Delhi District Court
Sh. Bishan Swaroop S/O Late Sh. Jialal vs Sh. Trilok Chand S/O Late Sh. Sube Ram on 31 May, 2013
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 378/10
(MEMO OF PARTIES IN THE MAIN SUIT I.E FIRST SUIT)
Sh. Bishan Swaroop S/o Late Sh. Jialal,
R/o H. No. 17D, Basant Gaon,
New Delhi57.
.............Plaintiff
Versus
1. Sh. Trilok Chand S/o Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
2. Sh. Ved Prakash S/o of Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
3. Sh. Krishan S/o Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
4. Sh. Har Lal S/o Late Sh. Pt. Sehra,
R/o H. No. 17, Basant Gaon,
New Delhi57.
.............Defendants
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 1/44
(MEMO OF PARTIES IN THE SECOND SUIT)
Suit No. 359/06
Sh. Har Lal S/o Sh. Pt. Sehra,
R/o H. No. 17, Basant Gaon,
New Delhi57.
..........Plaintiff
Vs.
1. Sh. Trilok Chand S/o Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
2. Sh. Ved Prakash S/o of Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
3. Sh. Krishan S/o Late Sh. Sube Ram,
R/o H. No. 17, Basant Gaon,
New Delhi57.
4. Sh. Bishan Swaroop S/o Sh. Jai Lal,
R/o H. No. 17B, Basant Gaon,
New Delhi57.
5. Sh. Genda Lal S/o Sh. Jai Lal,
R/o H. No. 17B, Basant Gaon,
New Delhi.
6. Delhi Development Authority
(service to be effected through Vice Chairman)
Vikas Sadan, I.N.A,
New Delhi.
.............Defendants
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 2/44
(MEMO OF PARTIES IN THE THIRD SUIT)
360/06
Sh. Trilok Chand S/o Late Sh. Sube Ram Sharma,
R/o H. No. 17, Village Basant Nagar,
New Delhi57.
..........Plaintiff
Vs.
1. Sh. Har Lal S/o Late Sh. Pt. Sehra,
R/o H. No. 17, Basant Gaon,
New Delhi57.
2. Sh. Bishan Swaroop S/o Sh. Jai Lal,
R/o H. No. 17B, Basant Gaon,
New Delhi57.
3. Sh. Genda Lal S/o Jai Lal,
R/o H. No. 17, Basant Gaon,
New Delhi57.
4. Sh. Goverdhan Dass S/o Sh. Har Lal,
R/o H. No. 17, Basant Gaon,
New Delhi57.
5. Sh. Het Ram S/o Sh. Har Lal,
R/o H. No. 17, Basant Gaon,
New Delhi57.
6. Sh. Upender Dutt S/o Sh. Genda Lal,
R/o 17, Village Basant Gaon,
New Delhi.
.............Defendants
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 3/44
Date of filing : 21.12.1994
Date on which order has been reserved: 30.05.2013
Date of pronouncement of judgment : 31.05.2013
JUDGMENT
1. By this consolidated judgment I am disposing of three cases as mentioned above as all the three matters have been consolidated vide order dated 22.08.2005 for the purpose of trial and evidence has been recorded only in the main suit. The order dated 22.08.2005 runs as follows: "All the suits have been filed by the same parties with respect to the same property alleging unauthorized construction by each other. In view of this, all the suit No. 433/96, 434/96, 432/96 and 62/97/95 are consolidated. The suit titled as Bishan Swaroop Vs. Trilok Chand bearing Suit No. 433/96 is the previously instituted suit which shall be treated as the main suit."
2. The common facts of the case are as follows: The suit property is an ancestral property and the grandfather of the plaintiff died approximately 30 years back intestate. The following is the pedigari of the family parties: |Jai Lal Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 4/44 ___________________|________________________ Genda Lal Kaushalya Devi Promila Bisan Swaroop | | Pt.Sehra |Har Lal _______________|____________________________ Goverdhan Het Ram Vir Narain Ashok | | |Sube Ram _________________|___________________________ Ved Prakash Tirlok Chand Krishan Ghogri(D) The total property of Late Pt. Sehra is spread over 800 Sq. Yards approximate with old construction, 1200 Sq. Yards approximate, gher and the same is distributed between the parties on mutual consent and the parties were living peacefully since long in their respective shares. Thereafter, LRs of Late Pt. Sehra came into possession of the adjacent plot of Gaon Shamlat Sabha which has been shown in green color in the site plan, measuring 280 Sq. Yards.
3. The basic dispute is between LRs of Sh. Jai Lal (i.e Sh. Bishan Swaroop and Sh. Genda Lal) and Sh. Har Lal on one had and LRs of Sh. Sube Ram (i.e Sh. Trilok Chand, Sh. Ved Prakash and Sh. Krishan). Vide order dated Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 5/44 22.08.2005 the suits were consolidated.
3.1. Son of Jai Lal i.e Sh. Bishan Swaroop has filed suit for permanent injunction against LRs of Sh. Sube Ram (i.e defendant No. 1 to 3) and defendant No. 4/Sh. Har Lal has been made as a proforma party. This suit is treated as main suit.
3.2. Sh. Har Lal has filed suit for permanent and mandatory injunction against the LRs of Sh. Sube Ram (i.e defendant no. 1 to 3) and LRs of Sh. Jai Lal (i.e plaintiff in main suit and his brother) have been made proforma parties. Considering the date of institution i.e 23.03.1995, the same is referred as suit No.
2. 3.3. The LRs of Sh. Sube Ram (i.e defendant no. 1 to 3 in above two suits) have filed suit for permanent injunction against LRs of Sh. Jai Lal (i.e plaintiff in main suit and defendant no. 4 and 5 in second suit) and against Sh. Har Lal (i.e defendant No. 4 in main suit and plaintiff in second suit). Considering the date of institution i.e 01.05.1995, the same is referred as suit No.
3.
4. PLEADINGS IN THE MAIN SUIT: 4.1 Plaintiff has filed the present suit, to restrain the defendants permanently from constructing or raising any construction over the land belongs to the plaintiff bearing H. No. 17, Basant Gaon, New Delhi57, more specifically Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 6/44 shown in red color in the site plan attached.
4.2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiff is residing at H. NO. 17D, Basant Gaon, New Delhi false in Khasra No. 1879, Ward No. 33/10, New Delhi57 (hereinafter referred the suit property) and he is residing there in a joint family. The defendants had constructed their respective vacant plot in 1977 by Sh. Har Lal and recently the LRs of Sh. Sube Ram i.e the defendant No. 1 to 3, respectively. The portion of the plaintiff falls in between the above stated construction and the defendants are trying to grab the portion of the plaintiff more specifically shown in red color in the site plan attached without assigning any sufficient cause inspite of protest by the plaintiff and his family members.
The son of Sh. Genda Lal i.e Upendra Dutt Gaur (nephew of the plaintiff) lodged a police report regarding the above stated dispute and succeeded to stop the defendants from constructing on the land of the plaintiff. The plaintiff is also authorized to file this suit on behalf of Sh. Genda Lal also. The defendants again gave threat on 20.12.1994 that they will construct on the portion of the plaintiff and nobody can stop them from doing the same. Hence, the present suit has been filed for the above mentioned relief.
4.3. Defendant No. 1 to 3's Version: In the WS, defendant No. 1 to 3 have denied all the claims of the plaintiff and have taken the following stands:
(i) That There is no cause of action for the present suit and the same Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 7/44 has been field as a black mailing tactics to pressurize the defendant No. 1 to 3 and compel them to close their entry opening on the western side of their property in order to grab the common land and common passage land which belongs to the Delhi Development Authority.
(ii) That the suit is not maintainable in view of the Section 38 and 41 of the Specific Relief Act. The portion shown green in site plan filed by the plaintiff, the defendant No. 1 to 3 have not been partitioned. The plaintiff has alternative remedy of filing a suit for partition.
(iii) That the plaintiff has got no locus standi to file the present on behalf of Sh. Genda Lal, his brother. The Delhi Development Authority is a necessary and proper party in this case.
(iv) That there is no dispute as such between the plaintiff and the defendant No. 1 to 3. Whatever problems arose after the defendant No. 1 started construction in his own property, was with Sh. Genda Lal and the defendant no. 1 acknowledged the fact that he had raised construction on a piece of land of only 4'' which pertains to the share of Sh. Genda Lal. As regards that, defendant No. 1 entered into a compromise with Sh. Genda Lal on 18.12.1994 and a writing was also executed by which the defendant No. 1 agreed that Sh. Genda Lal could raise construction on the wall of the defendant No. 1 whenever he raised the construction on his property along with wall of the defendant No. 1.
It is admitted that the plaintiff is occupying a portion of the property No. 17, Village Basant, which adjoins the property of the defendants. The said Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 8/44 portion has been rented out by the plaintiff to some tenants. The plaintiff has failed to indicate and pin point the exact location and dimensions of the property as also the alleged distributed property between the parties, the date and year of distribution etc. Late Pt. Sehra, grandfather of the plaintiff and the defendant No. 1 to 3 had in his occupation a piece of land measuring about 900 Sq. Yards comprised in plot No. 17. He had also another residential property know as No. 16 in the said village. After his death, his three sons partitioned the said plot. Similarly H. NO. 16 was also partitioned of said land some time in the year 197071 and thereafter all the three of them had one third portion each out of the said plot of land. The father of the defendant no. 1 to 3, Late Sh. Sube Ram raised a construction of two rooms, veranda and kothries in his portion of the property No. 17. On some time in March, 1972 leaving a portion on the western side entry open and unconstructed. Thereafter Sh. Jai lal, the father of the plaintiff, constructed a hall in his portion of the property some time in 1973 and subsequently more construction were raised by his sons after his death in the said portion of the property in and around the same i.e 1973. Sh. Har lal also raised construction over his portion of the property. All the parties were living peacefully in their respective portions of the property.
Further, the defendant No. 1 to 3 partitioned the one third share which fall to the share of their father in the year 1980. The old construction in the said portion which was made by the father of the defendant No. 1 to 3, fall to the share of Sh. Trilok Chand, defendant No. 1. The roof of the said portion was Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 9/44 made of karris and stone stabs and there was a lot of leakage of water in the rooms, particularly in rainy season. In October, 1994, the defendant No.1 decided to replace his said roof with a RCC roof and make some more construction, the entire portion which fall to his share and the process of construction in his portion started in October, 1994 itself. The said portion of the property had an entry right from the beginning from the wester side opening into a common passage which is the DDA land. The plaintiff has not stated which portion of the property was constructed by Sh. Har Lal in the year 1977. In the open portion of the defendant property towards the western side, which was lying vacant and un constructed since the property No. 17 was particularly in the year 1970. The defendants raised wall of about 8 ft, height some time in the year 1991 without any objection from anybody. It was done for security reasons as there were at least two openings of the defendant No. 1 to 3 property towards the said portion. The said wall is shown within the points A and B. The land measuring about 280 Sq. Yards bounded between points A, B, C and D (shown as green in the site plan) falls to the share of the father of the plaintiff, defendant No. 4 and the defendant No. 1 to 3, as cosharer of the gaon Shamlat land. In a portion of this plot, the defendant No. 4/Sh. Har Lal raised construction in about 1984 by raising a huge residential complex which is three storeyed. The said plot is not formally divided or partitioned between the parties. The remaining area of the said plot is still lying vacant. The defendant No. 1 to 3 have a right to the extent of one third share in the said plot. During the times of Late Pt. Sehra, this land was not in Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 10/44 occupation of the family of the parties, so the question of Pt. Sehra acquiring this land does not arise. It appears that the plaintiff and the defendant No. 4 have become dishonest and have colluded together in order to grab the entire plot to the exclusion of the defendant No. 1 to 3 and also the passage of the land of the DDA.
In October, 1994, when the defendant No. 1 started construction in his portion, the plaintiff and the defendant No. 4 approached him and the other defendants and asked them to completely close the entry in their property from the western side (from the side of the plot measuring 200 Sq. Yards) to grab the entire plot and common passage of about 8 ft width which is in fact/DDA land. The defendant No. 4 Sh. Har Lal has also encroached upon the land and raised illegal construction of a latrine in the common passage leading to the plot in question and the property of the defendant no. 1 to 3. The parties have an oral understanding that the defendant no. 1 to 3 will take the 1/3rd portion in the middle of their land shown in green although it has not been demarcated.
In October, 1994, defendant No. 1 had refused to close the entry of his property towards the western side and thus earned the wrath and displeasure of the plaintiff and the defendant No. 4. The present suit is the result of conspiracy hatched by plaintiff and the defendant No. 4. The defendant No. 1 has already raised partial construction in his property and has laid a shuttering for the purpose of RCC lintel and has already invested considerable sum of money in the process. The defendant No. 1 is raising construction of portion of Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 11/44 the property No. 17, which has been in his occupation and of the defendant No. 1 to 3 in earlier in occupation of their fat her of portion of plot/property No. 17 in the year 1970.
4.4. Defendant No. 4's Version: In the WS, defendant No. 4 has admitted all the claims of the plaintiff stating that the defendant No. 4 being the son of Late Pt. Sehra has also got 1/3rd share in the aforesaid property falling in Khasra No. 1879, Ward No. 33/10, New Delhi. The defendant No. 1 to 3 who are successors in interest of late Sh. Sube Ram(i.e his brother) tried to encroach upon the share of the plaintiff who is successor in interest of Late Sh. Jai Lal, another brother of the defendant No. 4. The property was by way of mutual settlement, partitioned, but the defendant no. 1 to 3 while making construction over their share tried to encroach upon the share of the plaintiff and also tried to put a gate/opening on their side. The defendant No. 1 to 3 have got their openings/gate right from the beginning since long for the last 45 years. The exact situation of the property has been shown in the site plan annexed with this WS. The defendant no. 4 had made construction over the vacant land by way of tin shed while some of the portion is still lying vacant. The portion belonging to the plaintiff and his brother Sh. Genda Lal as well as of the defendant No. 1 to 3 was lying vacant. However, recently defendant no. 1 to 3 in a bid to construct their portion tried to encroach upon some land of the plaintiff and also tried to open a gate/opening on that side in order to defeat the rights of the plaintiff as well as the defendant No. 4 which Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 12/44 action of defendant No. 1 to 3 are totally illegally and malafide. Police report was lodged by Opender Dutt S/o Sh. Genda Lal.
4.5. Defendant No.5/DDA Version: In the WS, DDA has denied all the claims of the plaintiff stating that no notice u/sec 53B have been served upon the DDA and as such the suit is liable to be dismissed on this short ground alone. The premises in question falls in Khasra No. 33/10, Village Vasant Vihar, New Delhi, which was acquired vide award No. 1879 and has been placed at the disposal of the DDA U/sec 22(1) No. F8(49)63L&H(ii) dated 03.01.1968 and the DDA has further handed over the same to Horticulture Wing of the DDA on 19.06.1971 and the same is under the management and control of the DDA. The plaintiff has no right, title or interest what soever in the land in question. The plaintiff in the guise of the present suit wants to grab the property of the DDA. When the land in question vests in the DDA, neither the plaintiff nor any body else have got any right to raise any construction thereon.
4.6. By way of replication the plaintiff has denied all the claims of the defendant No. 1 to 3 stating that the plaintiff was not told about any compromise from his brother, might be slipped from his mind. However, a compromise was held on 18.12.1994 in writing on pressure from other family members and LRs of Pt. Sehra and the brother of the plaintiff agreed to leave his share of 4'' but the defendants violated the same on the next day and put lintel and pillar of the same portion and the plaintiff left with no option except to lodge FIR on 19.12.1994 Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 13/44 and the said compromise itself became infractuous immediately after its execution. Like the defendants, the plaintiff is having his share in both the properties i.e No. 16 and 17 and plaintiff is living in both the properties and the plaintiff has given the correct address. The property is an ancestral property and the partitioned was took place orally long back and the same was not measured with scales at any time. The defendant No. 1 to 3 are having 1/3rd share like of plaintiff and his brothers but the same was not done. The defendants after filing the present suit, has covered even the common passage/gali from two sides and himself closed his entry from the side which belongs to the plaintiff's share and grabbed the land of the plaintiff's share.
Further the LRs of Late Sh. Sube Ram have constructed and raised construction recently. The defendant No. 4 had constructed his own share. The answering defendant tries to confuse the court, some times they said that the suit property is Gaon Shamlat land and some time that the same belongs to the DDA. The defendants as well as plaintiff is having 1/3rd share each in the property but the defendants encroaching upon the share which falls to the plaintiff and plaintiff had left with no option except to file present suit. 4.7. On the basis of pleading and arguments of the parties, vide order dated 15.04.2002, the following issued have been framed:
(i) Whether plaintiff is entitled for the relief of injunction as prayed for? OPP.
(ii) Relief.
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 14/44
5. PLEADINGS/FACTS IN THE SECOND SUIT: 5.1. Plaintiff has filed the present suit for the following reliefs:
(i) For passing a decree for permanent injunction in favour of the plaintiff and against the defendant no. 1 to 3 restraining them from making any construction or laying down the roof over the encroached portion and putting the permanent gate over there at the place shown red in the site plan annexed with the plaint forming part of the property No. 17, Basant Gaon, New Delhi.
(ii) For passing a decree for mandatory injunction in favour of the plaintiff and against the defendant N. 1 to 3 directing them to close down the opening/gate at point D shown blue in the portion marked red in the site plan annexed with the plaint forming part of the property No. 17, Basant Gaon, New Delhi.
5.2. Plaintiff's Version:
In the present suit, plaintiff stated that defendant no. 1 to 3 hwo are successors in interest of Late Sh. Sube Ram had their entry into their house from the front side and they have no right, title or interest to have any access to the the vacant portion of land which fell into the share of the plaintiff and defendant No. 4 and 5. Recently documents No. 1 to 3 started construction over the vacant portion of the land which fell into their share in a bid to construct their portion, they encroached upon the portion of the land measuring about 4' X 39' which Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 15/44 belong to defendant No. 4 and 5 and also tried to put a gate/opening towards the portion which belonged to the plaintiff so as to make a passage in the land belonging to the plaintiff and defendant No. 4 and 5. Defendant No. 4 and 5 objected to the said illegal action of the defendant no. 1 to 3 but when they were adamant, the defendant No. 4 filed a suit for permanent injunction against the plaintiff as well as defendant No. 1 to 3 which are pending. Thereafter, defendant No. 1 to 3 put the wall encroaching upon the portion of the land belonging to defendant No. 4 and 5 and also put gate over there.
Further, the plaintiff has now come to know that the defendant no. 1 to 3 are constructing a basement portion in the said portion of vacant land in order to let out the same for commercial purpose to some factory owner and they want to give the said accommodation to the proposed tenant with malafide intention to encroach upon the land belonging to plaintiff as well as defendant No. 4 and 5. The action of the defendant no. 1 to 3 are totally illegal, malafide and arbitrary as well as they have no right whatsoever to keep opening towards the land belonging to the plaintiff and no portion of the said land can be used as a passage and the said portion exclusively belongs to the plaintiff as per the oral portion among the plaintiff and the defendants. The defendant no. 1 to 3 have so far only constructed a wall and have kept the opening in the said wall in order to use the same as a gate, but the roof, thereof has not yet been laid and only the shuttering has been placed. If the defendant no. 1 to 3 succeed in their illegal design in laying the roof and keeping the said opening as permanent gate, the Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 16/44 plaintiff shall suffer irreparable loss and injury in as much as the defendants have no right whatsoever to encroach upon the land belonging to the plaintiff. The action of the defendant no. 1 to 3 in opening the gate towards the portion of the land is totally illegal. Hence, the present suit has been filed. 5.3. Defendant No. 1 to 3's Version: In the WS, defendant No. 1 to 3 have denied all the claims of the plaintiff stating that the suit is gross abuse of process of court and a result of conspiracy and collusion between the plaintiff and defendant No. 4 and 5. The defendant No. 4 had earlier filed a suit for injunction for restraining the defendant no. 1 from raising construction in his property. The suit was filed some time in December, 1994 and is pending. The plaintiff in the said suit has not been able to obtain any injunction order against the defendant No. 1 to 3 and having failed to get an injunction in the said suit, has conspired to get the present suit filed by the present plaintiff who is defendant No. 4 in the suit pending. The suit is thus, vexatious, baseless and malafide exercise on the part of the plaintiff. As per the own showing of the plaintiff, he has no concerned whatsoever with the property/land which he claims to be disputed property. The plaintiff is falsely claiming this property as belonging to defendant No. 4 and 5 with whom he is colluding. As far as opening of a gate is concerned, the gate exists in the property of the defendant no. 1 to 3 since decades having been constructed in mid seventies.
5.4. Further, defendant No. 1 to 3 have renarrated all the facts Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 17/44 mentioned by them in the WS filed by them in the main suit. 5.5. Defendant No. 4 and 5 (LRs of Sh. Jai Lal/plaintiff in main suit) have supported the case/claim of the plaintiff.
5.6. Defendant No. 6/DDA has reasserted the averments made by DDA in the main suit.
5.7. On the basis of the pleadings and arguments of the parties, vide order dated 15.04.2002, following issues have been issued:
(i) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?OPP.
(ii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?OPP.
(iii) Relief.
6. PLEADINGS IN THE THIRD SUIT:
6.1. Plaintiff has filed present suit praying that the defendants, their agents, employees and other family members on their behalf or any person acting on their behalf may kindly be restrained from interfering, obstructing the construction work of the house of the plaintiff, shown red in the site plan, attached with this plaint.
6.2. Plaintiff's Version: Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 18/44 In the present suit, plaintiff stated that the plaintiff and defendants are successors in interest of Late Sh. Pt. Sehra, who was the owner and in possession of the property situating in villageBasant Nagar, New Delhi. Besides the said property, a plot of land measuring about 280 Sq. Yards was lying vacant, which was in possession of all the three brothers namely Sh. Jai Lal, Sh. Har Lal and Sh. Sube Ram. This plot of land of 280 Sq. Yards is of Gaon Sabha Land. In the said vacant plot of land of280 Sq. Yards, Sh. Har Lal raised construction of a three storeyed building in one portion of it, while the remaining land came in share of Sh. Jai Lal and Sh. Sube Ram as both these persons died, their respective sons came in active possession of the property. Sh. Har Lal while constructing his building in one portion of the said land, left a passage/approach road of 8 ft, width, as mutually agreed at that time, so that the other portions/shares of the other shareholders i.e sons of Sh. Jai Lal and Sh. Sube Ram may have their access to their respective plots, which would be ascertained after mutual decision in respect to the shares. The passage of 8 ft width has been in use even prior to the construction of building by Sh. Har Lal but after the construction as there was a hindrance in crossing through open land, 8 ft wide passage was specifically left and since then is being used by the plaintiff as well as the defendants and their respective family members since 1984 when Sh. Har Lal constructed his building.
Sons of Late Sh. Sube Ram divided the property in three shares being only three sons who inherited the property and the plaintiff installed a gate Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 19/44 towards the vacant plot facing the gali, and has been using as approach passage to his house. The plaintiff started renovating his house by demolishing the old structure in the month of October/November, 1994, when the construction reached upto the roof level, and in order to lay the roof, the shuttering was put in and the Iron Roads were also laid. When the cemented concrete material was being put, t he defendants came on the roof and started quarreling with the plaintiff, his wife and the mason mason and the laborers. The plaintiff made call to the police and police arrested defendant No. 1, 3, 4 and 6 and the plaintiff under section 107/151 Cr. PC in order to avoid any breach of peace. The defendants have no right to interfere in the construction of house by the plaintiff in his portion which has come in his share after partition of the property among three brothers i.e sons of Late Sh. Sube Ram. On 27th April, 1995, when the plaintiff again started laying the roof of his house by putting cement and concrete, all the defendants again came and threatened the labour and mason. Hence the present suit has been filed.
6.3. Defendant No. 1, 4 and 5's Version: In the WS, the said defendants have denied all the claims of the plaintiff on the ground that the controversy relating to the property in dispute is pending in civil suit, titled as Har Lal Vs. Trilok Chand & Ors. And Bisan Swaroop Vs. Trilok Chand & Ors. It appears that the plaintiff has filed present suit as a counter blast to the suit for injunction filed by Sh. Har Lal and Sh. Bisan Swaroop against the plaintiff in the present suit. The stand taken by the plaintiff Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 20/44 in the present suit is all together different then that taken by him in the WS filed in the suit by Sh. Har Lal and Sh. Bisan Swaroop which are pending disposal. The plaintiff has no right, title or interest in the disputed portion of the land as per his case, the said land belong to Gaon Sabha and that therefore he has no proprietary or otherwise any interest in the said land. In the absence of any legal right in the land, no order whatsoever granting any type of protection to the plaintiff can be passed. Under the garb of seeking injunction against the answering defendants, he is trying to seek a declaration of the ownership of the disputed portion of land which admittedly does not belong to him. Be it as it may be, there has been no gate of the plaintiff in the portion shown red in the site plan and that plaintiff has his independent entry to his portion from the front side in another gali. The plaintiff has wrongly alleged that there has been any gali/passage of 8' which is commonly enjoyed by all the parties.
Further the open land measuring about 44 X 39' also formed part of the estate of Late Pt. Sehra, the predecessor in interest of the parties and that lad also belonged to the three brothers after the death of Pt. Sehra. The said land was also orally partitioned among the three brothers. Defendant no. 1 had constructed a tin shed in the portion of the said open land which fell into his share by the land belonging to Sh. Jai Lal and Sh. Sube Ram was lying vacant. Sh. Jai Lal and Sh. Sube Ram has since died and their sons who are defendants No. 2, 3 , 4 and 6 are occupying their respective portions. The plaintiff has already encroached upon the portion of the land belonging to defendant No. 2 and 3 in a big to make Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 21/44 construction over his portion of land and tried to put a gate/opening towards the portion which belonged to defendant No. 1, 2 and 3 and when it was objected to, the plaintiff along with his gundas associated tried to put pressure on the answering defendants and the defendant No. 1 also filed a suit for injunction which is pending disposal.
6.4. Defendant No. 2's Version: In the WS, defendant No. 2 has denied all the claims of the plaintiff stating that the suit of the plaintiff is not maintainable as two similar cases on the similar grounds and on the same relief is pending. In both the cases the respective plaintiff seeks the relief of restraining the plaintiff of present case to construct anything on the portion belongs to the defendants. The defendant No. 2 got the share from his father Sh. Jail Lal and the same is still not divided between the defendant No. 3 and the defendant No. 2. The plaintiff under the grab of seeking injunctions against the defendants, actually trying to get the relief of declaration of his ownership of the property which actually belongs to the defendant No. 2 along with defendant No. 3. There was no iron gate at the place shown in the site plan attached and the plaintiff also wrongly stated that there has been a gali of 8' which is commonly enjoyed by all the parties.
Further, the said portion was oral and the estate of Late Pt. Sehra also consist of open land measuring about 44 X 39' and defendant No. 1 has constructed a tin she and the land belongs to defendant No. 2, 3 and 6 remain vacant which they inherited from their father. The plaintiff encroached upon the Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 22/44 portion oft he defendant No. 2 and admitted the same in writing. The plaintiff also wants to put the gate on the portion false under the share of the defendant No. 2 and threatened the defendant No. 2 that he will encroach the same by one way or the other. There was no mutual understanding about the passage of 8', the plaintiff wants to grab the portion of the share belongs to the defendant No. 2, and wants to put the gate on his portion. The said portion specifically belongs to the defendant No. 2 and the defendant no. 2 has not divided his share with defendant No. 3. The plaintiff started renovating his portion since November, 1994 but in the grab of renovation plaintiff is trying to grab the portion of the defendant and also tried to put a gate on the side of a land which specifically belongs to the defendant No. 2 and defendant no. 2 already filed a suit against the plaintiff as stated supra. The plaintiff manipulated the local police and lodge a false complaint and defendants were falsely implicated in false case. 6.5. Defendant No. 3 & 6's Version: In the WS, defendant no. 3 and 6 have denied all the claims of the plaintiff on the ground that the suit of the plaintiff is not maintainable as two similar cases on similar ground and on same relief is pending. In both the suits, respective plaintiff seeks restrain orders from making any construction on the suit property. Further, the suit is bad for nonjoinder of party. Gaon Sabha, Vilage Basant Nagar, is the necessary party to the suit. The plaintiff under the grab of seeking injunction against the defendants, actually trying to get the relief of declaration of his ownership of the disputed property which be tried to grab Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 23/44 and not to all belongs to him. There was no gate at the place shown in site plan attached. The said portion was oral and the estate of Late Pt. Sehra also consists of open land measuring about 44 X 39' and defendant No. 1 has constructed a tin shed on the land belongs to defendants and the land belongs to defendant No. 2, 3 and 6 remain vacant which they inherits from their father/grand father Late Sh. Jai Lal S/o Late Pt. Sehra. The plaintiff admittedly encroached upon the portion of defendant No. 2 and 3 and the plaintiff wants to put the gate towards the portion belonging to the defendant no. 3 and 6 and defendant No. 2 and threatened the defendants that he will encroach there portion and being some gondas to meet with his illegal design and defendants left with no option and filed a suit for injunction through defendant No. 2 which is still pending.
Further, there was no mutual understanding of leaving the passage of 8' as stated in this para, the plaintiff wants to encroach upon the share of the defendant No. 3 and 6 as well as of defendant No. 1 and wants to put up the gate on the alleged passage of 8' wide. There is no gali and the said portion specifically belongs to the defendant No. 3 and 6 and the defendant No. 3 and 6 have not divided there respective shares among themselves. The plaintiff started renovating his portion since November, 1994 but in the grab of renovation plaintiff is trying to grab the portion of the defendant No. 3 and 6 and also tried to put a gate on the side of a land which specifically belongs to the defendant No. 3 and 6 and defendant No. 3 and 6 through defendant No. 2 filed a suit against the plaintiff which is still pending. The plaintiff manipulated the local police and Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 24/44 falsely implicated the defendant No. 3 and 6.
6.6. On the basis of pleadings and arguments of the parties, vide order dated 15.04.2002 the following issues were framed:
(i) Whether the plaintiff is entitled for the relief of injunction as prayed for?OPP.
(ii) Relief.
7. At the stage of PE, all the three suits were consolidated vide order dated 22.08.2005 and the evidence was recorded in the main suit (i.e Bishan Swaroop Singh Vs. Trilok Chand & Ors) only.
8. In PE in the main suit, examined himself as PW1 and Sh. Upendere Gaur as PW2. Plaintiff has relied upon the following documents:
(i) The site plan of the suit property is Ex. PW1/1.
9. In defence evidence defendant No. 1 has examined Sh. Tirlok Chand as DW1 and has relied upon following documents which are already exhibited as PW1/DX and Ex. PW1/DX2.
10. Defendant No. 2 and 3 have not lead any evidence.
11. In defence evidence, defendant No. 4 has examined Sh. Het Ram as Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 25/44 D4/W1, Constable Sh. Jag Ram as D4/W1 and HC Sh. Surjit Singh as D4/W1. Defendant No. 4 has relied upon the following documents:_
(i) Site plan of the suit property which is Ex. DW4/1.
(ii) Copy of kalandra which is mark X.
(iii) Copy of police complaint dated 26.02.1995 is Ex. DW4/2.
(iv) Copy of the destruction certificate regarding weeded out of complaint dated 25.02.1995 is Ex. D4W3/W3.
12. Defendant No. 5/DDA has not lead any evidence.
13. During cross examination, PW1 deposed that 13.1. "............It is correct that the site plan filed by the defendant is correct as per site and show the correct position of suit property. The same is Ex. PW1/DX. It is correct that the site plan fled by me does not depict the correct position of the site. It is correct that the ancestral property of the family is shown between points A1 to A4 in the Ex. PW1/DX. It is correct that Late Sh. Sube Ram, father of defendant No. 1 and 2 raised constructions of two room, veranda and two kotharies in his 1/3rd portion of the ancestral property shown in portion red in Ex. PW1/DX. At that time, the land shown in green color was open land. It is correct that Late Sh. Sube Ram had also built a gate at point X n Ex. PW1/DX. Vol. This area was open at that time. It is correct that the portion marked red and Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 26/44 shown as gali in Ex. PW1/DX is common passage (aam rasta). It may be for the last more than 3540 years. It is wrong to suggest that the gate shown in the site plan Ex. PW1/DX. The land in front of gate X in Ex. PW1/DX belongs to Sh. Genda Lal. I have not brought any document to show that the land in front of gate X in Ex. PW1/DX belongs to Sh. Genda Lal. I can not bring any such document. Vol. This land belongs to our forefather. It came to the share of Sh. Genda Lal after partition. I can not say if the portion between points A5, A9, A10 and A8 in Ex. PW1/DX has been encroached by Sh. Goverdhan S/o Sh. Har Lal. It is correct that we have lodged the litigation against Sh. Tirlok Chand to take control of the open area shown red as gali in Ex. PW1/DX. Vol. The green portion belongs to our family. I do not know if government has acquired the land in Khasra No. 33/10 which is shown in green color in Ex. PW1/DX by award No. 1879 and the same has been placed at disposal of DDA for horticulture purposes. It is correct that Sh. Tirlok Chand was raising construction of his house in December, 1994, a dispute took place between Sh. Genda Lal and Sh. Trilok Chand and police also came to intervene. I have seen the document Ex. PW1/DX2 which is a compromise dated 18.12.1994 and is signed by me brother Sh. Genda Lal Sharma. The contents of this compromise Ex. PW1/DX2 are correct................."
13.2. Further, plaintiff has examined Sh. Upender Gaur i.e son of his brother Sh. Genda Lal, as PW2 and he was duly cross examined and during cross examination he has deposed that Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 27/44 "...........The plan Ex. PW1/1 does not depict the correct situation at the site. The plaint Ex. PW1/DX depicts the correct position on the site. The portion 44 feet X 39 feet referred to in my affidavit is bounded within point A5.I, A1 to A8. The defendant No. 1 while raising construction exceeded his construction by 6 inches. It is correct that the dispute between defendant No. 1 and my father was about covering an area of 5 inches. I have no knowledge about any compromise between my father and defendant No. 1. I have seen the document Ex. PW1/DX2, it bears the signatures of my father Sh. Genda Lal Sharma at pint P. This compromise was entered into on 18.12.1994 between my father and defendant No. 1. As per the said compromise, defendant No. 1 was supposed to leave 4 inches space on his wall to enable my father to raise construction in his property whenever required. However, he did not leave that 4 inches space on the entire portion of the wall. I have no document to show that the portion shown in green color or the portion between points A6, A5.I, A1 & A7 belongs to plaintiff or my father or Sh. Har Lal. It is correct that Ex. PW1/DX2 Har Lal is not a party to it for he has signed it. It is correct that Trilok Chand, defendant No. 1 in terms of said document, Ex. PW1/DX2 has not left 4 inches space in the entire wall but has left the space in 60% of the wall. It is correct that the passage as shown in A1 to A6 in the site plan Ex. PW1/DX is a common passage and defendant no. 1 has no right to put gate on this common passage to block the entry. The entry to the portion of defendant no. 1 is from front side from the gali from A4 to mark Z. The defendant No. 1 has no right Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 28/44 whatsoever from passage A4 to A6 in Ex. PW1/DX. Defendant No. 1 has not obtained any sanction from DDA or MCD for the construction of the house or for construction in the passage. The house of the defendants and the plaintiff are adjacent to each other............."
13.3. On the defendant No. 1 has examined himself as DW1 and he was duly cross examined and during cross examination, he has deposed that "...........The portion marked A1 in the site plan Ex. PW1/DX is occupied by me which is measuring approximately 100 Sq. Yards. In the year 1994, the area in my possession was built which is encircled red in Ex. PW1/DX. It is correct that the exit gate at point E in the site plan Ex. PW1/DX was there in the year 1994. It is correct that plaintiff has 300 Sq. Yards of property which is equivalent to the share of my possession. The portion marked red in the site plan Ex. PW1/DX was repaired by me in the year 2002. It is wrong to suggest that the portion opening from point E is lying unused. Vol. It is a common passage and is being used by everyone. .........
..........It is correct that the complete property was around 2000 Sq. Yards in which my father and other two brothers of my father had equal shares in the said property. It is correct that I was entitled to 1/3rd share in two properties of 2000 Sq. Yards. It is correct that the portions in possession of the three brothers are only one side open. It is correct that from point A4 to mark Z in the site plan Ex. PW1/DX is a passage which leads to my portion in the property. It is wrong to suggest that portion from point A4 to Z is the only passage to reach Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 29/44 in all the portions of other brothers. It is correct that a toilet was existed in the said passage prior to the year 1994. Vol. It was demolished by DDA in the year 2002. The portion mark A7 to A10 in site plan Ex. PW1/DX is a common passage belonging to legal heirs of Sh. Pt. Sehra. It is correct that the gate at point E in site plan Ex. PW1/DX opens in my portion. My room is adjacent to the portion in which the above mentioned gate opens. There is no open space in between the passage and the room. It it wrong to suggest that there is no passage of 8 ft as gali being used by any of the legal heir of Late Pt. Sehra. It is correct that it is in the year 1994, only police was called for dispute over the construction of my property. Sh. Bishan Swaroop claimed that 4 inches of his property was in my possession which I disputed and therefore, the police was called. The water and sewer pipes are running through points A4 to Z in the site plan Ex. PW1/DX. It is correct that I have not filed the copies of the complaint in the court file................"
13.4. Defendant No. 4 has examined himself (Sh. Het Ram) as D4/W1 and he was duly cross examined on behalf of the plaintiff and during cross examination he has deposed that "...........It is correct that the portion mark A1 to Z shown in the site plan Ex. PW1/DX has been illegally encroached by Sh. Trilok Chand. It is correct that the portion which is encroached by Sh. Trilok Chand is belongs to Sh. Bishan Swaroop and Sh. Genda Lal legally as per settlement. Vol. The space of 4 inches over and above the wall has also been encroached by Sh. Trilok Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 30/44 Chand............"
13.5. D4/W1 was duly cross examined on behalf of the defendant No. 1 to 3 and during cross examination, he has deposed that ".............It is correct that it is ancestors' property. It is correct that in 1971, it was partitioned between children of Late Sh. Shera and at that time, the share of land fallen into the portion of Sube Ram was on the Dead End. It is correct that in 1972, Sube Ram raised construction of two rooms, Verandah and two Kotharies in his portion. It is correct that at that time, the passage was left open which is depicted at Point 'E' in Ex. PW1/DX which was common passage and was in use for all. It is correct that in the year 1973, Jai Lal raised construction in his portion and Har Lal also raised construction in the same year...........
.........It is correct that in October, 1994, defendants tried and started to construct with RCC. It is incorrect to suggest that in the year 1988, a piece of land, measuring 280 Sq. Yards bounding between Point 'A1' to 'A10' shown in Green Colour in Site Plan i.e. Ex. PW1/DX fell to the share of father of the plaintiff and defendant No.1 to 4. It is correct that portion shown Green in colour in Ex. PW1/DX has equal share in all inheritors of Pandit Shera. The portion shown Green in colour in Ex.PW1/DX has already been partitioned. There is no DDA passage mark Red from Point 'A7' to 'ZX'. The portion shown as 'A5', 'A8', 'A9', 'A10' belongs to Goverdhan Dass. Goverdhan Dass is my brother. At present, none of the Legal Heirs of Pandit Shera use the passage mark Red from Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 31/44 Point 'A7' to 'ZX'. It is incorrect to suggest that mark Red from Point 'A7' to 'ZX' is used by all Legal Heirs of Pandit Shera. There was no entry at point E in Ex. PW1/DX at the time of dispute between Sh. Genda Lal and Sh. Trilok Chand in 1994. There is no passage from the point XZ in site plan, however, there is only one passage point A4 through gali to reach their portion by defendant No. 1 to 3. There is no passage opening at point E in site plan Ex. PW1/DX since 1972........."
14. Arguments heard. Record perused.
15. A summary of dispute is as follows: 15.1. The parties are residing at the property shown as A1 to A4 in the site plan and the same is an ancestral property of one Pt. Sehra and after his death, same was inherited by his three sons who are fathers of the parties as per pedigari which has been shown above. Later on parties partitioned the property and are living in their respective portions. The admitted site plan is Ex. PW1/DX. There is no dispute that A1 to A4 property was inherited by the parties and the respective portions in possession of the parties have been correctly shown in Ex. PW1/DX between point A1 to A4. Further, the defendant No. 1/Sh. Trilok Chand is in possession of portion shown in red color in the site plan. The portion measuring 280 Sq. Yards shown in green color in Ex. PW1/DX has been taken Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 32/44 by the parties later on.
15.2. During court proceedings on 27.10.1995, parties have given statements and may be reproduced here being relevant to the dispute in hands.
(a) Statement of Sh. Bishan Swaroop S/o Sh. Jai Lal(plaintiff in the main suit) On Oath No formal partition of land comprising of 280 Sq. Yards and as shown in green color in the site plan has taken place, it was a shamlat gaon sabha land and none came from gaon sabha to raise any objection. I claim 1/3rd share out the aforesaid 280 Sq. Yards of the land.
(b) Statement of Sh. Trilok Chand (Defendant No. 1 in the main suit) On SA Pt. Sehra owned the property as shown in the site plan except the portion shown in green and as shown others properties. The site plan is Ex. D1. In the year 1970, the property was partitioned amongst the brother named Sh. Jai Lal, Sh. Har Lal and Sh. Sube Ram. In 1972, my father Sh. Sube Ram constructed the portion shown in red in the site plan Ex. D1 thereafter Sh. Jai Lal and Sh. Har Lal constructed their portions. The portions shown in green color in the site plan belongs to the gaon sabha and was a shamlat land. My father and my tau Sh. Har Lal started keeping constructing on the portion shown in green and owned by the gaon sabha. Presently, there is a dispute on sharing of the portion Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 33/44 shown in green. The plaintiff intends to get my gate close and grab even my share in the green portion.
(c) Statement of Sh. Har Lal (defendant No. 4 in the main suit) On Oath At the time of partitioned of the ancestral house of the Pt. Sehra in the year 197072, the portion shown in green was not owned by the family. I have seen the site plan Ex. D1. Presently there is a dispute on sharing of land shown in green. There is no gate of the defendant No. 1 at point E as shown in the site plan. Further, admittedly there was no partition of the said green portion and the same is still undivided but parties have not filed suit for partition. 15.3. Thereafter on the statement of the parties, DDA was impleaded as a defendant in the suits. Thus, it is clear that the portion shown in green color has not been inherited by the parties. All the parties have stated that the property came into their hands from Gaon Sabha (now DDA) but none of the parties have filed any documents to show their ownership over the portion shown in green color. Therefore, court can not determine the share of the parties unless parties stated that their respective shares have been demarcated or the same are identifiable nor the court can look into the question of ownership in a simpliciter suit for injunction based on the averments of possession and use of the property. 15.4. It is well settled rule of law that in civil cases the burden of proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 34/44 probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
16. FINDINGS ON THE ISSUES IN THE MAIN: 16.1. Issue No. 1 Whether the plaintiff is entitled for the relief of injunction as prayed for?OPP.
16.2. In the present suit, as per plaintiff, the defendant is trying to encroach upon the portion of the plaintiff shown in red color in the site plan and plaintiff has also stated that his brother i.e Sh. Genda Lal has also opposed the illegal construction by the defendant No. 1 to 3 and therefore, plaintiff has right to file the suit on behalf of his brother also. Defendant No. 1 to 3 have admitted that the property of plaintiff adjoins the property of the plaintiff. The admitted the site plan which is Ex. PW1/DX also shows that the property of defendant No. 1 to 3 and plaintiff is adjoining to each other. Further, the site plan also shows that the property of brother of plaintiff Sh. Genda Lal is also adjoining to the property of defendant no. 1 to 3. As far as the plea of the plaintiff is that plaintiff has right to sue on part on behalf of his brother Sh. Genda Lal is concerned, during pleadings in replication as well as examination, the plaintiff has duly admitted the compromise entered into between defendant No. 1 and said Sh. Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 35/44 Genda Lal. Now even if there is any violation of terms of compromise which is Ex. PW1/DX2, then the plaintiff has no locus standi to sue defendant no. 1 to 3 on the basis of said compromise as there is no privity regarding the said compromise between the plaintiff and defendant no. t 1o 3 and the violation of terms of compromise, if any, is a separate cause of action in hands of said Sh. Genda Lal as Sh. Genda Lal is not a party to the present litigation. 16.3. Further, the onus is upon the plaintiff to show that the defendant No. 1 to 3 are raising construction over the land belonging to the plaintiff. As per plaintiff, the plaintiff has shown the disputed portion in red colour in site plan which is Ex. PW1/1 but during cross examination, PW1 himself has stated that "...........It is correct that the site plan filed by the defendant is correct as per site and show the correct position of suit property. The same is Ex. PW1/DX. It is correct that the site plan filed by me does not depict the correct position of the site......"
16.4. Further, plaintiff himself has admitted that the portion shown in red color in site plan Ex. PW1/DX belongs to defendant but as he has stated during cross examination that ".........It is correct that the ancestral property of the family is shown between points A1, A2, A3 and A in the Ex. PW1/DX. It is correct that Late Sh. Sube Ram, father of the defendant No. 1 and 2 raised constructions of two room, veranda and two khotaries in his 1/3rd Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 36/44 portion of the ancestral property shown in portion red in Ex. PW1/DX. At that time, the land shown in green colour was open land........"
Now, the obligation is upon the plaintiff to prove the encroachment as well as the details of encroachment. Now the plaintiff has admitted that construction was raised by defendant No. 1 to 3 in the portion shown in red color belonging to the defendant No. 1 to 3, so no question of encroachment arises. Further, the plaintiff has neither proved his own site plan nor has given any measurement or area of encroachment, if any, by the defendant. Further, plaintiff has even stated during cross examination that he does not have any documents to show that the land before the gate at point E in Ex. PW1/DX belong to him or to his brother Sh. Har Lal i.e defendant No. 4.
16.5. Thus, plaintiff has failed to show the portion or the disputed area where the defendant No. 1 to 3 have illegally make encroachment upon the portion of the plaintiff. Accordingly, issue No. 1 is decided in favour of the defendant no. 1 to 3 and against the plaintiff.
As the issue No. 1 has been decided in favour of the defendant No. 1 to 3 and against the plaintiff, the suit is liable to be dismissed as the plaintiff has failed to prove his own case.
17. FINDINGS ON THE ISSUES IN THE SECOND SUIT:
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 37/44
17.1. Issue No. 1 and 2 are discussed together being interlinked.
Issue No. 1: Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?OPP.
Issue No. 2: Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?OPP.
17.2 The onus to prove this issue is upon the plaintiff (defendant No. 4 in the main suit). In the present suit, as per plaintiff, the defendant No. 1 to 3 have enter into their houses from the front side and there is an open area measuring 44 ft at 397 is lying vacant and the plaintiff has constructed the tin shed upon the said vacant land shown in green colour in the site plan Ex. PW1/DX. The defendant no. 1 to 3 started construction over the vacant portion of the said land which fell into their share (open part of portion shown in Ex. PW1/DX) and during construction, defendant No. 1 to 3 have encroached upon portion of land measuring 4'' X 39'' which belongs to defendant No. 4 and 5 and also tried to put a gate towards the portion belonging to plaintiff to make a passage in the land belonging to the plaintiff and defendant no. 4 and 5, therefore, plaintiff has filed the present suit for permanent injunction thereby restraining the defendant no. 1 to 3 from encroaching upon the portion shown in red color and for mandatory injunction thereby directing the defendant no. 1 to 3 to close the opening gate shown at point D in Ex. DW4/1.
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 38/44
The plaintiff has proved the site plan which is Ex. DW4/1 and the plaintiff has sought permanent injunction that defendant No. 1 to 3 be restrained from laying down the roof over the encroach portion and putting gate over the place shown in red color. As per plaintiff, the defendant No. 1 to 3 have encroached upon the area shown in red color in the site plan Ex. DW4/1 but the plaintiff has not given any dimension or measurement of the said red portion. Further, perusal of site plan, it is clear that the property of plaintiff and defendant no. 1 to 3 is not adjoining to each other as the property on one side of the portion shown in red color in Ex. DW4/1, belongs to defendant No. 1 to 3 and the opposite portion belongs to defendant no. 4 and 5 i.e successors of Sh. Jai Lal. Now it is upon the plaintiff to show how the right of the plaintiff are being affected by alleged encroachment by defendant no. 1 to 3 but plaintiff has not explained the same and further the plaintiff himself has stated that "The said portion belongs to defendant No. 4 and 5."
It is clear that the plaintiff has no locus standi to seek the permanent injunction specially in view of the fact that the defendant No. 4 has already filed suit against defendant no. 1 to 3 (as has been treated as main suit). 17.3. Further plaintiff has sought mandatory injunction that defendant defendant No. 1 to 3 be directed to close the opening gate at point D shown in site plan and the same has been shown as point E in the Ex. PW1/DX. As far as the same is concerned, PW1 (defendant No. 4 in the present suit) has admitted during cross examination that Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 39/44 ".........It is correct that Late Sh. Sube Ram had also build a gate at point X in Ex. PW1/DX. Vol. This area was open at that time.........
........It is correct that the portion marked red and shown as gali in Ex. PW1/DX is common passage (aam rasta). It may be for the last more than 3540 years. It is wrong to suggest that the gate shown in the site plan Ex. PW1/DX. The land in front of gate X in Ex. PW1/DX belongs to Sh. Genda Lal. I have not brought any document to show that the land in front of gate X in Ex.
PW1/DX belongs to Sh. Genda Lal. I can not bring any such document. Vol. This land belongs to our forefather. It came to the share of Sh. Genda Lal after partition. I can not say if the portion between points A5, A9, A10 and A8 in Ex. PW1/DX has been encroached by Sh.
Goverdhan S/o Sh. Har Lal. It is correct that we have lodged the litigation against Sh. Tirlok Chand to take control of the open area shown red as gali in Ex.
PW1/DX. Vol. The green portion belongs to our family.
Thus, PW1 had admitted that the father of the defendant No. 1 to 3 have built a gate at point E in Ex. PW1/DX. Further, PW1 himself has admitted that the land in front of gate 'X' belongs to his brother i.e Sh. Genda Lal so the defendant No. 4 does not have any locus sttandi to object to the opening of the said gate.
17.4. Further, PW2 has also stated that "It is correct that the passage as shown in A1 to A6 in the site plan Ex. PW1/DX is a common passage Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 40/44 and defendant No. 1 has no right to put gate on this common passage to block the entry."
Thus, admittedly the gali in red color is common passage and as has been discussed during finding in the main suit that the portion shown in red color belongs to defendant No. 4/Sh. Trilok Chand, then the defendant No. 4/Sh. Trilok Chand also has a right to use the common passage and he can do so and plaintiff can not restrain the defendants. In view of the above discussion, issue No. 1 and 2 are decided in favour of the defendants and against the plaintiff as the plaintiff has failed to show any locus standi to file the present suit and has failed to prove his own case.
As the issue No. 1 and 2 have been decided in favour of the defendants and against the plaintiff, the suit is liable to be dismissed as the plaintiff has failed to prove his own case.
18. FINDINGS ON THE ISSUES IN THE THIRD SUIT:
18.1. Issue No. 1
Whether the plaintiff is entitled for the relief of injunction as prayed for?OPP.
18.2. The onus to prove this issue is upon the plaintiff. In the present suit, Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 41/44 plaintiff has sought the relief of permanent injunction thereby restraining the defendants from interfering or obstructing the construction work of the house of the plaintiff shown in red colour in the site plan.
18.3. The parties have filed interim applications in second suit and in the present suit whereby Sh Har Lal (plaintiff in second suit) had sought the interim relief that the defendants should be restrained from carrying out any further construction while in the third present suit, plaintiff/defendant No. 1 in the main suit has sought the interim relief thereby restraining the defendants from causing interference in carrying out construction by the plaintiff (i.e Sh. Trilok Chand).
The Ld. Appellate Court rejected the interim relief of injunction sought by Sh. Har Lal (i.e plaintiff in the second suit) and allowed the plaintiff in the present suit i.e Sh. Trilok Chand to complete the construction work subject to the conditions. The relevant portion of the concerned order dated 08.01.2001 by the Ld. Appellate Court read as follows: "Therefore, whatever construction appellant No. 1/defendant No. 1 (Sh. Trilok Chand) would carry out would be at his on peril if it would be revealed after trial that the land was either public land or belonged to defendant No. 4 and5/respondent No. 2 and 3."
Thus, the relief sought by the plaintiff in the present suit has been satisfied and now the onus shifts upon the defendants to show that the plaintiff has carried out construction by encroaching upon the shares of the defendants and the onus is upon the defendant/DDA that the open land of 280 Sq. Yards Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 42/44 shown in green color is a public plot. In view of the discussion, during main suit and second suit, it is clear that defendants have failed to show that plaintiff has made construction by encroaching any portion belonging to the defendants. Defendant No. 6/DDA has also not lead any evidence in support of its contention that the plaintiff has raised construction over the portion which belongs to DDA. Further, from the evidence lead by both parties, it is clear that the plaintiff/Sh. Trilok Chand has established by evidence that the red portion in site plan Ex. PW1/DX belongs to plaintiff and construction over the portion shown in red color in site plan and plaintiff has also been able to prove that he has raised construction over his portion. Thus, the plaintiff has been able to prove that he has raised construction over his portion/share.
18.4. As far as the plea of the DDA is concerned, in absence of any evidence by defendant No. 6/DDA, the court can not ascertain tittle of the portion claimed by the DDA. Moreover, in present suit, the title or ownership is nowhere in question nor any issue to that effect has been framed, therefore, the court can not look into the title of the property. In view of the above discussion, it is clear that plaintiff has been able to show that he has raised construction on his portion while the defendants have failed to prove their averments. Accordingly, the issue No. 1 is decided in favour of the plaintiff and against the defendants. But there is no requirement of any order of removal of construction raised by plaintiff/defendant No. 1 in the main suit and the suit stands disposed off as the relief being already satisfied.
Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 43/44
19. As has already been recorded, the main suit and the second suit have been dismissed as the plaintiffs therein have failed to prove their own case and in the third suit, the main relief had already been granted in the form of interim relief and defendants have failed to discharge the onus put upon them, therefore, the third suit is disposed off as the relief being already satisfied.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance. Announced in the open court on st 31 May, 2013 (Prabh Deep Kaur) Civil Judge05(West) THC/Delhi/31.05.2013 Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 44/44 Suit No. 378/10 Sh. Bisan Swaroop & Ors Vs. Sh. Trilok Chand & Ors Page No. 45/44