Delhi District Court
Sh.Ram Chander vs Sh.Ganga Ram (Since Deceased) on 22 September, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.990/00/99.
Sh.Ram Chander
S/o.Sh.Kanwal Singh,
R/o.Village Palam,
New Delhi. .............Plaintiff
Vs.
01. Sh.Ganga Ram (Since deceased)
through legal heirs:
a. Somwati
W/o.Late Ganga Ram
b. Gyaneshwar
c. Phool Kanwar
Sons of Late Ganga Ram
R/o.RZ-802, Village Palam,
New Delhi.
d. Vijay Kumar
e. Pawan Kumar
Both Sons of Late Ganga Ram
R/o.313/10, Adarsh Nagar,
Behind Meenakshi Garden Banquet Hall,
Sonepat, Haryana.
f. Rajwati, W/o.Sh.Arvind Kumar
D/o.Late Ganga RamR/o.129,
Police lines, Gurgaon, Haryana.
Suit No.990/00/99 page 1 of page 11
g. Bijendari W/o.Shrikant Sharma
D/o.Late Ganga Ram
R/o.1009, Main Gali Azard Nagar,
Raj Garh Road, Hissar,
Haryana.
h. Sunita W/o.Sh.Bijender Kumar
D/o.Late Ganga Ram
R/o.Village & Post Lova Khurd,
Bahadur Garh, District Jhajjar,
Haryana.
i. Poonam W/o.Shri Narinder Kumar
D/o.Late Ganga Ram
R/o.Village & Post Badshah Pur,
Mohalla Taygi Wada,
Gurgaon, Haryana.
02. Sh.Banwari Lal
03. Sh.Pirthi
04. Sh.Puran
All sons of Sh.Ram Chander
05. Sh.Kuldip,
S/o.Sat Dev
All R/o.Village Palam,
New Delhi-110045. ................Defendants
Date of institution : 23.07.1999.
Date of reservation : 29.08.2011.
Date of pronouncement : 22.09.2011.
JUDGMENT
01. This is a suit for mandatory and permanent injunction, filed by the plaintiff against the defendants.
Suit No.990/00/99 page 2 of page 11
02. In brief, the facts of present case as made out in the plaint are that plaintiff is the owner and in possession of property built on land of Khasra no.33/5/2 in the revenue estate of village Palam and the said house of the plaintiff is built on 310 sq.yards. It is stated that it was a big plot of land and its co-sharer i.e.Ramdass, Ramkishan etc divided the same in the year 1983, after leaving five feet common passage on the southern side of the plot and eight feet wide gali/common passage on the northern side of the plot for their ingress and egress of their respective portions connecting the same on the main road on the eastern side of big plot.
03. It is claimed that said two common passages runs from east to west and part and parcel of the plot of the said co-sharer and plaintiff is the co-owner of the land of the said two common passages. On the southern side of the plaintiff's house, beyond the said five feet gali, just opposite the plaintiffs, the defendants have their house and the said gali of five feet width, was open upto point C-D in the site plan and the plaintiffs and others have been using the said gali while coming and going from both ending points of the said gali and just opposite the property of the plaintiff, beyond the said gali, there is a wall of the house of defendants at point XY in the site plan and at point G there is a gate of the house of the plaintiff opening into the said gali five feet wide facing the wall XY, which has been in use and enjoyment of the plaintiff for ingress and egress, while he is using the said gali from both ends.
04. It is the case of the plaintiff that the said five feet gali is a private gali of the plaintiff and Ramdass etc. and the defendant have no right, interest, title or authority to make use of the same or to encroach upon or to block the same. It is alleged that defendants by use of force, unauthorisedly, got constructed two masonry walls at point A-B and C-D Suit No.990/00/99 page 3 of page 11 as shown in the site plan with a view to deprive the plaintiff to the user of the said gali and thereafter, the defendants want to remove the wall XY with a view to grab the portion of the gali shown red in the site plan attached. It is stated that the said walls have been raised very recently 15 days back and all requests made by the plaintiff to remove the said wall and to restore the free passage have gone in vain. Hence, the present suit for grant of a decree of mandatory injunction directing the defendants to remove the wall AB and CD and restore the said five feet wide street to its original position as shown in the site plan attached with plaint and for a decree of permanent injunction to restrain the defendants from blocking the said five feet gali and from making any blockage and/or construction on the portion shown red in the plan attached of the said gali, in any manner whatsoever, is filed.
05. Defendant no.1 contested the present suit by filing detailed written statement, while taking preliminary objections that there is no gali of five feet wide as alleged by the plaintiff and defendant is in possession of the suit property and have put up Tin sheds/pacca room and is being used for tethering the animals and alleged passage is part and parcel of the plot of the defendants as all defendants are member of the same family and there is no question of ingress or egress towards the southern side as alleged by the plaintiff; the defendant has constructed the tin shed/room about more than 10 years back and as such, the wall and tin shed is in existence for the last more than 10 years and the suit of plaintiff is time barred and is not maintainable; suit is bad for non-joinder of parties as plaintiff has not impleaded the other co-sharers of Khasra no.33/5/2 as alleged by him; suit is without any cause of action; this court has no jurisdiction to try the present suit; plaintiff has suppressed the material Suit No.990/00/99 page 4 of page 11 facts; plaintiff never remained in possession of the alleged five feet gali towards the southern side of the alleged plot of the plaintiff; plaintiff is a habitual litigant and land grabber. On merits, the contents of the plaint have been denied while submitting that there is no gali towards southern side as alleged by the plaintiff, but, the suit property is part and parcel of the plot of defendant no.1, whereupon, defendant has constructed a tin shed and room and is being used for tethering the animals and for storing the agricultural produce and other materials. It is submitted by defendant no.1 that suit of the plaintiff be dismissed with exemplary cost.
06. Defendant no.2 also contested the present suit by filing detailed written statement, while taking preliminary objections that plaintiff has not come to the court with clean hands and have suppressed the material facts that in the year 1985 the land under dispute, was demarcated by the Patwari and then it was transpired that land in dispute is actually in possession and control of defendant no.2 wherein the defendants have constructed a Pacca Kothri/Shed for the cows and buffallos and there is no gali or street measuring five feet towards the southern side of the alleged plot; the wall and cow shed is in existence of last more than 10 years, therefore suit of the plaintiff has become infructuous and is barred by time. On merits, the contents of the plaint have been denied, while submitting that there is no passage or gali five feet wide towards the southern side of the said plot and where the plaintiff alleges that there is a gali, it is a land of the defendants and is in existence for last more than 10 years. It is prayed by defendant no.2 that suit of the plaintiff be dismissed with heavy cost.
07. Plaintiff filed replication to the written statement of both the defendants, wherein, he denied the submission as made on behalf of Suit No.990/00/99 page 5 of page 11 defendants and reaffirmed the contents of the plaint.
08. From the pleadings of the parties following issues were framed vide order dated 29.08.2002 :-
1. Whether the maintainability of the suit is hit as alleged in preliminary objection of WS ? OPD.
2. Whether plaintiff is entitled for injunction ? If so, in what nature ? OPP.
3. Relief.
09. In support of its case, plaintiffs examined Sh.Ram Chander as PW-1, Sh.Satibir Singh as PW-2, Sh.Parveen Kumar, Patwari, Halka Palam, New Delhi as PW-3, Sh.R.K.Jha, Assistant Manager, Mawana Sugar Ltd. Distt. Meerut, UP as PW-4 ( who was appointed as Local commissioner). On the other hand, defendants filed examination in chief of Sh.Ganga Ram, S/o.Sh.Ram Chander, but, he did not appear in the witness box for tendering the affidavit and it was hold vide order dated 02.05.2006 that the affidavit of Sh.Ganga Ram placed on record on 08.08.2005, shall not be read in evidence.
10. I have heard ld.counsel for parties and perused the record as well as written submission filed on behalf of plaintiff and defendant no.1. My issue wise findings are as under:-
Issue no.1.
11. Onus to prove this issue was upon the defendant. Defendant took the preliminary objection that defendant constructed the tin shed/room about more than ten years back and as such, the wall and tin shed is in existence for the last more than ten years, therefore, the suit of the plaintiff is time barred and is not maintainable in the eyes of law. Ld. Suit No.990/00/99 page 6 of page 11 Counsel for defendant no.1 has also drawn my attention in respect of authority reported as AIR 1983 SC 452 titled as Krothapali Satyanarayana V. Koganti Ramaiah and others.
12. At the outset, it is pertinent to mention over here that no evidence is led by defendants to discharge their onus to show that wall and tin shed is in existence more than ten years. However, PW-1 Sh.Ram Chander, in his examination in chief by way of affidavit i.e.Ex.P-1 deposed that the said walls have been raised very recently i.e. 15 days back and all the requests made by the plaintiff to remove the said walls and to restore the passage has gone in vain. This testimony of PW-1 remains uncontroverted. Even a suggestion was not given to PW-1 when he was in witness box that the walls have not been raised recently or were raised as alleged by the defendant ten years back. Therefore, in absence of any evidence in support of the objection as taken by defendants in their written statement, this issue is decided against the defendants and in favour of plaintiff.
Issue no.2.
13. Onus to prove this issue was upon the plaintiff. PW-1 Sh.Ram Chander in his examination in chief, deposed that he is the owner and in possession of property built on land of Khasra no.33/5/2 measuring 310 sq.yards situated in the revenue estate of Palam, which was a big plot of land and its co-sharer i.e.Ram Dass, Ram Kishan etc. divided the same after leaving five feet common passage on the southern side of the plot and eight feet wide gali/common passage on the northern side of the plot for their ingress and egress of their respective portions connecting the same on the main road on the eastern side of the said big plot. PW-1 deposed that site plan Ex.PW-1/1 is correct and as per actual position at the site as got Suit No.990/00/99 page 7 of page 11 prepared by him. The khatoni of the village Palam for the year 1977 - 78 showing the name of PW-1 as Khatedar is proved as Ex.PW-1/2. PW-1 further deposed that he is co-owner of the land of the two common passages and just opposite the plaintiffs, beyond the said five feet gali, the defendants have their house. PW-1 deposed that the said gali of five feet width was open upto point C-D in the site plan Ex.PW-1/1 and at point G there is a gate of the house of the plaintiff shown as G in the site plan, opening into the said gali five feet wide facing the wall XY i.e.wall of the house of the defendants and the defendants by use of force and illegally got constructed two masonry walls at point A-B and C-D as shown in the site plan with a view to deprive the plaintiff of the user of the said gali and defendants want to remove the wall XY with a view to grab the portion shown red in the site plan.
14. In his cross examination PW-1 confirmed that chakbandi was carried out in their village in 1953 and suit land was agricultural land. PW-1 further confirmed that adjacent to their land, the land was allotted to the father of the defendant which was later on, partitioned between co- sharers. PW-1 denied the suggestion that he has not filed a copy of Masavi, deliberately as he has shown in his plaint that the place for the passage has been left from their share and denied the suggestion that there was no passage.
15. PW-2 is Sh.Satbir Singh, who deposed that he is relative of the parties and know the facts. PW-2 deposed that the passage of five feet was left common on the southern side of the plot, in which, his father was also co-sharer and eight feet wide gali/common passage on the northern side of the plot for their ingress and egress of respective portion. PW-2 further deposed that both the gali and common passage are shown in site Suit No.990/00/99 page 8 of page 11 plan Ex.PW-1/1. In his cross examination, PW-2 deposed that plot came into their possession in 1984 after the partition and to a specific question, deposed that he is not able to interpret the site plan which has been marked as Ex.PW-1/2 though it has been mentioned as PW-1/1 in the affidavit of PW-1.
16. PW-4 is Sh.R.K.Jha, who was appointed as Local Commissioner, vide order dated 03.04.2002 to visit the site and to file his report in respect of location, nature of alleged construction at disputed site as shown in site plan filed by the plaintiff and Local Commissioner was also directed to prepare a fresh site plan with the help of a draftsman by showing the disputed site correctly and also to take the photographs of the disputed site from different angles. PW-4 proved his report Ex.PW-4/A and deposed that on his instruction Sh.S.K.Verma, present in the court on that day prepared the site plan Ex.PW-4/B which bears the signature of draftsman at point X and also proved the rough report of proceedings as Ex.PW-4/C. PW-4 in his cross examination by ld. Counsel for defendants denied the suggestion that no gali exists on the site which is shown by him at point Y in annexure Y to his report i.e.Ex.PW-4/B. PW-4 further deposed that peoples were going and coming through the street from point Y in the site plan Ex.PW-4/B and the gate mentioned in the point Z in the report was closed at the time of his inspection.
17. Perusal of site plan as filed by plaintiff Ex.PW-1/2 shows that two common passages have been shown in the site plan, one is on the northern side of the plot i.e.eight feet wide and another in five feet wide on the southern side of the plot, which has been shown in red colour. The passage five feet wide is shown blocked at point CD and AB in front of the house of the defendant no.1. Had there been no blockage of passage as Suit No.990/00/99 page 9 of page 11 shown at point CD and AB in the site plan Ex.PW-1/2, the five feet wide gali becomes a open gali, linked to main road. The fact that there is a gate at point G in the property of plaintiff towards the house of the defendant and is within the portion AB and CD, which is in possession of the defendants being owner as claimed by them, for tethering the animals, is not in dispute. The gate at point G in this portion itself shows that the portion between point AB and CD was five feet wide passage. The report of ld.Local Commissioner i.e.Ex.PW-4/A also supports the case of the plaintiff. In his report Ex.PW-4/A it is mentioned that there is an iron gate marked IJ which is black in colour in the photograph and is about 5 feet 4 inch wide and is presently locked. The said iron gate is just touching the boundary wall of the shed built opposite to the boundary wall marked CD. Nothing came on record which may diminish the evidentary value of the report of ld.Local Commissioner. The photographs, as filed by local commissioner with his report, are also not in dispute. Defendants have failed to show any legal right to block the gali, which is shown in the red colour in the site plan filed by the plaintiff at point AB and CD.
18. The main contention of ld. counsel for defendant as also appearing in the written submission was that the suit land is still agricultural land, and Lieutenant Governor of Delhi has not issued any notification for regularisation of the house of the plaintiff, therefore, the jurisdiction of this court is barred u/s 185 of DLR Act. The plaintiff has not filed any suit for declaration of Bhumidhari rights and suit of the plaintiff does not come as mentioned in column III of Schedule I of DLR Act 1954. Therefore, the suit of the plaintiff for mandatory injunction as filed is not barred u/s 185 of DLR Act 1954. In view of above reasons and discussion, I am of the considered opinion that plaintiff is entitled for Suit No.990/00/99 page 10 of page 11 decree of mandatory injunction, for directing the respondents to remove the wall AB and CD to restore the said five feet wide street as shown in the green colour in the site plan filed with the plaint. Accordingly, this issue is decided in favour of plaintiff and against the defendants. Relief.
19. In view of my findings on the aforesaid issues, suit of the plaintiff stands decreed in favour of plaintiff and against the defendants with costs, and a decree of mandatory injunction is passed directing the defendants to remove the wall AB and CD as shown in the green colour in the site plan filed by the plaintiff and marked as Ex.PW-1/2. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ( S.K.MALHOTRA ) on 22.09.2011. SCJ/RC/(North)/DELHI Suit No.990/00/99 page 11 of page 11