Delhi District Court
Judgment vs . on 27 August, 2016
-1-
In the court of Ashwani Kumar Sarpal, Additional District Judge-1,
North East District, Karkardooma Courts, Delhi
RCA no.- 33/16
Sh. Satish Kuamr Saini
vs.
Sh. Jatan Swaroop & Others
Date of filing of appeal--------- 04.05.2016
Date when order reserved----- 13.07.2016
Date of final decision-------------27.8.2016
(APPEAL UNDER SECTION 96 C.P.C. AGAINST THE JUDGMENT &
DECREE DATED 31.03.2016 IN SUIT NO. S-104251/15 (OLD NO.
357/2010) BY THE COURT OF SMS. NIYAY BINDU, ASCJ (NE)
KARKARDOOMA COURTS, DELHI)
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JUDGMENT:-
Appellant/plaintiff filed a suit for permanent and mandatory injunction in the Ld. Trial Court which was dismissed on 31.03.2016 against which he has now come in appeal in this court. Respondent no. 2 MCD and respondent no. 3 SHO, PS : Karawal Nagar were the defendants no. 2 & 3 before the Ld. Trial Court but no notice of this appeal has been issued to them as they appeared to be a performa parties. However, respondent no. 1 who was defendant no.1 before the Ld. Trial Court has contested this appeal and even filed -2- cross objections with a prayer that the plaintiff should be directed to close the iron gate which he has illegally and unauthorizedly affixed towards his house situated in Gali no. 3 in order to encroach upon and tresspass in that gali.
I have heard counsel for both the parties and gone through the Trial Court record. First of all the cross objections filed by the defendant no. 1 seeking prayer against the plaintiff for giving him directions to close the iron gate opening towards Gali no. 3 is liable to be rejected straightway because no such prayer was made before the Ld. Trial Court and even there was no counterclaim in this regard. If the defendant no. 1 is treating this land consisting of gali no. 3 as his separate private land, then he has a separate remedy to get the injunction against the plaintiff for tresspassing the same.
Plaintiff is alleging that his plot is having an opening towards Gali no. 3 also as shown in the site plan Ex. PW1/1 and the defendant no. 1 was trying to block the said entry by raising illegal construction of a wall adjacent to the gate of his plot opening towards that gali. Plaintiff alleged that gali no. 3 is a government land/street and all the persons have a right to use the same on the principles of equity and easement.
Before the Ld. Trial Court, plaintiff could not lead any evidence to show that the Gali no. 3 is a public land or a common street and everyone has a right to use the same. He also could not produce his sale documents or even previous chain of title documents to show that his plot was having any opening towards this gali. The right of easement does not arise at all because the period of 20 years had not lapsed from the date of the purchase of this plot by the plaintiff. He also could not show any layout plan issued by any government agency to point out that any public road or any common -3- street existed where his gate is installed. Plaintiff agreed to produce his sale documents when his cross examination was started but on the next date, he informed that the same have been lost and no sale document or even chain of previous documents is available. He allegedly reported the matter to the police regarding this loss but no police complaint was shown. These facts clearly indicates that plaintiff intentionally concealed his title documents from the court as his plot was not showing any entry from the alleged Gali No. 3 as his main entry was from 15 feet gali on the western side. The non production of the material documents draws an adverse inference against the plaintiff. The statement of PW-2 and PW-5 contained number of discrepancies and makes their version as unreliable.
After going through the judgment of the Ld. Trial Court, I am of the opinion that there is nothing material on record which is going in favour of the plaintiff which require the necessity to set aside the same. The reasoning given by the Ld. Trial Court is fully correct and needs no interference. In such situation, the present appeal is hereby dismissed. Parties to bear their own costs. Copy of this judgment be sent to the Ld. Trial Court alongwith the record and appeal file be consigned to record room.
(Ashwani Kumar Sarpal) Dt. 27-8-2016. Addl. District Judge-1