Delhi District Court
Surinder Kumar Mangal vs Prem Lata Anr on 30 March, 2024
IN THE COURT OF SH. SIDDHANT SIHAG,
ACJ/ARC/CCJ- NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI
CNR No. DLND03-000876-2015
CS No: 57337/16
IN THE MATTER OF
Surinder Kumar Mangal
S/o Sh. Mange Lal Mangal,
R/o 1/234, Sadar Bazaar,
Delhi Cantt., Delhi. ....Plaintiff
Versus
1. Smt. Prem Lata
W/o Sh. Babu Lal,
R/o II/46/2, Sadar Bazar,
Delhi Cantt., Delhi.
2. Sh. Kuldip Sugnadh
s/o Late Babu Lal
r/o WZ315A, Lajwanti Garden,
Gali No. 2, New Delhi. ...... Defendants
Date of Institution : 20.08.2015
Final arguments heard on : 23.03.2024
Judgment pronounced on : 30.03.2024
SUIT FOR POSSESSION, PERMANENT INJUNCTION
AND RECOVERY OF Rs. 18,000/-RUPEES EIGHTEEN
THOUSAND ONLY)
JUDGEMENT
1. Vide this judgment, I shall dispose of the instant civil suit filed by Sh. Surinder Kumar Mangal (hereinafter Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 1/33 referred to as the "plaintiff") against Smt. Prem Lata and Sh. Kuldip Sugandh Draupadi (hereinafter referred to as the "defendants"). The plaintiff instituted the instant suit for possession, declaration and mandatory injunction and for recovery of Rs. 50,000/- (Rupees Fifty Thousand Only) as damages.
2. Factual Matrix: It is stated in the plaint that The plaintiff is the owner of the property bearing No. II-51, Sadar Bazar, Delhi Cantt., which is double story building having shop on the ground floor and a godown on the first floor. It is alleged that the defendant No. 1 is the owner of the property II/46/1 and II/46/2, Sadar Bazar, Delhi Cantt while the defendant No. 2 is the son of the defendant No. 1 and is also the owner and in occupation of the property No. II/45/2, Sadar Bazar, Delhi which is just at the back of the property of the plaintiff. It is further alleged that the defendant No.1 got vacated the property No.II/46/1 from his tenant, who was running a sweet shop and thereafter, demolished the said property in order to raise new construction which was unauthorized for which no permission was taken from the Delhi Cantt. Board, hence, Delhi Cantt Board, issued the notice of demolition and directed to stop the construction. However, during this process, the defendant No. 1 has caused hardship to the plaintiff to go to the roof top.
Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 2/33It is further alleged that since the defendant No.1 and 2 claim themselves to be the owners of the property mentioned as above and that of back portion they stacked, waste material and also installed heavy machine on the roof top thereby causing damage to the roof and leakage and seepage was also found on then first floor godown, causing heavy damage to the property and the goods stored therein belonging to the plaintiff. It is further alleged that defendant No. 2 illegally and unlawfully opened a door towards the property of the plaintiff and also defendant No. 2 has fixed air conditioner emitting hot air towards the property of the plaintiff and said air-conditioner is fixed in such a manner that it is an encroachment on the portion of plaintiff. Since, defendant No. 2 has back portion, he had no right to open any door towards front portion or to use stair case or passage on front portion.
It is further alleged that in the course of demolition and reconstruction, a notice was issued by Delhi Cantt. Board, therefore, the defendant No. 1 put a brick-wall near the portion under the stair case which was always under possession, occupation and use of the plaintiff thereby obstructing the use of the portion under the stair case. It further alleged that entire portion under the stair case was always in use and possession of the plaintiff as in adjoining portion of shop. It is further alleged that defendant No. 1 was not in possession as the same was let Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 3/33 out to Shri Hari Chand Jain & Sheetal Pershad Jain, who vacated it since defendant No.1 filed eviction petition against them.
It is further alleged that the plaintiff served notice dated 25.07.2014 which was replied by the defendant on 29.08.2014 containing false and frivolous allegations. It is further alleged that after the service of the said notice, the defendant No. 1 has removed the machine and other waste materials from the roof top of the property of the plaintiff but has neither removed the air-conditioner nor closed the door nor vacated the portion under the stair case. It is further alleged that since, the defendants have damaged the roof of the plaintiff's premises, as stated above and there is continuous dampness in the roof, which requires extensive repairs and as such, the plaintiff sought advice that a sum of Rs. 50,000/- shall be spent in the replacement of the roof otherwise, there is every likelihood that the roof will fall, therefore, plaintiff is entitled to recover Rs. 50,000/- in this regard from the defendants. Aggrieved by the acts of the defendant, the plaintiff has approached this court with the instant suit seeking a decree of possession, declaration, mandatory injunction and for recovery of Rs. 50,000/- as damages.
3. Relief sought: The following reliefs have been sought by the plaintiff in the instant suit:-
a) A decree of possession be passed in favour of the plaintiff and against the defendant in respect of the portion under the stair case of property No.s Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 4/33 II/45/1 & II/46/2, Sadar Bazaar, Delhi Cantt, Delhi, more conspicuously shown in the red lines in the attached plan.
b) A decree of mandatory injunction be also passed in favour of the plaintiff and against the defendants directing the defendants to remove the Air-conditioners and close the door in property no. II/46/2, Sadar Bazar, Delhi Cantt, Delhi, opening towards the property II/45/2, Sadar Bazar, Delhi Cantt, Delhi;
c) That a decree of declaration be passed in favour of the plaintiff and against the defendants declaring that the defendants No. 2 have no right to enter the stair case between the property No. II/45/1, II/46/2 in Sasar Bazar, Delhi Cantt, Delhi, towards bazaar side.
d) That a decree of Rs. 50,000/- towards damages be also passed in favour of the plaintiff and against the defendants holding them jointly and severally liable to pay the said amount alongwith interest @ 12% per annum, both pendentelite and future till the realization of the whole decretal amount for causing damage to roof of property No. II/45/I, Sadar Bazar, Delhi Cantt, Delhi.
e) Cost of the suit be also awarded in favour of the plaintiff and against the defendants.
Any other or other further orders which this court may deem fit and proper in the facts and Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 5/33 circumstances of the case may also be passed in favour of the plaintiff and against the defendants.
4. Written Statement: In response to the summons, the defendants filed separate written statements wherein it is stated that the entire suit of the plaintiff is based on false facts.
The defendant No. 1 has contended that the plaintiff here is bent upon to harass the answering defendant and has earlier filled petition against the answering defendant. It is further alleged that the plaintiff herein had also filled a contempt petition numbered as 693/2012 which was dismissed on merits. It is further alleged there is no locus standi of the plaintiff herein to institute the present proceedings. It is further alleged that it is clarified that the plaintiff has not even annexed any title deeds or building sanction plan which would show that the said portion of the staircase fell into the portion of the plaintiff. It is further alleged that no cause of action as alleged has arisen in the present case and the present suit is barred under Section 41(i) and (j) specific Relief Act, 1963 as the plaintiff has not come with clean hands and being guilty of suppression of material facts and also has no personal interest in the matter apart from unnecessarily harassing the answering defendant and her family.
Defendant No. 1 has stated that she got vacated the property No. II/46/1, which was a shop and denied that she raised any unauthorized construction on her property. She further stated Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 6/33 that it was only the repair work which had been undertaken by her. She further stated that she has not poured any waste material nor have installed heavy machines on the roof-top thereby causing damage to the roof.
It is contended that plaintiff has no locus standi in the present matter as the property which is the subject matter of the case i.e. the stair case have never been the property of the plaintiff and by the present suit, the plaintiff is illegally trying to seek a declaration decree with respect to his rights over the stair case. It is denied that portion under the stair case was in possession of the plaintiff.
It is contended that the sanctioned building plan dated 17.12.1970 shows that the stair case portion was a part of the property bearing No. II/46/I which is admittedly under the possession and ownership of the defendant no. 1.
The defendant No. 2 has contended that plaintiff has not produced on record any documentary or other evidence to establish a chain of causation, linking the alleged damage to the roof of the premises, to any direct or indirect actions of the defendants. It is further contended that there is no proof of any damage to the roof of the plaintiffs premises. It is further submitted that moisture in walls and ceiling is not the same as damage to a ceiling/roof and the plaintiff has not clarified as to whether his walls have sustained any damage in the form of cracks or there is moisture in the walls and the ceiling. It is Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 7/33 further contended that the law of damages in India requires the plaintiff to not only establish actual loss suffered by the plaintiff but is also required to establish duty of care owned by the defendant as well as the proximity of the damage caused in the chain of causation.
It is contended that the documents furnished by the plaintiff do not conclusively establish that the plaintiff is the owner of the abovementioned property and upon enquiry, the answering defendant has learnt that the document whereby the above mentioned property was transferred by one Mr. Bhartoo was infact fabricated and the signatures/thumb impression of the said Mr. Bhartoo were forged. It is also denied that the defendant no. 2 has caused any damage to the roof or has installed any heavy machine on the roof or that any damage has been caused to the roof.
It is contended that only one air-conditioner is installed in the window of the room of the defendant no. 2 over his own portion of the premises and there is no leakage or seepage caused due to running of the air conditioner or any other machine for that matter.
It is contended that the defendant No. 2 has not illegally or unlawfully opened any door towards the property of the plaintiff. It is further contended that there is no encroachment on portion of the plaintiff and the door opening towards the front portion of the entire property which provides access to the Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 8/33 portion of the defendant No. 2 has been in the property since its construction in the early 1990s, the access from this door has been used as an easementary right by the defendant No. 2 for past several decades.
It is further contended that the entire area under the staircase was always connected with the premises/shop of the defendant No. 1 and the plaintiff never claimed any rights therein. It is further contended that the legal notice reply has been allegedly sent by the plaintiff only to defendant No. 1.
5. Issues framed: On the basis of the pleadings, the court framed issues vide order dated 09.11.2016 which are as follows:-
(i) Whether the plaintiff is entitled to the relief of possession, mandatory injunction, declaration and damages as prayed for? OPP
(ii) Whether the plaintiff has no locus standi to file the present suit? OPD
(iii) Whether the plaint does not disclose any cause of action? OPD
(iv) Whether the plaintiff's suit is not maintainable? OPD
(v) Whether the plaintiff suit is barred under Section 41 (i) and (j) SRA? OPD Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 9/33
(vi) Whether the plaintiff has not valued the suit? OPD
(vii) Relief.
6. Evidence adduced by the plaintiff: Plaintiff got himself examined as PW-1 and tendered his evidence by way of an affidavit which is Ex. PW-1/A. The plaintiff relied on the following documents:
i. Site plan Ex.PW1/1;
ii. Sale deed Ex.PW1/2 (OSR);
iii. Copy of notice Ex.PW1/3;
iv. Copy of reply to notice Ex.PW1/4;
v. Copies of DCB bills Ex.PW1/5(de-exhibited and marked as Mark A as the original is not produced);
vi. Receipt of DCB bills Ex.PW/6 (de-exhibited and marked as Mark B as the original is not produced) vii. Complaint letter to DCB bill, Ex.PW1/7 (de- exhibited and marked as Mark C as the original is not produced) viii. Copy of Hon. High Court order dated 24.07.2012 Ex.PW1/7A (de-exhibited and marked as Mark D as the original is not produced);Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 10/33
ix. Six photographs of property Ex.PW1/8 (colly) (objected to a mode of proof)
7. In cross examination by Ld. counsel for defendant No. 1, PW1 was shown document Ex.PW1/1 and he has deposed that the said document does not bear his signature at any place. He has deposed that he does not remember who got this site plan Ex.PW1/1 prepared. He has deposed that number of the suit property of that time is mentioned as 235 in document Ex.PW1/1 and the suit property is 11ft. Wide and 21.5 ft. long. He has deposed that he has filed Sale Deed of the suit property in the present case and the dimensions of the suit property as per sale deed Ex. PW-1/2 is 11 x 12 ft. He has deposed that there are no separate papers of the varanda included in the shop. He has denied that they have encroached on the varanda. He has admitted that as per site plan Ex. PW-1/1, the stairs shown are adjacent to the 11 ft. width (front portion of the suit property). He has further deposed that as per the sale deed Ex. PW-1/2, the staircase between the plaintiff's and defendant's property was for common use.
He has deposed that the suit property is a leased property. He has admitted that lease of the property has already expired. He has admitted that at the time when suit property was purchased, the first floor was not constructed. H e h a s d e p o s e d t h a t t he recorded licensee of survey no. 49/34 Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 11/33 are Vijay Kumar Jain, Dharampal Jain, myself and 3-4 other persons whose name he does not remember. He has further deposed that he has documents to show that he is one of the recorded licensee of survey no. 49/34. He has produced a copy of proceedings of ordinary cantonment board meeting held on 11.05.2016 Ex. PW1/9 on which, his name appears on serial no.16. He has deposed that he cannot say whether his name is mentioned as a occupier in document Ex. PW-1/9 and not as a licensee.
He has further deposed that house No. 2/45/2 is at the back side of his property and is a residential property owned by defendant no.2. He has further deposed that house no.2/46/1 and 2/46/2 belongs to Prem Lata. He has further deposed that he has filed the present case as the defendant no. 2 has opened a door and fixed an air conditioner on his property. He has further deposed that he also filed the present case as the defendant no. 1 has demolished the stair case and thereafter, has constructed the same and has taken the possession of the same without permission of cantonment board. He has admitted that the said action of demolition and taking over the possession pertains to the year 2012. He has further admitted that the area under the stair case, was always in his possession and the deptt. i.e. DCB has initiated proceedings for demolition of the said staircase against Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 12/33 Sh.Sudhir Sugandh s/o Smt. Prem Lata Sugandh which is pending disposal.
He has further admitted that his grievance is qua defendant no. 2 and Sh. Sudhir Sugandh and he was not aware whether the property had been given by Smt. Prem Lata to Sudhir Sugandh. He has deposed that he does not know whether the negatives of the photographs have been filed by him in the present case and compliance of section 65-B of Indian Evidence Act has been done by him in respect of the photographs Ex. PW1/8. He has further deposed that he/Defendant no. 1 had kept a heavy machinery on the roof top of the property which was subsequently removed after the service of legal notice on his behalf. He has further deposed that the stock which was kept at the first floor of his property was damaged due to the water seepage on the roof of his property i.e. II/45/I, Sadar Bazar, Delhi Cantt. He has denied that in terms of Delhi Cantonment Building bye laws, the 1st floor of the property can not be used as godown for storage of stock. He has deposed that he had not filed any document/including bills on record showing the value of the stock which was damaged due to the said negligence and has also not filed on record any document suggesting the loss caused to him due to the damage to the property as well as the stock due to the leakage and seepage.
Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 13/33He has deposed that the rear portion of the air conditioner is towards the roof of his property. He has further deposed that the water drips from the air conditioner and on to the roof of his property. He has admitted that per his affidavit and pleadings, the only grievance he has with the installation of the air conditioner is that the same emits hot air towards his property. He has further deposed that he has no grievance with the emission of such hot air as the same is on the roof and he has no right on the said roof.
He has further deposed that the door opened by the defendant no. 2, is illegal as the same has been opened towards the staircase and not towards his property. He has further deposed that he was in a legal battle with Smt. Prem Lata Sugandh earlier also. He has further deposed that he has also filed an application under Order 1 Rule 10 of CPC for impleading himself as a party in the demolition case between the Cantonment Board and Sh. Sudhir Sugandh which pertains to the demolition of the staircase and the said application is pending disposal. He has admitted that he has filed the present case for seeking various relief as he was in a legal battle with the Sugandh Family. He has deposed that the affidavit has been prepared before him and he knew the contents of the same. He has further deposed that the affidavit has been attested before him in the Chamber of his counsel in High Court. He has denied that the said affidavit has not been Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 14/33 duly attested as the same has been notarized and not attested by an Oath Commissioner and he is entitled to relief of possession, mandatory injunction, declaration and damages.
He has denied that he has no locus standi to file the present suit. He has denied that he has come with unclean hand and only to take revenge from the defendant no. 1. He has denied that he has no relief left qua the defendant no. 1 or that the suit has not been properly valued for the purpose of court fees. He has further denied that he has no right in the suit property or that he himself is guilty of making/carrying out unauthorised construction over his property. He has denied that he has received show cause notice for carrying out such unauthorised construction from the deptt. i.e Delhi Cantonment Board and that he is deposing falsely.
PW1 has also been cross examined by defendant no. 2. PW1 has deposed that he has no relationship with the recorded lessee of survey no. 49/34 and when his father purchased the property bearing no. 2/45/1, the size of said shop was 12 x 13.5 feet and there was verandah/court yard in front of it. He has further deposed that at that time, court yard was covered and his father had purchased the shop as well as the court yard. He has further deposed that his father had constructed a 1st floor on the aforementioned shop and it is still in existence. He has deposed that he does not know whether his father or any other relative had obtained necessary permission from Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 15/33 Delhi Cantonment Board for carrying out construction of 1st floor. He has further deposed that the hot air emitted towards his roof from the window A/C installed in the house of the defendant no. 2. H e h a s a d m i tt e d t h a t the wall on which the said A/C is affixed belongs to defendant no. 2 only.
He has further deposed that he has affixed floor tiles on the land in front of her shop. He has admitted that said land belongs to Delhi Cantonment Board an d h e h a s not sought prior permission from Delhi Cantonment Board before affixing these tiles. He has further deposed that d efendant no. 2 had opened the door in dispute in the year 2001-02. He has further deposed that he has not made any complaint against the aforementioned act of defendant no. 2 with Delhi Cantonment Board. He has denied that the defendant no. 2 has not violated any bye law or terms and condition of Delhi Cantonment Board vis-a-vis the construction of his property.
He has denied that defendant no. 2 has not caused any damage or loss to him at any point of time or that he has filed a false suit or that he is deposing falsely.
8. Testimony of PW-2, Sh. Pawan Kumar: The said witness has been working as J.E (Civil) with Delhi Cantonment Board, New Delhi and deposed that he has brought the summoned record i.e. reports prepared by him in respect of unauthorized construction in premises bearing No. II/46, Sadar Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 16/33 Bazar, Delhi Cantt. Delhi dated 19.07.2012 & 23.07.2012. He has proved his report as Ex. PW2/A & PW2/B respectively. He has further deposed that complaint had also been lodged by them with SHO, PS. Delhi Cantt. regarding the same and a complaint had also been filed before Ld. MM, Dwarka Courts, New Delhi. He has further deposed that notice under Section 248 of Cantonment Act had also been issued to the concerned Sh. Sudhir Sugandh and proved the same as Ex. PW2/C. The witness was not cross examined by defendants despite being given an opportunity.
9. Testimony of PW-3, Hira Lal, Preservation Assistant Department of Delhi Archives: The said witness has deposed that he has brought summoned documents i.e original sale deed dated 21.09.1964 and proved the same alongwith it's translated copy as Ex.PWl/2 . He has also produced the copy of the original sale deed and proved the same as Ex.PW3/l. The witness was not cross examined by defendants despite being given an opportunity.
10. Defence evidence: The defendants got themselves examined to prove their defence. The testimonies of the defence witnesses are discussed hereinbelow.
Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 17/3311. Testimony of DW-1, Sh. Sudhir Sugandh: He has tender evidence by way of affidavit Ex.DWI/A bearing my signatures at point A & B. He has relied upon the document i.e. Special Power of Attorney as Ex.DWI/I (colly) and sanction plan dated 17.12.1970 as Ex.DWl/2.
The said witness has been cross examined. In his cross examination, he has deposed that the abovesaid property number has been purchased by his mother from his Nani, Mamas and Massi in the year 1978 and he has not filed property documents of the owner i.e. his mother. H e h a s denied that common staircase between property No. Il/45/1& II/46/1 is meant for the exclusive usage of the said two properties and not meant for the usage by any other property.
This witness was shown the para No. 6 of his evidence by way of affidavit and asked that you had mentioned here that the common staircase is a part of property No. II/46/I, to which he admitted. He has admitted that he has filed the sanction plan Ex.DWl/2 mentioned in para 6 of his affidavit. He has deposed that DW2 is the owner of the property No. II/45/2, Sadar Bazar Delhi Cantt., New Delhi and in the year 2010-2011, property No. II/46/1 got vacated from it's erst while tenant Kadimi Sweets and thereafter, they received the possession of the same. He has further deposed that he has not demolished the said property, however, he has carried out only Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 18/33 repair work. He has admitted that the plaintiff filed complaint against him before Delhi Cantonment Board alleging unauthorized constructions and the premises of the same, two notices under Section 247/248 Delhi Cantonment Board have been issued to him.
The said witness has been confronted with one photograph Ex.DWI/PI in respect to property No. II/46/1, he replied that first floor of said property belongs to him. He has deposed that the pillars installed in Ex.DWI/Pl starts from ground floor only.
He was also confronted with one photograph i.e. Ex.DWI/P2 and asked whether the said door has been installed by him, if yes, then in which year, to which, he replied that the said door had not been installed by him, however, the same exits since long, which has been reinstalled by his brother somewhere in 1990s when he purchased the said property, which existed as ground floor, first floor and half constructed floor above first floor.
He has denied that when his brother purchased the said property, it comprised of only ground floor. He has deposed that at present, property no. II/45/2 comprises of ground floor, first floor, second floor and one room on third floor. He has admitted that he had filed an application seeking permission for repair in respect to property No. II/46/1, Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 19/33 however, he cannot say whether he got the said permission or not. He has denied that he is deposing falsely.
12. Testimony of DW-2, Sh. Sunil Sungandh: He has tender h i s evidence by way of affidavit Ex.DW2/A bearing his signatures at point A & B. He has relied upon the document i.e. Special Power of Attorney as Ex.DW2/l (colly).
The said witness has been cross examined. In his cross examination, he has deposed that the property number II/45, Sadar Bazar, Delhi Cantt. has been purchased by him in the year 1995 which comprises of two parts i.e. II/45/l which is in the occupation of plaintiff and the rest of the part is with h i m , which is II/45/2, Sadar Bazar, Delhi Cantt. He has deposed that he has not filed property documents. He has denied that common staircase between property No. II/45/2 & I I / 4 6 / I is meant for the exclusive usage of the said two properties and not meant for the usage by any other property. He has admitted that the staircases were pre-existing in the portions of property No. II/45/2, which is existing today also.
The said witness was shown para No. 7 of his evidence by way of affidavit and asked that have you mentioned here that the common staircase is apart of property No. II/46/I, to which, he replied in the affirmative.
Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 20/33He has admitted that he is also relying on the sanction plan Ex.DW1/2 mentioned in para 7 of his affidavit.
He has further deposed that in the year 2010-2011, property No. Il/46/1 got vacated from it's erst while tenant Kadimi Sweets and thereafter, t h e y received the possession of the same. He has further deposed that he had not demolished the said property, however, his brother Sudhir Sugandh had carried out only repair work. He has admitted that the plaintiff filed complaint against DWI before Delhi Cantonment Board alleging unauthorized constructions and the premises of the same, two notices under Section 247/248 Delhi Cantonment Board have been issued to DWI.
The said witness has been confronted with one photograph already Ex.DW1/PI in respect to property No. II/46/1 and asked to which portion of said property the same belongs to. He replied that he is not aware. He has deposed that the said door has not been installed by him, however, the same exists since a long time which has been reinstalled/ repair by me somewhere in 1990s when he purchased the said property, which existed as ground floor, first floor, second floor and one room alongwith toilet and bathroom on third floor. He has denied that he has put any machinery, badarpur or cement on the roof of property No. II/45/1 or that when he purchased the said property, it comprised of only ground floor. He has deposed that at present, property no. II/45/2 comprises of ground floor, first Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 21/33 floor, second floor and one room alongwith toilet and bathroom on third floor. He has denied that he is deposing falsely.
13. Final arguments: Final arguments were heard on behalf of both the parties.
14. Findings: My issue wise findings are as under:
Issue No. 1: Whether the plaintiff is entitled to the relief of possession, mandatory injunction, declaration and damages as prayed for? OPP It is observed that during the pendency of proceedings, the plaintiff and the defendant no. 1 had arrived at a settlement qua certain aspects and in this regard a "Mutual Consent Agreement" dt. 04.02.2022 was filed which was taken on record vide order dt. 21.03.23. Thereafter, at the stage of final arguments, the plaintiff had submitted that he is not pressing for prayer "a" of his plaint wherein he had sought decree of possession of the portion under the staircase of the suit property and also prayer "b" of his plaint to the extent wherein he had prayed that defendants be directed to remove the air conditioners as the same have been satisfied. The same was also recorded vide his separate statement dt. 23.03.24.
Ld. counsel for plaintiff has sought a decree of mandatory injunction against the defendants praying that they be Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 22/33 directed to close the door in property no. II/45/2 Sadar Bazar, Delhi Cantt opening towards property no. II/45/1 Sadar Bazar, Delhi Cantt.
In this regard, it is argued by Ld. Counsel for the defendants that in his cross-examination, plaintiff had stated that defendant no. 2 had opened the door in dispute in 2001-02 against which he had not made any complaint to Delhi Cantt. Board. He further submits that the instant suit has been filed in 2015 which is barred by the law of limitation as it is not brought within 3 years of the accrual of cause of action as per section 113 of the Limitation Act, 1963. He further submits that it is settled law that such a suit for injunction should be instituted without any delay. Ld. counsel has further submitted that even though no separate issue was framed qua limitation however the Court is duty-bound to look into the said aspect even if no separate issue of limitation is framed. Reliance is also placed on Section 3 of the Limitation Act, 1963 in support of the submission that whether the defence of limitation is set up or not, the trial Court is bound to reject the time barred claim. It is submitted that issue of limitation can be raised by the defendants at any stage.
Per Contra, Ld. Counsel for Plaintiff submits that law of limitation does not apply to suit for injunction as it is a continuing cause of action. He further submits that defendant no. 2 cannot claim as a matter of right to open the door towards the property of plaintiff.Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 23/33
Section 3 of the Limitation Act provides that if a suit is prima facie barred by limitation even if no plea has been raised by the defendant, it is the duty of the Trial Court to consider and to dismiss the suit which has been preferred beyond limitation. Section 3(1) reads as under.-
"Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence"
In the case of P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276, the Hon'ble Supreme Court ruled as under:
"Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
Thus, it is well settled principle of law, as laid down in the aforementioned case, that law of limitation has to be stringently followed, in view of the mandate of Section 3(1) of Limitation Act. Section 5 of the said Act does not apply to suits, therefore there cannot arise any question of condonation of delay in filing the suit.
Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 24/33Limitation Act, 1963 does not provide any specific article which governs suits pertaining to injunctions. In such a scenario, any such suit is governed by Article 113 of the Act which is a residuary article and prescribes a limitation period of three years. Section 113 of Limitation Act reads as follows:
"Any suit for which no period of limitation is provided elsewhere in this Schedule and the period of limitation is three years from the time when the right to sue accrue"
In this regard, I find support from the decision passed by Hon'ble High Court of Madras in R. Kumar vs. G.Jaganmoorthy S.A.No.674 of 2015 decided on 08.08.2017 wherein it has been held that:
"We do not find any reason to differ with the opinion expressed by the Division Bench which to us appears to be the correct view of the provisions of law. There is no separate Article provided under the Limitation Act for a suit for injunction. So a suit for injunction has to be governed by the residuary Article i.e. Article 113. Under this Article, a suit can be filed within 3 years from the date of accrual of the cause of action."
Thus, I do not find any merit in the argument of Ld. Counsel for the plaintiff that law of limitation does not apply in a suit for injunction as it is a continuing cause of action. Once it is held that a suit praying for mandatory injunction is to be filed within three years from the date of accrual of cause of action, I Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 25/33 shall now examine the facts of the case. In his cross- examination, plaintiff had admitted that defendant no. 2 had opened the door in dispute in 2001-02. The instant suit has been filed in 2015 which is way beyond the statutory limitation period of three years. Accordingly, it is held that prayer of plaintiff for a decree of mandatory injunction is barred by law of limitation.
I shall now proceed to the next prayer of the suit. Plaintiff has sought a decree of declaration that the defendant no. 2 have no right to enter the stair case between property no. II/45/1 Sadar Bazar, Delhi Cantt and property no. II/46/2 Sadar Bazar, Delhi Cantt. During the course of arguments, Ld. Counsel for the plaintiff submitted that the aforesaid prayer suffers from a minor typographical error as the said staircase is between property no. II/45/1 Sadar Bazar, Delhi Cantt and property no. II/46/1 Sadar Bazar, Delhi Cantt.
At this stage, it is again essential to examine whether the aforesaid prayer of plaintiff for a decree of declaration is within limitation. Article 56 to 58 of the Limitation Act, 1963 pertain to suits for declarations. Article 56 of the said Act deals with declaration qua forgery of an instrument and Article 57 deals with declaration qua adoption. Article 58 of the Act is the residuary clause for all other suits of declaration prescribing a limitation period of three years from the date when the right to sue first accrues. Thus, in the instant matter, Article 58 of the Limitation Act shall apply. Accordingly, it is held that the instant Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 26/33 suit seeking declaration in question should have been filed within three years of accrual of cause of action.
It has been deposed by DW1 in para 7 of his evidence by way of affidavit that there is a door opening towards property no. II/45/2 Sadar Bazar, Delhi Cantt. and there is a common staircase which is being used by occupants of aforesaid property for ingress-egress to the same. He has further stated that the door exists since 1980s and has only been re-installed in the property in early 1990s. DW-2 has also deposed the same in para 7 of his evidence by way of affidavit.
In his cross-examination, DW1 had stated that the door in question which provides residents of property no. II/45/2 Sadar Bazar, Delhi Cantt. access to the staircase in question existed since long and he had only reinstalled/repaired the door somewhere in 1990s. DW2 had also stated the same in his cross- examination. No further questions were put to the said witnesses in their cross-examination qua their assertion that the said door existed since 1980s or that the same was used to access the common staircase by the residents of property no. II/45/2 Sadar Bazar, Delhi Cantt. since 1980s.
Be that as it may, as has been observed above, in his cross-examination, plaintiff himself has stated that defendant no. 2 had opened the door in dispute in 2001-02. Even if it is to be assumed that the said door was opened by defendant no. 2 in Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 27/33 2001-02 for using the staircase in question, then also the suit should have been brought within a period of three years.
The instant suit has been filed in 2015 which is way beyond the statutory limitation period of three years. Accordingly, it is held that prayer of plaintiff for a decree of decree of declaration that the defendant no. 2 has no right to enter the staircase in question is barred by law of limitation.
In his next prayer, plaintiff has sought damages to the tune of Rs. 50,000/- alongwith interest for causing damage to the roof of his property. The proof of actual damage or loss caused is a sine qua non in this respect. To prove the damages, plaintiff has relied upon six photographs Ex. PW1/8 however the same have been objected to, qua mode of proof, as the same are not filed along with their negatives nor are supported with any certificate under Section 65B of Indian Evidence Act. In his cross- examination, plaintiff has stated that he does not know if any negatives have been filed of the photographs in question. He further stated that he was not aware if the photographs are supported by any certificate under Section 65B of Indian Evidence Act.
It remains unclear whether the photographs Ex. PW1/8 were clicked by a traditional camera or by a digital camera. Be that as it may, perusal of record reflects that there is neither any certificate under Section 65B of Indian Evidence Act nor the Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 28/33 negatives of the photographs that have been filed on record. In such a scenario, I am of the opinion that the said photographs cannot be relied upon. Further, Plaintiff, in his cross- examination, has stated that he has not filed any document to show the value of stock/articles that were damaged. He also stated that no document has been filed by him to suggest the amount of loss caused to him. Accordingly, I am of the opinion that plaintiff has failed to prove if any damage has been caused to him on account of conduct of the defendants. Accordingly, it is held that the prayer of the plaintiff seeking damages is hereby declined.
For reasons stated in the preceding paragraphs, this issue is decided against the plaintiff.
Issue no. 2: Whether the plaintiff has no locus standi to file the present suit? OPD Issue No. 3: Whether the plaint does not disclose any cause of action? OPD Issue No. 4: Whether the plaintiff's suit is not maintainable? OPD Issue No. 5: Whether the plaintiff suit is barred under Section 41 (i) and (j) SRA? OPD I shall deal with the aforesaid issues jointly. The onus to prove the aforesaid issues was on the defendants. Ld. Counsel Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 29/33 for the defendants submits that plaintiff has no locus standi to file the instant suit and the plaint does not disclose any cause of action as the plaintiff has not filed any title deeds or building sanction plan to prove that staircase in question belongs to him. He further submits that plaintiff has no personal/exclusive interest in the instant matter as the staircase in question is a common staircase of all the parties thereby instant suit being hit by Section 41(j) of the Specific Relief Act, 1963. He further submits that vide instant suit, plaintiff is seeking 'negative declaration' which is not maintainable. He has placed reliance on Mool Raj vs Atma Ram AIR 1986 J&K 24 in this regard.
Ld Counsel for the plaintiff has submitted that the plaintiff is in possession of property no. II/45/1 Sadar Bazar, Delhi Cantt. He further submits that sale deed of the said property is in the name of plaintiff's father is Ex. PW1/2 (OSR). He further submits that "Mutual Consent Agreement" dt. 04.02.2022 entered into between plaintiff and defendant no. 1 which is already on record also acknowledges that the staircase in question is common between plaintiff and defendant no. 1. Lastly, he submits that his right to use the staircase in question is also not contested by defendant no. 2.
Section 41(j) of Specific Relief Act, 1963 mandates that an injunction cannot be granted where the plaintiff has no personal interest in the matter. Further, it was held in Mool Raj vs Atma Ram AIR 1986 J&K 24 that a suit simpliciter for a Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 30/33 negative declaration about the status of any person is not maintainable without showing as to in what manner status of the other side has affected the civil rights of the plaintiff. In the instant matter, it is the case of the plaintiff that a decree of declaration be passed that occupants of property no. II/45/1 and II/46/1 only are entitled to use the staircase in question. Accordingly, he has prayed that a decree of mandatory injunction be also passed directing defendant no. 2 to close the door giving him access to the said staircase.
"Mutual Consent Agreement" dt. 04.02.2022 entered into plaintiff and defendant no. 1 which is already on record acknowledges that the staircase in question is common between the plaintiff and defendant no. 1. DW1 and DW2 have stated, in their cross-examination, that the staircase in question is common for occupants of property no. II/45/1, II/45/2, II/46/1 and II/46/2.
In such a scenario, a decision on the said prayer of the plaintiff seeking declaration that occupants of property no. II/45/1 and II/46/1 only are entitled to use the staircase in question, has a direct bearing on his civil rights. It shall decide as to who all can use the common staircase alongwith him. Accordingly, in my opinion, reliance placed by Ld. Counsel for the defendants on Mool Raj vs Atma Ram AIR 1986 J&K 24 is misplaced as the same is not applicable to the facts of the instant case. For the same reason, it cannot be said that plaintiff has no personal interest in the matter. Accordingly, I am of the opinion Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 31/33 that the instant suit of the plaintiff is maintainable and is not barred by Section 41(j) of the Specific Relief Act, 1963.
Further, as has been discussed above, sale deed of property no. II/45/1 Sadar Bazar, Delhi Cantt is in the name of plaintiff's father Ex. PW1/2 (OSR). It is his case that the staircase between the said property and property no. II/46/1 was common only for occupants of both the properties. "Mutual Consent Agreement" dt. 04.02.2022 entered into plaintiff and defendant no. 1 acknowledges that the staircase in question is common between the plaintiff and defendant no. 1 and both are equal owners of the same. Though, defendant no. 2 is not a party to the said agreement, however, in light of the aforesaid documents, I am of the opinion that plaintiff had locus standi to file the instant suit and his plaint duly discloses cause of action.
Another point that has been raised by Ld. Counsel for the defendants is that since plaintiff, in his cross-examination, has admitted that the lease of the suit property has already expired. Accordingly, it is submitted that plaintiff is an encroacher on govt. Land because of which the instant suit is barred by Section 41(i) of the Specific Relief Act, 1963.
Section 41(i) of the aforesaid act provides that an injunction cannot be granted when the conduct of the plaintiff has been such as to disentitle him to the assistance of the court. In my opinion, although the fact that the lease of the property has Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 32/33 expired gives a right to the lessor to take legal action against the lessee; however merely because the plaintiff continues to be in possession of the property despite the expiry of his lease does not qualify as conduct that shall disentitle the plaintiff from the assistance of the Court against the defendants.
In light of the aforesaid discussion, the issue no. 2 to 5 are hereby decided against the defendants.
Issue No. 6: Whether the plaintiff has not valued the suit? OPD The onus to prove the instant issue was on the defendants. No evidence whatsoever was led by either of the defendants to prove the instant issue. During the course of final arguments, Ld. Counsel for the defendants conceded to the same. Accordingly, the instant issue is decided against the defendants.
Issue No. 7: Relief.
In view of the above discussion, the suit of the plaintiff is hereby dismissed. There are no orders as to costs.
15. File be consigned to the record room after necessary compliance.Digitally signed by SIDDHANT
SIDDHANT SIHAG Announced in the open SIHAG Date: 2024.03.30
court today i.e. 30.03.2024. 16:34:54 +0530 Siddhant Sihag ACJ-CCJ-ARC/NDD, PHC New Delhi: 30.03.2024 Civil Suit No. 57337/16 Surinder Kumar Mangal versus Prem Lata & Anr. Page No. 33/33