Delhi District Court
Virender Singh vs Kuldeep S/O Om Prakash on 31 October, 2022
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No. 314/10,
299/11/10, 205/14 and 16665/16
CNR No. DLSW010001082010
IN THE MATTER OF:
Virender Singh
S/o Late Sh Harpal Singh
R/o WZ 70-294B
Near Tagore School
Hari Nagar, Delhi
Also at:
Village & Post office Bijwasan
New Delhi ... Plaintiff
vs.
1. Kuldeep S/o Om Prakash
R/o Village & Post office Bijwasan
New Delhi
2. Om Prakash s/o Late Sh Nihal Singh
R/o Village & Post office Bijwasan
New Delhi
3. Balbir Singh S/o Sh Chhotu Ram
R/o Village & Post office Bijwasan
New Delhi
4. MCD, Through The Commissioner
Town Hall, Delhi -06
5. Sh Mahabir Singh
S/o Late Sh Chhotu Ram
R/o House No. 355/2, Village & PO
Bijwasan, New Delhi - 110061 ... Defendants
CS DJ ADJ No. 16665/2016 Page No. 1/18
Date of institution of suit: 10.12.2010
Date of judgment reserved: 17.09.2022
Date of pronouncement of judgment: 31.10.2022
JUDGMENT
1. The plaintiff filed the present suit seeking the relief of permanent and mandatory injunction against the defendants on the ground that he has purchased the plot No. 355/2 measuring 159 sq yds situated within the extended lal dora abadi of Village Bijwasan New Delhi (hereinafter referred as Suit property') by way of registered sale deed dated 02.03.2010 from Smt Laxmi his maternal grandmother and the same is shown in red colour in the site plan. It is further stated that defendant No.1 is the owner of adjacent property measuring 100 sq yds which was purchased by him from Laxmi Devi too and the same is shown in the green colour in the site plan. It is further stated that the passage to the property of the plaintiff and defendant NO.1 is common and is an open space which is shown from point A and B in the site plan.
2. It is further stated that the defendant No.2 is the father of defendant No.1 while defendant No.3 is a neighbour as well as distant relative of the plaintiff and wanted to grab the property of the plaintiff and in this regard he has filed a suit for specific performance against Smt Laxmi Devi by forging certain papers in respect of the suit property and in the said suit the application under Order XXXIX Rule 1 and 2 of the defendant No.3 was rejected, which infuriated the defendant No.3 and therefore, defendant No.3 alongwith defendant CS DJ ADJ No. 16665/2016 Page No. 2/18 Nos. 1 and 2 started harassing the plaintiff and even given threats to life and liberty of the plaintiff and his nani Smt Laxmi Devi and due to this constant threats they shifted from the suit property to another property bearing No. WZ-70, 294-B, near Tagore School Hari Nagar, New Delhi.
3. On 05.12.2010 the plaintiff when went to the suit premises found that defendant Nos. 1 and 2 were raising wall at point A to B of the site plan which is illegal and the same would block the passage of the plaintiff to his suit property. The plaintiff tried to resist the defendant Nos. 1 and 2 for raising the wall but in vain however, with the intervention of the respectable of the locality the defendants stopped the construction but threatened to raise the same as and when they get a chance.
4. On the basis of above pleadings the plaintiff filed the present suit from restraining the defendants from raising the construction of the wall and also to remove the construction already done by the defendant Nos. 1 and 2.
5. Defendant Nos. 1 to 3 filed their joint written statement and took the preliminary objections regarding the maintainability of the suit on the ground that under the garb of injunction the plaintiff is trying to seek the relief of declaration and the suit is also bad for mis- joinder of parties as defendant No.4 is neither necessary nor proper party, the suit is bad as it is not properly valued for the purpose of jurisdiction and court fee and lastly, the plaintiff in the sale deed has shown the suit plot as vacant and whereas in the site plan all the directions have been wrongly mentioned. In the sale deed, the boundaries have been shown as East- Gali 8.6 feet wide, West property of Sh. Chander, North- Property of Satpal and South property CS DJ ADJ No. 16665/2016 Page No. 3/18 of Balbir, thus due to wrong assertions of the plaintiff, the defendant no. 1 to 3 are free to deal with their property and in fact defendant no.2 has constructed the suit property long ago comprising of two rooms set in the suit property and also is residing therein.
6. On merits, it is the stand of the defendants that there is no plot No. 355/2 but in fact it is khasra No. 355/2 and the site plan filed by the plaintiff is wrong, incorrect and not as per site. Plaintiff has never been in possession of the suit property but defendant no.2. Similarly the property of defendant No. 1 is in khasra No. 360 as per the record of the patwari and the Aks shajra . It is further contended that there is no common passage but there is property of someone else and the plaintiff has wrongly mentioned the details. The defendants denied that they have ever tried to grab the property of plaintiff and in fact they are living with their own property and the wall being raised by the defendants does not form part of the suit property.
7. During the pendency of the suit, defendant No. 5 moved an application under Order I Rule 10 CPC and he was impleaded as defendant No. 5. In the written statement he also taken the preliminary objections that the plaintiff has no locus standi to file the present suit because he is neither the owner nor in possession of the suit property, the sale deed dated 05.03.2009 is a false and fabricated document and the sale deed is already challenged by the defendant Nos. 2 and 3 before the Civil Court and the said suit is still pending. The suit of the plaintiff is not maintainable as the suit is without any cause of action as the plaintiff was never in possession of the suit property and it is the defendants who are in possession being co-sharers as per their respective share under mutual settlement. It is further contended that the plaintiff filed the present suit by concealment of facts as the CS DJ ADJ No. 16665/2016 Page No. 4/18 defendant no.2 has also filed the suit for declaration agaisnt the plaintiff, further as the value of the suit property is more than 32 lakhs, this Court has no pecuniary jurisdiction to try the present suit and even the plaintiff has not affixed ad-valorem Court fee.
8. It is further contended by the defendant no.5 that the plaintiff was residing with Smt. Laxmi Devi and defendant no. 2 since his childhood and he very well knew about of the actual extent of constructions of pakka house on the suit property. It is further contended that the plaintiff deliberately shown the suit property as a vacant property in the sale deed dated 05.03.2009, whereas in the present suit, the plaintiff shown the suit property by including the area of gali i.e. 30 sq. yds approximately as part of the suit property which increases the area of the suit property to 189 sq yds, whereas the actual position is that the house has been constructed about 100 sq yds and property measuring 59 sq yds is vacant and the plaintiff resided in the house of 100 sq. yards since his childhood for more and than 30 years. It is further stated that as per the report of the local commissioner it stands established that the suit property is not vacant piece of land but it is a well constructed house exists in the suit property.
9. The defendant No.5 also taken the stand that Smt Laxmi Devi was having a share to the extent of 353 sq. yards and she had already sold 191 sq. yards vide sale deed dated 09.01.2009, 80 sq. yards forms part of the Gali and 100 sq. yards was given to defendant no.1 i.e. her grandson out of Khasra no. 355/2 and thus, she has already sold the excess land measuring 371 sq yds out of the entitled land of 353 sq yds and therefore, once she was not owner of any inch of land, the sale deed executed in favour of the plaintiff is null and void. Further, the plaintiff has concealed the details of the site plan on record in Civil CS DJ ADJ No. 16665/2016 Page No. 5/18 Suit no. 113/2010 and 662/2010 but disclosing only in Civil Suit no. 314/2010 i.e. present Suit.
10. It is further contended that the site plan annexed by the plaintiff with the sale deed and the site plan filed along with the present suit is self contradictory to each other but the site plan filed by the local commissioner is according to actual physical position of the plot in question. The suit of the plaintiff is bad for non-joinder of other co- sharers as necessary party and lastly, the suit of the plaintiff is not maintainable as per the mandate of Section 41 (h), (i) and (j) of the Specific Relief Act, 1963.
11. On merits, the defendant denied all the averments of the plaintiff except that the defendant no. 2 is the father of defendant no.1. It is his stand that Khasra no. 355/2 is ancestral property of defendant no.1 to 3 and 5 and all the defendants are co-sharer. The sale dated 05.03.2009 is null and void and is already challenged by defendant No. 3 i.e. Sh. Balbir Singh in Civil Suit No. 113/2010 titled as Balbir Singh vs. Smt Laxmi Devi and Ors and even defendant No.2 has challenged the sale deed in another suit bearing No. 662/10 titled as Om Prakash v. Smt Laxmi and Ors.
12. It is further the stand of the defendant no. 5 that the khasra no. 355/2 is not partitioned between the co-sharers by metes and bounds but the co-sharer have mutually partition the same and the alleged portion as shown in green and red colour is in possession of defendant No. 1 and 2 and the remaining portion is in possession of answering defendant, defendant No. 3, Sh. Satbir Singh, Ranbir Singh s/o Late Chottu Ram and Sh. Dorjee Wandi (Dewatsang) and Nandish Sarangal.
13. Apart from the above contentions, the defendant has taken the CS DJ ADJ No. 16665/2016 Page No. 6/18 stand similar to the stand taken by defendant Nos.1 to 3 and prays for dismissal of the suit.
14. In replication plaintiff denied the contentions raised by the defendants in the written statement and reiterated stand taken in the plaint.
15. It is relevant to observe that on the basis of the pleadings of the parties, the Predecessor of this Court appointed a local commissioner to visit the suit property with the directions to prepare a site plan with the help of draftsman and also to take photograph of the suit property. The local commissioner was also directed to see whether the suit property has excess from some other portion or not and in pursuant to the directions the local commissioner has filed his report on 06.01.2011 and the same was taken on record and the copies were supplied to the parties.
16. Thereafter the predecessor of this Court heard the arguments on the interim application under Order XXXIX, Rule 1 and 2 CPC filed by the plaintiff and in para No. 19 of the order observed as follows:-
19. Local commissioner has reported that there is no access to the suit property except the present existing one which is marked as point A in the site plan. Property of the plaintiff is shown in red colour and property of defendant Nos. 1 and 2 is shown in green colour in the site plan prepared by the LAC. Point A which is entrance to the property of plaintiff and defendant no.1 is shown in open space.
17. Further in paragraph No. 27 of the order, it is observed by the Court that "considering the pleadings of the parties, documents filed on record, report of LC and the arguments of the parties, it is appears that questions to be answered for deciding the application are, What is the Khasra No. of the land shown as open space in the site plan filed CS DJ ADJ No. 16665/2016 Page No. 7/18 by the plaintiff as also shown in the site plan of the Local Commissioner? Who is the recorded owner of the said open space? Whether the plaintiff has easementary right of necessity as there is no other access to the premises or whether plaintiff has implied grant of easementary right?
18. On the basis of the pleadings of the parties and the observations made as reproduced above, following issues were framed:-
(1) What is the khasra number of the land shown as open space in the site plan filed by the plaintiff as also shown in the site plan of the local commissioner? ... Onus to proof on parties (2) Who is the recorded owner of the said open space?
... Onus to proof on parties (3) Whether there is no other access to the premises of plaintiff except through open space shown in the site plan ? ...OPP (4) Whether the plaintiff has easementary right of necessity? ...OPP (5) Whether the plaintiff has implied grant of easementary right? ...OPP (6) Whether the plaintiff entitled to a decree of permanet injunction restraining the defendants from raising any construction as prayed in prayer A of the suit ? ...OPP (7) Whether the plaintiff entitled to a decree of mandatory injunction , as prayed in prayer B of the suit ? ... OPP (8) Relief
19. In order to prove his case plaintiff entered in the witness box as PW-1 and tendered his evidence by way of affidavit which is Ex PW1/A and identified his signature at points A and A-1. In the CS DJ ADJ No. 16665/2016 Page No. 8/18 affidavit the plaintiff reiterated the averments made by him in the plaint, which are not reproduced herein for the sake of brevity and the plaintiff relied upon the following documents:-
(i) Copy of sale deed - Ex PW1/1 and
(ii) Copy of site plan - Ex PW1/2
20. Plaintiff also produced his wife Smt. Sonam Singh as PW-2 and she tendered her evidence by way of affidavit which is Ex PW2/A and identified her signatures at point A and A-1. She has taken the stand similar to that of her husband and also relied upon the sale deed which is already exhibit Ex PW1/ 1. Thereafter plaintiff closed his evidence.
21. The defendant No.1 in order to prove his case entered the witness box as DW-1 and identified his signatures at points A and relied upon the following documents :-
(i) Copy of Sale deed dated 09.01.2009 is Ex DW1/1 (OSR);
(ii) Copy of Sale deed daed 05.03.2009 is Ex DW1/2 (OSR),
(iii) Copy of sale deed dated 23.02.2009 is mark A.
22. In cross examination conducted by the plaintiff admitted the following documents :-
(i) site plan prepared by the Local Commissioner as Ex DW1/DX-1.
(ii) Sale deed and Will - Ex DW1/DX-2 and Ex DW1/DX-3, respectively.
(iii) documents related to the electricity and water bill - Ex DW1/DX-
4 and Ex DW1/DX-5
23. The defendant No.3 in order to prove his case entered in the witness box as DW-3 and identified his signatures at points A and B. During the cross examination conducted by plaintiff, he admitted the report of the Local Commissioner and also the site plan Ex DW1/DX- 1(annexed with the report of the Local Commissioner).
CS DJ ADJ No. 16665/2016 Page No. 9/1824. The defendant No.5 in order to prove his case entered in the witness box as DW-5 and identified his signatures at points A and relied upon the documents i.e. Copy of Sale deed dated 09.01.2009 is Ex DW1/1 and Copy of Sale deed dated 05.03.2009 is Ex DW1/2 and mark A. Arguments:
25. The Ld. Counsel for the plaintiff has argued that the in the light of the Local commissioner report there is no iota of doubt that the only access to the house of the plaintiff is through the open space between the house of the plaintiff and the defendant no.1 and therefore, the defendants cannot raise boundary wall to block the passage of the plaintiff which is necessary for peaceful enjoyment of the property and prays for the decree of the suit alongwith costs.
26. Per Contra, the Ld. Counsel for the defendants has argued that the suit of the plaintiff is liable to be dismissed as he has not approached the Court with clean hands as in the sale deed on the basis of which the plaintiff is claiming himself to be the owner of the suit property, it is clearly mentioned that there is an 8.6 feet wide gali of 29 feet in length and the plaintiff has included the area of the gali in his house and now claiming that the only ingress and outgress to his house is through open space, whereas the open space is the property of defendant no.1 and the legal heirs of Chottu ram namely, Balbir Singh ( defendant no.3), Mahabir Singh(defendant no.5), Ranbir Singh, Satbir Singh and Kapil and they are within their right to raise the wall for the protection of their property and hence, no ground is made out for the grant of reliefs as prayed for by the plaintiff in the present suit and thus, the same may be dismissed with exemplary costs.
27. I have heard the rival contentions and carefully gone through the CS DJ ADJ No. 16665/2016 Page No. 10/18 case file.
Issue-wise Findings:-
Issue no.1,2 and 3 (1) What is the khasra number of the land shown as open space in the site plan filed by the plaintiff as also shown in the site plan of the local commissioner? ... Onus to proof on parties (2) Who is the recorded owner of the said open space? ... Onus to proof on parties (3) Whether there is no other access to the premises of plaintiff except through open space shown in the site plan ? ...OPP
28. The issues are taken together being interconnected and requires common discussion .
29. From the Pleadings of the parties, it is the case of the plaintiff that there is open space between the plot of the plaintiff and the defendant No. 1 which is used as common passage for ingress and egress by both of them. However, in the joint written statement Filed by defendant No. 1 to 3, it is their stand that there is no common passage but at the spot there is property of someone else and in fact the defendant no.2 is in possession of the suit property, on the other hand as per the defendant No. 5, the site plan filed by the plaintiff is not according to actual position on the spot and the site plan filed by the Local Commissioner is correct and according to the actual position on the spot. As per him the portion shown in green and red color is in possession of defendant No. 1 and 2 and the remaining portion is in his possession as well as in the possession of defendant No. 3 and their brothers and also with one Dorjee Wandi and Nandish Sarangal.
CS DJ ADJ No. 16665/2016 Page No. 11/1830. It is pertinent to mention that in his evidence by way of affidavit the plaintiff reiterated the stand taken by him in the plaint and in his cross examination he specifically admitted that the direction of the suit property is wrongly mentioned in the Sale deed, in voluntary statement he deposed that the draftsman has wrongly shown in the site plan that the plot in the South direction of the suit Plot is in the name of the Sh. Balbir Singh, it is correct that there is vacant plot adjacent to the wall constructed by defendant No. 1 and 2. I do not remember who is the owner of the vacant plot. I do not know whether the owner of the vacant plot is the co-owner of Laxmi Devi. Except the above, the defendants failed to create any contradiction in the testimony of the plaintiff.
31. On the other hand the defendant No. 1, in his evidence by way of affidavit reiterated the stand taken by him in the joint written statement and in his cross-examination, he initially deposed that the common passage is his property and the Ownership of the property shown in red colour (i.e. suit property) in the site plan filed by the local commissioner Ex. DW1/DX-1 is with him and he can produce the documents related to the ownership of the property and his cross examination was deferred. In his further evidence, the defendant no.1 had produced the sale deed of his plot measuring 100 sq. yards as Ex. DW1-DX-2 and he admitted that the same relates to plot bearing khasra no.360 and the common passage is on this plot only. He further deposed that the land had not been divided properly being village land and he further admitted that by virtue of sale deed only rights of 100 sq. yards in khasra no. 360 Village Bijwasan has been transferred in his favour. Pertinently, no document is produced by the defendant no.1 to show that either he is the owner of open space used as common CS DJ ADJ No. 16665/2016 Page No. 12/18 passage or the suit plot. He had tried to pose the picture during his cross-examination that the sale deed EX. DW1-DX-2 pertains to the open space however, in the latter part of his cross examination he admitted that the open space is approx. 150 sq. yards whereas the sale deed in his favour is of only 100 sq. yards plot. He further deposed that he cannot tell whether the open space is in khasra no. 355 or not. As far as the wall is concerned, he admitted that he had constructed the wall after the execution of the sale deed in favour of the plaintiff in the month of December 2010.
32. On the other hand, the defendant no. 5 has taken two defenses, firstly, the sale deed executed by Smt. Laxmi in favour of the plaintiff is beyond her share in the khasra no. 355/2 as out of her share of 353 sq. yards, an area measuring 80 sq. yards came under the 8.6 feet wide gali and she had already sold her remaining share in the land before the execution of the sale deed in favour of the plaintiff and Secondly, the open space including the suit plot belongs to him, defendant no. 3, Satbir and Ranbir. However, the defendant no.5 miserably failed to prove both the defenses. No evidence is lead by him to prove that land measuring 80 sq. yards of Smt. Laxmi devi falls under the Gali as claimed by him and further it is not proved that except selling 191 sq. yards of land to Sh. Dorjee Wandi (Dewatsang) and Nandish Sarangal vide sale deed Ex. DW1/1, to whom she had sold the remaining land out of her share before execution of sale deed in favour of the plaintiff. As far as the plea of the defendant that Smt. Laxmi had given 100 sq. yards of land to defendant no.1 is concerned it stands proved from the sale deed produced by defendant no.1 (Ex. DW1/DX-2) that the same pertains to Khasra no. 360 and not 355/2. Similarly, no evidence is lead by the defendant no.5 to prove that the open space is under the CS DJ ADJ No. 16665/2016 Page No. 13/18 right, title or possession of defendant no.3 or other persons including him as claimed.
33. Therefore, after going through the evidence led by the plaintiff and Defendant no.1 to 3 & 5, nothing material came on record to establish that what is the exact khasra no. of the open space and who is the owner of the said open space. Even though, it was the stand of the defendant nos. 1 to 3 in their written statement that the open space belongs to someone else, however, Defendant no.1 and 3 for the first time in their chief examination had taken the stand that the open space belongs to defendant no.1 Kuldeep Singh but none of them has succeeded in proving the same in their evidence except the sale deed of plot of 100 sq. yards in favour of the defendant no.1.
34. Lastly, none of the defendants disputed the report of the Local commissioner and rather the defendant no.5 in his written statement categorically admitted the correctness of the report as well as the site plan. Further, all the defendants admitted the correctness of the report when put to them in their respective cross examination which was marked as EX.DW1/DX-1. Hence, as per the Local Commissioner report, it stands duly established that except the passage through the open space on which the defendants have raised a wall, plaintiff has no other access to the suit property and further from the report of the local commissioner, the grandmother of the plaintiff was also found present at the suit property, which also establishes the fact the plaintiff is in possession of the suit property and not the defendants as claimed by them in their respective written statements. It is also mentioned in the local commissioner report that the there is fresh boundary wall erected aat the spot shown in blue cloue in the site plan filed by the local commissioner.
CS DJ ADJ No. 16665/2016 Page No. 14/1835. Thus, in view of the discussion and observations made above, it is not established before the Court that what is the khasra no. of the open space and who is the owner of the same and further from the report of the Local Commissioner it also stands established that except the open space on which the defendants have raised a boundary wall shown in blue color, there is no other access to the suit plot of the plaintiff.
36. The Issue no. 1, 2 and 3 stands decided accordingly in above terms.
On Issue no. 4 & 5.
(4) Whether the plaintiff has easementary right of
necessity? ...OPP
(5) Whether the plaintiff has implied grant of easementary right? ...OPP
37. This Court is of the view that once it is not established that who is the owner of the open space, no necessity arises to enter into the question whether the plaintiff has either easementary right of necessity or implied grant of easementary rights as there is no owner of the servient heritage i.e. the open space through which the plaintiff and the defendant no. 1 have access to their respective properties shown in Red and Green Colour in the site plan filed by the Local Commissioner. However, this Court is of the view that once the defendants have failed to establish any right title or interest in the open space in their respective evidence, therefore, they have no right to raise the boundary wall in front of the open space thereby blocking the access of the plaintiff to the suit plot.
CS DJ ADJ No. 16665/2016 Page No. 15/18Issue no. 6 & 7 (6) Whether the plaintiff entitled to a decree of permanet injunction restraining the defendants from raising any construction as prayed in prayer A of the suit ? ...OPP (7) Whether the plaintiff entitled to a decree of mandatory injunction , as prayed in prayer B of the suit ? ... OPP
38. As already observed while deciding issue no. 1 to 5, once the defendants have no right, title and interest in the open space and a necessary corollary, have no right to raise the boundary wall over the open space.
39. It was one of the argument of the Ld. Counsel for the defendants that the plaintiff in the site plan annexed with the sale deed dated 05.03.2009 has shown the suit plot as vacant and towards the east boundary which is 29 feet in length one 8.6 feet wide gali has been shown and whereas in the site plan filed in the present suit the plaintiff has shown the suit plot by including the area of the gali and therefore, he is not entitled for the relief of permanent and mandatory injunction. But this Court is of the view that the said contention is not sustainable for the reason that no evidence is lead by the defendants to establish that the 8.6 feet wide gali extends unto the property of the plaintiff and further that the plaintiff has included the area of the gali as part of his property. It is also not proved by the defendants that the area of the gali covered by the plaintiff measures 30 sq yds as claimed by the defendant No. 5 in his written statement. It is also pertinent to mention that the defendant No. 5 interestingly in his written statement specifically pleaded that there was an old house constructed about 100 sq yds on the suit property which is more than 30 years old and wherein the plaintiff resided during his childhood. The above CS DJ ADJ No. 16665/2016 Page No. 16/18 contention of the defendant No. 5 if believed it means that the house was constructed 30 years back and admittedly till date none of the defendants filed any suit or raised the objections regarding covering o the 8.6 feet wide gali as alleged and argued by the Ld. Counsel for the defendants.
40. Resultantly, in absence of any plausible defense, the plaintiff is entitled for the relief of permanent as well as the mandatory injunction.
41. Hence, the issue no. 6& 7 are decided in favour of the plaintiff and against the defendants.
Relief:-
42. On the basis of the Issue-wise finding given by this Court, the Suit of the plaintiff is hereby decreed and the defendants are hereby restrained to raise any further construction of the boundary wall shown in blue colour in the site plan filed by the local commissioner in front of the open space and they are further directed to demolish the construction of the wall already raised and remove the material from the site at their own expense.
43. Suit of the plaintiff stands decreed in above terms with no orders as to costs.
44. Decree sheet be drawn up accordingly.
45. File be consigned to record room only after all necessary and due compliance. Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2022.11.01 16:46:06 +0530 Pronounced in the open Court (Sachin Jain ) on 31.10.2022 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 16665/2016 Page No. 17/18 CS DJ ADJ No. 16665/2016 Page No. 18/18