Delhi District Court
Mr. Anil Thakur vs Mr. Gajraj Singh on 16 February, 2013
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
SENIOR CIVIL JUDGE (SOUTH),
SAKET COURTS, NEW DELHI.
MCA No. 05/09
Unique Case ID No. 02403C0043452009
1. Mr. Anil Thakur
2. Mr. Chandra Mohan Thakur
Both S/o Mr. Ram Shanker Thakur
Both R/o K25, Jaitpur Extn.,
New Delhi 110 044.
Appellants/plaintiffs
Versus
Mr. Gajraj Singh
S/o Mr. Lalta Prasad
R/o A388, Jaitpur Extension,
New Delhi.
Respondent/defendant
DATE OF PRESENTATION OF APPEAL : 21.02.2009
DATE OF RESERVING JUDGMENT : 12.02.2013
DATE OF PRONOUNCEMENT OF JUDGMENT: 16.02.2013
JUDGMENT
1. This appeal is directed against the order dated 20.01.2009 passed by Shri Manish Khurana, learned Civil Judge, Central District, MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 1 of 13 Tis Hazari Courts, Delhi on an application U/O 39 Rule 1 and 2 r/w Section 151 of The Code of Civil Procedure (in short "CPC") in suit bearing No. 288/2008 titled as 'Anil Thakur & Others v. Mr. Gajraj Singh.
2. On issuance of notice, the respondent appeared to contest the appeal. The respondent also filed a formal reply to the appeal of the appellants.
3. The appellants filed the suit for permanent injunction alongwith an application U/O 39 Rule 1 and 2 r/w section 151 CPC for interim injunction against the respondent to restrain the respondent, his agents, associates and servants etc from depriving the appellants from use of gali and from making encroachment upon the gali as shown in red colour in the site plan till the disposal of main suit.
4. In nutshell, the appellants' case is that they are owner/landlord and are in possession of premises bearing no. K25, measuring 100 sq. yds forming part of khasra no. 140 situated in village Jaitpur as shown in green colour in the site plan (hereinafter referred to as "suit property".). The appellants have stated that after purchasing the suit property, they made construction therein and have been residing alongwith their family members. According to appellants, in the west side of the property, there is 15 ft wide road and in the south side, there is 5ft wide gali. The gali in dispute has been shown in red colour MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 2 of 13 in site plan. They have pleaded that in the south side of the property, there exists a 5 ft wide gali and their one door and two windows open towards the gali and one cooler is fitted in the window. The claim of appellants is that they have been enjoying the gali in dispute since the date of purchase of their property. The appellants have alleged that the the respondent on the basis of a forged Power of Attorney wants to grab and encroach upon the gali and deprive them of the use of gali. They have further alleged that the respondent claims the gali as his plot. Mr. Balwant Singh from whom the respondent is alleged to have purchased his property has revoked the Power of Attorney executed in his favour. The respondent on 12.10.2007 compromised the matter in the police station and accepted the existence of gali. The grievance of appellants is that even after compromising the matter, the respondent is conspiring to encroach upon the gali and deprive them of the use of gali forcibly. The appellants have averred that the respondent has no right, title or interest in the gali and it is for the use of people of the locality.
5. The suit of the appellants was resisted by the respondent through written statement. The respondent contended that the property of appellants is open from front side only and there exists the properties of other on three sides. The respondent claims to have purchased a plot measuring 5ft X 30 ft i.e 16.5 sq.yds out of khasra MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 3 of 13 no. 140 of Village Jaitpur, KBlock, Jaitpur Extension, PartI, New Delhi from Mr. Balwant Singh son of Shri Khanda Singh R/o H. No. 148, Village Jaitpur, Badarpur, New Delhi for lawful sale consideration. According to respondent, Mr. Balwant Singh was the recorded owner of the land as per the revenue records prepared by the revenue staff. It is stated that the plot of respondent and of the appellants is situated adjoining to each other and there is no gali in between the said two plots. The respondent has disputed the site plan filed by the appellants. The respondent filed his own site plan showing the situation and location of his house and also of the appellants. It is averred that there is road of 15 ft wide towards western side of both the plots i.e of appellants and respondent and both are one side open whereas there exist properties of others on three sides of the appellants and that of respondent. The respondent has stated that the alleged gali of 5 ft which is being claimed by the appellants is in fact his plot and he purchased the same from the recorded owner of the land. According to respondent, there is no recorded owner in the name of Smt. Daropadi Devi from whom the appellants are claiming to have purchased the plot in their possession. The respondent contended that though the appellants are claiming to have purchased the property in their occupation in the year 2001 but they illegally opened the door and windows towards the side of his MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 4 of 13 plot in an illegal manner. The appellants tried to encroach upon the side of the plot of respondent by opening door and window but the same was resisted by him. The appellants are stated to have opened the door on 21.01.2008. The respondent reported the matter to the police and the necessary action was taken by the police. The respondent has contended that on 21.04.2008, the appellants gave undertaking in writing to close the door opening towards the side of his plot from inside by 22.04.2008 but they did not close the door as promised by them. Rest of the averments made in the suit was denied by the respondent.
6. The respondent filed counter claim against the appellants alongwith his written statement wherein he prayed for directing the appellants to close the door and windows opened by them towards the side of his plot. He further prayed for restraining the appellants from causing any interference, hindrance or interruption in raising the boundary wall by him around his plot.
7. The appellants filed replication to the written statement of respondent wherein they controverted and denied the averments made in the written statement and have reasserted their stand as stated in suit.
8. The application of appellants filed U/O 39 Rule 1 and 2 r/w section 151 CPC alongwith their suit was dismissed by learned Civil MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 5 of 13 Judge on 20.01.2009 by holding that the appellants failed to make out a prima facie case in their favour. The balance of convenience and the irreparable loss was also not in favour of appellants. It was held that the appellants failed to show their easementary rights towards the gali in dispute.
9. The appellants feeling aggrieved by the impugned order have challenged the same in appeal.
10. I have heard and considered the submissions advanced by learned counsel for both the parties.
11. It was submitted by learned counsel for appellants that the learned trial court has erroneously decided that the appellants are claiming easementary rights over the plot of the respondent while there are various documents on record, which prove that it is a gali and not the plot of the respondent. It was further submitted that the Khasra Girdawari in respect of the suit property relied upon by the respondent reveals that the property lies in the name of Mr. Balwant Singh who has allegedly sold the suit property to respondent. The appellants contended that the recorded owner had sold the entire land 13 years ago in the shape of plots through his attorney/brother Mr. Harpal Singh vide GPA and Agreement to Sell etc., and now the respondent in collusion with Mr. Balwant Singh on the basis of alleged GPA and Agreement to Sell etc., is trying to encroach upon MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 6 of 13 the land that was left as gali at the time of plotting of the land in 1995. Learned counsel for appellants further submitted that the learned trial court failed to appreciate that the recorded owner of the land Mr. Balwant Singh himself declared that the suit property is a gali and the same was left at the time of plotting of the land. The learned trial court failed to consider the documents on record wherein both the parties to the suit admitted in writing that the suit property is a gali and they will not misuse the same. The trial court also failed to consider the certificate issued by Resident Welfare Association of Jaitpur Extension, wherein the association has certified that beside the property of plaintiff, there is a gali of 5 feet. It was further submitted that the learned trial court erred while deciding that respondent is lawful purchaser of the property. Counsel for appellants prayed for setting aside the impugned order and allowing their application U/O 39 Rule 1 and 2 r/w section 151 CPC.
12. Per contra, learned counsel for respondent opposed the appeal filed by the appellants submitting that the learned trial Court has passed a well reasoned order, which does not suffer from any illegality or infirmity. He further submitted that the learned Court has duly appreciated the documents filed by both the parties and discussed all the three necessary ingredients, which are required for grant of injunction in favour of a party. It was prayed to dismiss the appeal MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 7 of 13 filed by the appellants.
13. I have given my thoughtful consideration to the submissions advanced by learned counsel for both the parties and gone through the entire material available on record.
14. The case of the appellants as pleaded in the suit are contrary to the documents existing in their favour. The appellants are stated to have purchased the suit property from Smt. Daropadi Devi vide GPA dated 22.09.2001 and Agreement to Sell, Affidavit and Will all notarized on 26.09.2001. In the receipt no date is mentioned. A bare look at Agreement to Sell executed by Smt. Daropadi Devi in favour of appellants shows that the suit property is bounded as under:
East : Plot of Kashmir Singh
West : 15 ft Road
North: 5 ft Gali
South : Plot of Ram Kumar.
15. Smt. Daropadi Devi, who is stated to have sold the suit property to appellants, is alleged to have purchased the suit property from Mr. Harpal Singh vide GPA, Agreement to Sell, Affidavit and Receipt all dated 12.05.1995. In the GPA executed by Mr. Harpal Singh in favour of Smt. Daropadi Devi, the suit property is bounded as per the description as mentioned in Agreement to Sell executed by Smt. Daropadi Devi in favour of appellants. In this GPA also, in the MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 8 of 13 south of suit property, the plot of Mr. Ram Kumar has been shown. In the Agreement to Sell executed in favour of Smt. Daropadi Devi by Mr. Harpal Singh, the boundaries of the suit property have not been disclosed.
16. Thus from the documents executed in favour of appellants by Smt. Daropadi Devi, it is seen that in the south of suit property there is plot/house of Mr. Ram Kumar. On the contrary to it, the appellants in para no. 3 and 4 of the suit have stated that there is 5 ft wide gali in the south side of their property. The contention of the appellants is not supported by the documents which are in their favour. The site plan has been filed by the appellants as per the pleadings made in the suit. Since the documents of the appellants speak otherwise, therefore, the contention of the appellants cannot be believed that there is a 5 ft wide gali in the south side of their property.
17. The respondent is stated to have purchased his property i.e a plot measuring 5ft X 30 ft (16.4 sq.yds) out of khasra no. 140 of Village Jaitpur, New Delhi from Mr. Balwant Singh son of Mr. Khanda Singh R/o House no. 148, Village Jaitpur, Badarpur, New Delhi vide General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Receipt, Deed of Will, Possession Letter and No Objection Certificate all dated 03.10.2007. Mr. Balwant Singh was the recorded owner of the property purchased by respondent as is clear MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 9 of 13 from the Khasra Girdawari filed by respondent. Mr. Balwant Singh after receiving a sale consideration of Rs. 20,000/ from the respondent executed the title documents in his favour and also handed over possession of the property to him.
18. None of the documents existing either in favour of appellants or in favour of Smt. Daropadi Devi shows that the possession of the suit property was ever handed over to them. No document has been placed on record to show how Mr. Harpal Singh was the owner of the property in dispute and in what capacity he sold the property to Smt. Daropadi Devi. No document in favour of Mr. Harpal Singh has been filed on record to show that he was ever authorized by Mr. Balwant Singh to sell the suit property to any other person.
19. The allegation of appellants is that Mr. Balwant Singh has cancelled the General Power of Attorney executed in favour of respondent on 15.10.2007. The photocopy of cancellation of GPA has been placed on record by the appellants to prove their contentions. A bare look at the cancellation of GPA filed on record by the appellants shows that the description of the property i.e boundary of the suit property has not been described. On the other hand, the respondent has filed original affidavit of Mr. Balwant Singh, the recorded owner, on record to show that the documents executed in his favour in respect of his property has never been cancelled. In his affidavit dated MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 10 of 13 22.09.2008, Mr. Balwant Singh has categorically mentioned about execution of title documents dated 03.10.2007 in favour of respondent. He also stated that he gave the actual physical possession of the land to respondent on 03.10.2007 at site. He has stated that all the documents executed by him in favour of respondent dated 03.10.2007 have not been revoked / cancelled by him till date. He has further stated that the Revocation Deed dated 15.10.2007, if any, is a forged and fabricated document and he has not executed or signed the same.
20. The appellants have filed only the photocopy of cancellation of the GPA dated 15.10.2007. On the other hand, respondent has filed the original affidavit of Mr. Balwant Singh wherein he has denied the cancellation of title documents in favour of respondent. In these circumstances, the version of the appellants cannot be believed at this stage that Mr. Balwant Singh has cancelled the documents executed in favour of respondent. Both the parties have to prove their documents in accordance with law during the course of their evidence in the Court to prove their genuineness.
21. Perusal of record shows that on 15.10.2007, Mr. Balwant Singh made complaint to SHO Police Station Badarpur, New Delhi wherein he admitted of execution of General Power of Attorney in favour of respondent in respect of gali, which is stated to be of 5 ft. The appellant Mr. Anil Thakur in his statement given to police on MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 11 of 13 21.04.2008 stated that he had opened his door in the night of 21.01.2008 towards the space of 5ft X 30 ft. He undertook to close his door, which was opened by him towards the property of respondent.
22. From the documents placed on record in favour of respondent, it is seen that the land measuring 5ft X 30 ft i.e 16.5. sq. yds of khasra no. 140, Village Jaitpur, KBlock, Jaitpur Extension, Badarpur, New Delhi belongs to respondent. The documents existing in favour of respondent has not been cancelled by the recorded owner Mr. Balwant Singh as stated by him in his affidavit dated 22.09.2008. The appellants have failed to show any material on record that there is 5 ft. gali to the south of their property. The certificate issued by RWA regarding the existence of gali is of no consequence in the face of title documents executed by recorded owner in favour of respondent.
23. The appellants in their case have pleaded that since the date of purchase of their property, they have been in use and enjoying the gali, which exist since the time when the colony came in existence. The appellants are stated to have purchased the suit property in the year 2001. The appellant Mr. Anil Thakur himself admitted before the police that he opened his door towards the alleged gali i.e the property of respondent in the night of 21.01.2008. The appellants do not have any easementary right in the property of others. The appellants constructed their house after purchasing the suit property in the year MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 12 of 13 2001. They opened the door and windows towards the property of respondent after constructing their house. They have failed to show any easementary right in the property of respondent.
24. The learned trial court has discussed the golden principles required for grant of injunction on the basis of pleadings of the parties and the documents available on record.
For the reasons discussed above, no ground for setting aside the impugned order is made out. The impugned order does not suffer from any illegality or impropriety. Accordingly, the appeal filed by the appellants is dismissed. The order dated 20.01.2009 passed by learned Civil Judge is upheld.
25. Nothing expressed in the order shall tantamount to be expression on merits of the case. The trial court shall pass the final order on merits without being influenced of the observations made by this Court.
26. A true copy of the order alongwith the TCR be sent to the court concerned. Appeal file be consigned to record room.
(Announced in open Court (RAJ KUMAR TRIPATHI)
on 16.02.2013) SENIOR CIVIL JUDGE(SOUTH)
SAKET COURTS, NEW DELHI.
MCA 05/2009 Anil Thakur & Anr v. Gajraj Singh 13 of 13