husband of the plaintiff, Ex. PW1/2 photocopy of ration card dated 17.07.2008 (OSR), Ex. PW1/3 copy of election Icard (OSR), Mark B photocopy of electricity bill (OSR), Ex. PW1/5 copy of letter of Slum & JJ department of MCD dated 12.08.2002 (OSR), Ex. PW1/6 the receipt of deposit of Rs. 2000/ dated 12.08.2002, Mark C complaint dated 16.01.2010 , Mark DComplaint dated 20.07.2011 , MarkE complaint dated 16.08.2011 , Ex. PW1/7 photocopy of Icard of Smt. Rehmatbi (grandmother in law of the plaintiff)(OSR), Mark Fphotocopy of ration card dated 01.01.1988 of Sh. Gulzar Ahmad, husband of the plaintiff, Ex. PW1/8 the photocopy of passport of plaintiff (OSR), Ex. PW1/9 photocopy of gas connection receipt (OSR), Ex. PW1/10 Photocopy of delivery voucher dated 06.03.1995 (OSR), Ex. PW1/5 copy of demand notice issued by Slum & JJ department dated 12.08.2002 (OSR), Ex. PW1/6 copy of deposit receipt dated 12.08.2002(OSR). Ex. PW1/11Copy of credit voucher dated 03.01.2005(OSR), copy of letter dated 19.08.2004 Ex. PW1/12 (OSR), copy of credit voucher dated 19.08.2004 Ex. PW1/13 (OSR), copy of telephone bill P.No. 14 Of 19 : 15 : dated 04.01.2006Ex. PW1/14, copy of electricity bill Ex. PW1/15 (OSR), order of SDM, Dayaganj dated 11.04.2001Ex. PW1/16 (OSR), copy of death certificate of husband of the plaintiff Ex. PW1/17 (OSR), another copy of death certificate of husband of plaintiff is Ex. PW1/18 (OSR). Plaintiff has been cross examined by learned counsel for defendant. During the course of arguments learned counsel defendant had pointed out that the plaintiff had no documentary prove to show the measurement/description of proeprty which was allotted to Gulam i.e. dadiyasasur of the plaintiff. Plaintiff had volunteered that she had got the suit property transferred in her name in the year 1995. She had proved on record transfer letter Ex. P1/5 by producing original before the court. Whole of the property which was allotted to Gulam has been got allotted/transfered by the plaintiff in her name. Though it is correct that in none of these documents the area of the suit property is mentioned. It is an admitted proposition that plaintiff is in possession of the suit property since her marriage. PW1 admitted that the wall separating the properties 1488 and 1485 abut each other. The plaintiff has volunteered that defendant broke down the wall and has opened a gate towards her premises on the second floor and have entered in her portion in January 2010. On the P.No. 15 Of 19 : 16 : other hand, defendant examined himself as also DW2 Salman who is in relation to defendant. He also deposed that the dispute between the parties is for third floor with regard to wall on the said third floor. DW2 also deposes that the wall is common from the ground floor to third floor. DW2 further deposes that the disputed portion measures about 6 X 8.75 ft at third floor. Whereas, the defendant as DW1 deposes that area is 6 x 9 feet. Admittedly, no site plan has been filed by the defendant with regard to this submission. DW2 has deposed to the extent that he is aware of the measurement of the disputed portion as there had arisen an event when the same was to be constructed and it was measured for which plaintiff had taken Rs.20,000/ from the defendant in his presence, but he did not remember the date when Rs.20,000/ had been taken by the plaintiff, but he had not stated this fact to the counsel for the defendant at the time of preparation of his affidavit. It is very much pertinent to mention here that this fact of giving Rs.20,000/ by the defendant to the plaintiff is neither mentioned in the written statement, nor in the affidavit of either of the defendant witnesses. Both the DWs have stated this fact, only in their cross examination. Fact to be seen is that affidavit in evidence of DW2 has been filed on record after cross examination of P.No. 16 Of 19 : 17 : defendantDW1, even then this fact of Rs.20,000/has not been incorporated in his affidavit. Whole affidavit of DW1 and DW2 is only with regard to the third floor, and it is only in their respective cross examinations that these DWs depose about the second floor. There is gross indiscrepancies and consistentcies in the depositions of DWs whereas, the deposition of the plaintiff as his own witness as PW1 is quite consistent to her plaint, duly supported by the documents to prove that she is in possession of the suit property. Defendant as DW1 has further deposed that prior there was no door and window and that it is correct that earlier the rain water used to go in the portion of the plaintiff as she did not allow the defendant to repair the property. DW1 further deposed that third floor of suit property is in possession of the plaintiff, but volunteered that she has illegally constructed after encroaching upon his portion. Third floor of any of the property is not in question in the present case, nor the defendant has filed even a single piece of paper in support of his case as to how he has any right or title in the second floor of the suit property, nor any site plan has been filed by the defendant in support of his contentions.
14. The law of evidence in civil cases is based on principle of P.No. 17 Of 19 : 18 : preponderance of probabilities. In the present case, the preponderance of probabilities tilt in favour of the plaintiff. Defendant as well as DW2 has admitted that plaintiff is in possession of suit property. DW1 has admitted even to the extent that plaintiff is in possession of suit property from bottom to vertical end except the ground floor. DW1 has further admitted that rain water used to go to the premises of the plaintiff. It is further very much pertinent to mention that how one can be in possession or can have any right in the adjacent property from between it, particularly, when he has no proof to prove that he has any such right or title in such adjacent property. Therefore, these issues are accordingly decided in favour of plaintiff and against defendant.
15. RELIEF In view of my discussions on the issues hereinabove, present suit is hereby decreed and a decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendant, his wife, his family members, associates, brother, attorneys, legal heirs etc from entering into the room on the second floor and not to tress pass therein, situated in the suit property No. 1485, Pahari Raja, Bazar Chitli Qabar, Delhi, more specifically shown in red P.No. 18 Of 19 : 19 : colour at Mark A in the site plan Ex. PW1/1.
Under the circumstances, decree of mandatory injunction is also passed in favour of the plaintiff and against the defendant and the defendant is directed to close the gate and window at his own expenses more specifically shown as Mark A and Mark B as shown in site plan Ex. PW1/1 in the partition wall of second floor of suit property No. 1485, Pahari Rajan, Bazar Chitli Qabar, Delhi within 90 days from today, failing which, the plaintiff shall be at liberty to get the said gate and window closed at her own expenses.
Further decree of mandatory injunction is also passed in favour of the plaintiff and against the defendant and the defendant is directed to repair his drainage pipe line leading towards the suit property.
Under these circumstances, the parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 10th October, 2013 (KISHOR KUMAR) Civil Judge12/Central/THC Delhi P.No. 19 Of 19