Delhi District Court
Smt. Leelawati vs Sh. Manoj Kumar (Since Deceased Through ... on 27 April, 2018
Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16)
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01 (SOUTH)
SAKET COURT, NEW DELHI
In the matter of:
Suit No.1036A/14 (82730/16)
CNR No. DLST030000302009
1.Smt. Leelawati W /o Late Sh. Narain Singh
2. Sh. Rajinder Singh S/o Late Sh. Narain Singh Both R/o H. No. 32, Masjid Moth, New Delhi. ..............Plaintiffs Versus
1. Sh. Manoj Kumar (since deceased through legal representative)
(i)Kamlesh W/o Sh. Manoj Kumar (widow)
(ii) Parvesh S/o Sh. Manoj Kumar (son)
(iii) Bharat @ Bhomik Sh. Manoj Kumar (son) All r/o H. No. 32, Masjid Moth, New Delhi.
2. Sh. Yogesh Kumar S/o Sh. Prahlad Singh
3. Sh. Raj Kishore S/o Sh. Prahlad Singh
4. Sh. Yogender S/o Sh. Prahlad Singh
5. Sh. Ravi S/o Sh. Prahlad Singh
6. Sh. Prahlad Singh (Since deceased through its legal representatives defendant no. 1 to 6 and defendant no. 6 (a) & 6 (B) 6 (a). Jag Roshni W/o Late Sh. Prahlad Singh Page 1 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) R/o H. No. 32, Masjid Moth, New Delhi.
6 (b). Sulochna D/o Late Sh. Prahlad Singh R/o Plot no. 14, Ambedkar Park, Prahladpur Poot Kala, Delhi42. Also at H. No. 32, Masjid Moth, New Delhi.
All R/o H. No. 32, Masjid Moth, New Delhi. ..............Defendants
Date of institution :16.07.2009.
Date of pronouncement of decision :27.04.2018.
Decision :Decreed with costs.
SUIT FOR PERMANENT & MANDATORY INJUNCTION
Present: None.
Judgment:
1. This suit for permanent and mandatory injunction has been filed by plaintiff no.1 and 2 against the defendants seeking relief of permanent and mandatory injunctions in respect of their portion in house bearing no.32, Masjid Moth, New Delhi (hereinafter referred to as "Suit Property"). Averments in the plaint:
2. By virtue of plaint, it is stated that the Suit Property was earlier owned by Sh. Kanha Ram who died way back leaving behind only Sh. Tota Ram as his sole legal heir who also died about 30 years ago leaving behind his two sons as legal heirs namely, Sh. Narain Singh (deceased husband of plaintiff no.1 and father of plaintiff no. 2), and the defendant no. 6 i.e. Sh. Prahlad Singh, both of whom inherited 50% share in the Suit Property upon demise of Sh. Tota Ram. Thereafter, Sh. Narain Singh expired leaving behind plaintiff no.1 and 2 as his legal heirs on 15.12.2001. Around the year 199596, Page 2 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) the Suit Property was partitioned between Sh. Narain Singh and Sh. Prahlad Singh. After partition, Sh. Prahlad Singh i.e. defendant no.6 raised construction on his share, however, Sh. Narain Singh could not raise the construction on his share due to paucity of funds. Taking undue advantage of the lenient attitude of Sh. Narain Singh, defendant no.6 raised illegal construction on the roof of the plaintiffs, to which they had no right. Late Sh. Narain Singh raised objection regarding the construction raised by the defendant no. 6 on the roof/terrace of the portion of the plaintiffs, during his lifetime. When Late Sh. Narian Singh intended to raise construction on his share, the defendant no.1 to 6 started creating hurdles and obstruction.
3. Ever since the partition, Sh. Narain Singh and defendant no. 6 as well as their family members have been using and occupying their respective shares in the Suit Property. Respective portion of the plaintiffs is shown in green colour and respective portion of the defendant nos.1 to 6 is shown in yellow colour in the site plan.
4. On 24.05.2009, defendants forcibly attempted to install the air conditioner and open a window towards the portion of the plaintiffs for the purpose of installation of air conditioner, and open a window towards the portion of the plaintiffs. However, at that time, plaintiff no.2 was present there, with whom defendant no.1 to 6 had a scuffle. They manhandled plaintiff no. 2 and tried to inflict injury upon him whereupon the PCR was called. Thereafter, with the intervention of police, the plaintiffs were saved. Defendants had called an electrician to install the Air Conditioner and complaints in this regard were filed by the plaintiff with the local police.
5. Again on 12.06.2009, defendant attempted to install the air Page 3 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) conditioner and to open a door towards the portion of the plaintiffs. Police was called, after which the defendants stopped the installation work but threatened the plaintiffs on dire consequences. They further threatened the plaintiffs that they would occupy the entire portion of the plaintiffs at the Suit Property.
6. It is further submitted that defendant no.1 and 6, in connivance with each other, have illegally and forcibly broken the wall adjacent to the portion of the plaintiffs in order to install Air Conditioner towards the portion of the plaintiffs, which is shown in red colour in the site plan attached with the plaint. On 0508.12.2010, defendant no.2 and his father defendant no.6 jointly made efforts to breakopen the partition wall firstly to camouflage the breaking by saying that they want to install Air Conditioner towards the side of plaintiffs and in the guise of installing Air Conditioner vent, defendant no. 2 to 6 demolished the entire wall. They also partly demolished wall adjacent thereto with the view to open a door toward the side of the plaintiffs. Finally on 08.12.2010, defendant no.2 and 6 demolished the partition wall. After demolishing of the wall, defendant no.2 and 6 want to encroach upon the portion which was in the exclusive possession of plaintiffs and is shown in blue colour in the site plan. The wall which has been completely demolished is the same wall where defendants propose to install Air Conditioner and has been shown in dotted line in the site plan filed by the local commissioner who visited the suit premises on 09.12.2010.
7. Along with the disputed wall, another wall of the room of the defendant has also been partly demolished and a space for installing door frame has been opened by defendant no.2 and 6 towards the portion of the plaintiffs whereby encroaching into the privacy of plaintiffs and with the Page 4 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) objective of usurping the portion of the plaintiffs, shown in blue colour with green outline in the site plan. On 20.12.2010, defendant no.2 and 6 intended to install door frame at point 'A' and defendant no. 2 and 6 managed to erect the door frame but could not fix it. In order to grab the plaintiff's portion, defendant no. 2 and 6 closed the plaintiff's entry as shown at point B by installing small wall and grill over it and have started using the entry gate, which was exclusively used by the plaintiffs to enter their portion as shown at point 'C'. Plaintiffs made police complaint against the defendants. On 28.02.2011, defendant no.6 along with his sons even demolished the "chocket"/door frame of plaintiff at its entrance at point 'C'. Complaint dated 01.03.2011, was lodged against the defendants at PS Hauz Khas but no action was taken against the defendants. On 05.03.2011 defendant no. 6 and his wife along with defendant no. 3 and 5, barged into the portion of the plaintiffs and had broken the bathroom at the ground floor near the entrance shown at point 'D' and attempted to break the water tank and roof of the room at terrace of plaintiffs. Plaintiff no.1 lodged a police complaint against the defendants but no action was taken by the police.
8. Having left with no other option, plaintiffs have filed this suit against the defendants seeking costs and:
(a) Permanent injunction to restrain the defendants from installing the air conditioner and opening the door towards the portion of the plaintiffs, which has been shown as red in the site plan (prayer (a));
(b) Mandatory injunction directing the defendants to remove the construction raised by the defendant no.1 to 6 on terrace of the portion of the plaintiffs situated in Suit Property (prayer (b));Page 5 of 25
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Suit no.1036/14 (82730/16)
(c) Permanent injunction restraining the defendants from using, in any manner, the passage and entrance point shown at Point 'C' in the site plan, for ingress or outgress to their respective portions (prayer (d));
(d) Permanent injunction restraining the defendants for causing any hindrance/obstruction whatsoever in the peaceful enjoyment of plaintiff on the portion shown in blue colour with green outline in the site plan (prayer (e));
(e) Mandatory injunction directing the defendants to close the opening of door at point 'A' and to construct wall which was demolished, as marked red in the site plan. In case of failure of defendant to do so, liberty is sought by the plaintiffs to construct the demolished wall and to also put a lock on the door which has been opened in the portion of the plaintiff at point 'A' (prayer (f)). Written Statement on behalf of defendant no. 2 and 6 :
9. By virtue of Written Statement, the contents of the plaint have been denied and it is stated that the plaintiff has filed a wrong and incorrect site plan. Property was duly partitioned between defendant no.6 and Sh. Narain Singh, and since then, the plaintiffs and defendant no.6 are in possession of their respective portions. At request of Sh. Narain Singh, defendant no. 6 had permitted the plaintiffs to use the passage from the portion of the property of defendant no. 6 despite the fact that plaintiffs did not have any right or interest therein. Taking undue advantage, plaintiffs have constructed a toilet in the said passage. The plaintiffs are unnecessarily creating hindrance and obstruction in the installation of air conditioner by defendant no. 6 in his own portion of the Suit Property. The said room/wall on which the air conditioner was being installed is not a part and parcel of the property of the plaintiffs. The said room is in use by defendant. The plaintiffs are also causing interference to defendant Page 6 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) no.7 who is mother of defendant no. 6 and about 100 years of age and they are not allowing her to put her cot in the said passage in question. It was due to mutual understanding between defendant no.6 and Late Sh. Narain Singh that since Sh. Narain Singh had taken excess area on the ground, he had asked defendant no. 6 to level the same at the first floor. Defendant no. 2 and 6 have not demolished any wall on the portion adjacent to the plaintiffs. Plaintiffs are in the habit of making false complaints. The suit of the plaintiff is merit less and plaintiffs have no locus standi to file the suit. Under the garb of this suit, plaintiffs is seeking relief of declaration of ownership and possession over property of defendant no. 6. Suit be dismissed with costs.
10. No written statement was filed on behalf of the other defendants. Vide order dated 12.08.2009, suit was dismissed against defendant no. 8. Vide order dated 11.09.2009, defendant no.1, 3, 4 and 5 were proceeded against exparte. Vide order dated 04.06.2011, suit stood abated against defendant no. 7.
Replication:
11. By virtue of the replication, the plaintiffs reaffirmed the contents of the plaint and denied the contents of the written statement of defendant no. 2 and defendant no. 6.
Issues:
12. For the first time, vide order dated 23.10.2010 certain issues were framed. On subsequent amendment of the suit, vide order dated 08.08.2012, following issues were framed:
Issue no.1 Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (a) of the plaint? OPP Page 7 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) Issue no.2 Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (b) of the plaint? OPP Issue no.3 Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer (d) of the plaint ? OPP Issue no.4 Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer (e) of the plaint? OPP Issue no.5 Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer (f) of the plaint? OPP Issue no.6 Whether the plaintiff has no locus standi to file the present suit?OPD Issue no.7 Relief.
13. Vide order dated 12.03.2018, in exercise of powers under Order XIV Rule 5 (2) CPC, issue no. 2 was struck out. Plaintiff's evidence:
14. In order to prove their case, the plaintiff no.1 examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/A. She relied upon the following documents:
(i) Ex. PW1/1 i.e. photocopy of death certificate of Sh. Narayan Singh the original.
(ii) Ex. PW1/2 i.e. photocopy of election I Card.
(iii) Ex. PW1/3 i.e. photocopy of Aadhar card.
(iv) Mark PW1/4 i.e. photocopy of the ration card.
(v) Ex. PW1/5 i.e. site plan.
(vi) Utility bills i.e. electricity bill due on 23.11.2000 is Ex. PW1/6A, Water bill due on 24.05.2012 is Ex. PW1/6B, water bill due on 15.04.2011 is Ex.Page 8 of 25
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Suit no.1036/14 (82730/16) PW1/6C, electricity bill due on 28.12.2007 is Ex. PW1/6D.
(vii) Mark PW1/7 (Colly) i.e. copy of complaint dated 20.03.1997 to DCP, South (2 pages),
(viii) Mark PW1/8 (Colly) i.e. copy of complaint dated 06.01.2001 (02 pages).
(ix) Ex. PW1/9 (Colly) i.e. complaint dated 18.04.2009 (12 and 13)
(x) Ex. PW1/10 (Colly) i.e. complaint dated 29.05.2009 (page 14 to 17)
(xi) Ex. PW1/11 (Colly)i.e. complaint dated 06.06.2009 (page 18 to 19)
(xii) Ex.PW1/12 (Colly) i.e. complaint dated 12.06.2009 to DCP, South (Page 20 to 22).
(xiii) Copy of the order dated 02.02.2010 passed in CS no. 250/10
(xiv) Ex. PW1/14 i.e. copy of complaint to SHO Hauz Khas received on 08.12.2010.
(xv) Mark PW1/15 i.e. copy of complaint to SHO Hauz Khas received on 21.12.2010.
(xvi) Mark PW1/16 i.e. copy of complaint to ACP Hauz Khas received on 21.12.2010.
(xvii) Mark PW1/17A to Mark PW1/17 M i.e. photographs. (xviii) Ex. PW1/18 (Colly) i.e. report of the Local Commissioner and the site plan is (page 1 to 8).
(xix) Ex. PW1/19 i.e. another site plan.
(xx) Ex. PW1/20 i.e. complaint dated 01.03.2011.
15. The witness was duly crossexamined by Ld. Counsel for defendant no. 2 and 6.
16. ASI Ahmed Saleem, Reader/ Record Keeper, PS Defence Page 9 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) Colony was examined as PW2. He brought the summoned record and exhibited record pertaining to DD entry no. 45 B dated 29.05.2009 as Ex. PW 2/1 (Colly) (02 pages); DD entry no. 24B dated 06.06.2009 as Ex. PW2/2 (Colly) (02 pages); office order dated 18.03.2013 whereby records pertaining to period of 01.01.2009 till 31.12.2009 were destroyed as Ex. PW2/3.
17. ASI Ravinder Kumar, Reader/ Record Keeper, PS Hauz Khas was examined PW3. He brought the summoned record and exhibited record pertaining to DD entry no. 52B dated 08.12.2010 as Ex. PW3/1 (Colly) (02 pages); DD entry no. 18A dated 21.12.2010 as Ex. PW3/2 (Colly) (02 pages) and action taken report as Ex. PW3/3 (Colly) (02 pages).
18. PW4 Sh. Divya Prakash, Draughtsman was summoned and he exhibited site plan prepared by him as Ex. PW4/1.
19. PW5 Mr. D. P. Katyan, Advocate/ Local Commissioner was summoned and he relied upon his report already exhibited as PW1/18 (Colly). He exhibited his rough record/ report as Ex. PW5/1 and site plan as Ex. PW5/2.
20. All plaintiffs witness were duly crossexamined by Ld. Counsel for defendant no. 2 and 6. Thereafter, plaintiff's evidence was closed. Defendants' Evidence:
21. Defendant no.6 examined himself as DW1, and tendered his evidence by way of affidavit Ex. DW1/1. He relied upon the document Ex. DW1/A i.e. site plan.
22. DW2/ Yogesh Kumar (defendant no.2) tendered his evidence by way of affidavit Ex. DW2/1. He relied upon he following documents:
(i) Ex. DW1 /A (already exhibited) i.e. site plan.Page 10 of 25
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Suit no.1036/14 (82730/16)
(ii) Ex. DW2/A i.e. statement dated 02.02.2010
(iii) Ex. DW2/B i.e. Objections filed to the report of L. C.
23. DW1 and DW2 were duly crossexamined by the Ld. Counsel for the plaintiffs.
24. Thereafter, vide separate statement, defendants' evidence was closed on behalf of defendant no. 2 and 6.
Findings :
25. Learned counsels for the parties advanced their arguments in accordance with their pleadings. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsels for both the sides. My issuewise findings are as under:
Issue no. 1 Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (a) of the plaint? OPP
26. Entire suit revolves around the controversy regarding the portions that were in occupation and possession of the plaintiffs and defendants in the Suit Property on account of oral partition between them, more specifically whether the portion in blue in site plan Ex. PW1/19 is in settled possession of plaintiffs or defendants. In order to decide this issue as well as all other issues in this suit, this main controversy need to be decided first.
27. In terms of Ex. PW1/19 (i.e. site plan of the Suit Property as filed by the plaintiff), plaintiff claims that entire portion shown in green outline (including the blue portion) came to their share, and portion shown in yellow came to the share of the defendants. Per contra, defendants claim that Page 11 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) portion shown in blue colour in Ex. PW1/19 was common portion, which was being used by both plaintiffs and defendants.
28. The case of the plaintiff is that portion shown in blue colour in Ex. PW1/19 also belonged to the plaintiff, and that there was a partition wall from point C1 to D1 and D1 to D2 which clearly divided the portions of the plaintiff and defendants. Plaintiff further contends that there was a separate entrance for the plaintiff into blue portion whereas point B was used by the defendants for entrance into their own portion. In order to prove its case, PW 1 has stated on oath that property was orally partitioned by way of family settlement between late Sh. Narayan Singh and Sh. Prahlad Singh in the year 199697 and both the parties duly acted on the family settlement/ oral partition. They erected a partition wall, took possession of their respective portions and started living with their families in their respective portions. Green portion (including the blue portion) is the share of the plaintiff and yellow portion is the share of the defendants.
29. PW1 has stated that defendant no.1 and 6 have illegally and forcibly broken the partition wall which divides the two portions having separate ingress and outgress. Several complaints in this regard were also filed which have been placed on record as Mark PW1/7, Mark PW1/8, Ex.PW1/9 to Ex. PW1/14, Mark PW1/15 and Mark PW1/16. On 08.12.2010, defendant no. 2 and 6 demolished the partition wall as shown in red colour in the site plan Ex. PW1/5. Photographs of the defendants engaged in this act are placed on record as Mark PW1/17A to Mark PW1/17 M. Defendants also closed their entry at point B and opened a door at point A in Ex.PW1/19.
30. During crossexamination, PW1 remained firm on her Page 12 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) testimony and stated that partition wall was in existence when the suit was filed. She further denied the suggestion that there was no partition wall between point C1 to D1 and has reiterated about existence of the partition wall. She has further denied the suggestion that portion shown in green colour in the site plan Ex. PW1/19 came to the share of Sh. Prahlad Singh or that he had given permission to the plaintiff to enter into her portion through his portion. She has further denied suggestion that wall from point D1 to D2 is the wall of the Sh. Prahlad Singh and not the partition wall. She has further denied suggestion that door on the wall from point D1 to D2 was already in existence.
31. PW1 has relied upon photographs Mark PW1/17 A to Mark PW1/17M to show that partition wall was broken by defendants and partition wall provided separate entrance to the portion of the plaintiff and defendants. No suggestions during the crossexamination were put to the plaintiff regarding correctness of these photographs. It was held in the case of Shashi Bala v. Rajiv Arora,1 that,"absence of proper rebuttal or failure of not putting one's case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged".
32. Further, Hon'ble Calcutta High Court in Smt. Asoka Mitra v. Sri Swapan Kumar Mitra,2 has it is held that "whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all".
33. Guidance is also sought from Saikou Jabbi v. State of 1 188 (2012) DLT 1.
2 (2007) 3 CLLT 503 HC.
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Suit no.1036/14 (82730/16) Maharashtra,3 wherein the Hon'ble Apex Court accepted the testimony of the witness since his statement was not challenged or shaken in cross examination and there was no cross examination to point out the falsity in the statement of the witness.
34. These photographs were also not disputed as to mode of proof on behalf of the defendants, at the time these were tendered in evidence. Also, their correctness was not disputed during crossexamination. Thus, these photographs Mark PW1/17A to Mark PW1/17M are deemed to have been admitted on behalf of the defendants and do not require formal proof by the plaintiff.
35. From a perusal of these photographs, it can be seen that there existed a wall that separated entrance to the Suit Property and provided two separate entrances. Further, defendant no.2, engaged in the act of breaking the wall can be clearly seen in the photographs. Photographs also show rubble of construction material upon the demolition of the wall. Further,the photographs reflect that wall was not a half wall but erected from ground to roof. Ex. PW 1/17K also shows a provision for air conditioner being made in the wall by cutting out the wall of that size.
36. In order to ascertain the factual position at the site, a local commissioner was also appointed by the Court vide order dated 09.12.2010, and he was examined on behalf of the plaintiff as PW5. PW5 relied upon his inspection report Ex. PW1/18 (Colly).
37. Vide order dated 10.02.2011, the report of local commissioner was accepted to the extent, as was also admitted by defendant, that a wall has 3 (2004) 2 SCC 186.
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Suit no.1036/14 (82730/16) been demolished by the defendant. However, his finding that the said wall was partition wall was left open to be decided through evidence.
38. As per the report of the local commissioner, there existed a wall at the Suit Property which had been broken, and measurement of the broken wall was 7 feet 4 inches X 3 feet 5 inches approximately. Local commissioner has further reported that it was stated by the defendants that this wall was demolished by Sh. Yogesh Kumar i.e. defendant no.2. Local commissioner further observed that entire plaintiff's portion was newly constructed. During crossexamination, PW5 stated that there is only one way to enter into Suit Property however a structure in form of a pillar is erected, which separates way of ingress/egress of the plaintiff and defendants to their respective premises. At the time of visiting the site, portion X to X1 and X1 to X2 in site plan Ex. PW5/2 were already demolished. The portion from X to X1 was demolished till the roof and portion X1 to X2 was demolished about 7 feet 4 inches.
39. PW5 has also filed his site plan Ex. PW5/2 that had been prepared at the time of commission by Mr. M. N. Alam on the directions of the local commissioner PW5. During the crossexamination, PW5 has denied the suggestion that there was a door frame with ventilator at point X1 and X2. He has further stated that there was a wall from point X2 to X3 which was a part of the demolished wall. He has further stated that a door already marked as D was existing for entrance into bedroom of the defendants. He has further denied that there was no door at point Z and affirmed that there was an entry gate at point X3 to X4. PW5 has denied suggestion that wall from point X1 to X2 was not a partition wall, and has stated that if the wall existed, it Page 15 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) might have been a partition wall. Although local commissioner cannot give a finding on whether the said wall was meant to be partition wall or not, his factual report and testimony reinforces that the said wall, if erect would divide the Suit Property into two parts such that each part can function as an independent unit.
40. Draftsman PW4 has also identified the site plan of the Suit Property as Ex. PW4/1, and has stated that at the time of preparing the site plan wall was broken, and demolished from point X to Y.
41. Local commissioner/PW5 has specifically stated in his report that defendant no. 2 had admitted to demolishing the wall in question by him. PW5 was not crossexamined on this point and no suggestion as to the aforesaid being false put to him. Therefore, defendant no. 2 has admitted the fact of demolition of the wall by him.
42. Besides, summoned witnesses, PW2 and PW3 have also proved the filing of several complaints in this regard by the plaintiff against the defendants in PS Hauz Khas and PS Defence Colonly. All the plaintiffs' witnesses withstood the test of crossexamination, and no material contradictions were brought out in their testimonies.
43. On the other hand, the testimony of DW1 is not reliable and suffers from material inconsistencies. The affidavit of evidence Ex. DW1/1 is as per the written statement. DW1 has relied upon Ex. DW1/A to be correct site plan of the Suit Property that was prepared at the time of partition. However, during crossexamination, there were several contradictory statements regarding Ex. DW1/A. While it is claimed that Ex. DW1/A was made at the time of partition in the year 199798, the date on Ex. DW1/A is Page 16 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) 29.03.2010. When confronted with the said contradiction, DW1 stated that partition took place twice. This material assertion was made for the first time without any basis and support in written statement or Ex. DW1/1. Further, as per DW1, at the time of partition of the property, there were two rooms and one small baithak existing at the ground floor of the property. However, Ex. DW1/A i.e. site plan shows five rooms and two kitchens. DW1 failed to provide any satisfactory reply to the aforesaid contradiction.
44. Although reliance is placed on Ex. DW1/A, the authenticity of the same comes into dispute due to shifting stands taken by DW1. Further, Ex. DW1/A is not in consonance with the site plan prepared by local commissioner who had visited the site, and submitted Ex. PW5/2 as the actual site plan of the property. The said site plan is infact in consonance with Ex. PW1/19 that has been filed by the plaintiff.
45. Furthermore, as per para 6 of the affidavit Ex. DW1/1, it is stated on oath by DW1 that plaintiffs constructed a toilet in the common passage which was subsequently removed. However, during cross examination, DW1 states that the plaintiff did not construct any bathroom. He further states that plaintiffs had tried to construct a bathroom which was later removed by them. He has further denied the suggestion that at the time partition, no toilet was existing at point X. In this regard DW2 has stated at para 5 of affidavit Ex. DW2/1 that: "the plaintiffs in an unlawful manners constructed a bathroom in the said passage existing in the property of defendant no. 6, later on the plaintiffs had removed the temporary structure of toilet from passage". However as per crossexamination of DW1, toilet was not constructed by plaintiffs and was existing since partition.
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46. As per report of local commissioner, toilet is still existing in said portion. During crossexamination, PW5 has specifically stated that "The roof of the toilet was constructed (pakka construction). I had not taken any particular measurements of the toilet. On appearance, the construction looked old. The entrance to the toilet was at point Q. I cannot say that the toilet was constructed recently few days before my visit. It is wrong to suggest that there was no entrance door of the toilet".
47. Existence of this toilet in the blue portion in Ex. PW1/19 since time of partition and it being used by the plaintiffs also indicates that said portion where toilet is situated is not a common portion but was exclusive portion of the plaintiff.
48. Both DW1 and DW2 have admitted during crossexamination that no suit for partition has been filed by them till date. Further, DW1 states that partition was not with his consent. DW2 states that there is no separate ingress and egress, even after partition, for the plaintiffs and defendants at the Suit Property. The evidence of plaintiff's witnesses above shows the existence of wall at Suit Property that divided Suit Property into two separate parts. In case partition or existence of the wall was not agreeable to the defendants, their conduct of not filing any partition suit till date raises serious doubts on the truthfulness of their statements that partition was not agreeable to them or that there were no separate ingress/outgress points for plaintiffs and defendants at the Suit Property.
49. On a comprehensive reading of the aforesaid testimonies, balance of probability suggests that there existed a wall from point C1 to D1 and from point D 1 to D2 in Ex. PW1/19, and that the wall from point C1 to Page 18 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) D1 and further a part of D1 to D2 now stands demolished. The said wall was broken by defendant no.2. The wall was also an old construction and a fully erected wall would divide the Suit Property into two separate portions such that both portions are independent units and have separate ingress/ outgress. Entrance to respective rooms is also separately provided for within the respective portions such that they are accessible to the respective party even with the wall erect. The onus shifted on the defendants to explain any other circumstances under which the said wall was erect and was subsequently demolished. Defendants have failed to provide any reasonable explanation in this regard. They have also failed to contest that wall was broken by them as also failed to explain why part of the said wall was demolished by them.
50. Thus, a fully erect wall from point C1 to D1 and D1 to D2 was in the nature of a partition wall. The wall had been existing since the time of oral partition thereby being erected to crystallize the terms of the partition. Property having been partitioned by partition wall, and no suit for partition having filed by defendant till date means that the defendants were also agreeable to the same as had been residing only in their portion in yellow (in Ex. PW1/19) since the partition. Entrance at point 'B' was being used by defendants for ingress/ outgress to their portion (yellow) and gate at point 'C' was being used by plaintiff for ingress/ egress to their portion (shown in green outline including the blue portion) in Ex. PW1/19. There existed separate gate for entrance into defendants' portion, as well as a door for entrance into defendant's room at point 'D'. The new door now sought to be built after demolishing the wall seems to be an attempt to change the entrance of defendant's portion to give the blue portion (in Ex. PW1/19) an appearance of Page 19 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) common portion. The site plan of the local commissioner Ex. PW5/2 and site plan Ex. PW1/19 (put forward by the plaintiff) are in consonance with each other. Therefore,Ex. PW1/19 can be taken to be reflecting the correct position of the Suit Property. To conclude, a partition wall from C1 to D1 and D1 to D2 separated the Suit Property into two independent units with portion surrounded by green outline (including blue portion) belonging to the plaintiffs and yellow belonging to defendants in Ex. PW1/19.
51. On the basis of above findings, let us now proceed to decide issue no. 1. The onus of proof of this issue is on the plaintiff. As concluded above, the partition wall from point C1 to D1 and D1 to D2 separated the Suit Property into two units with green (including blue) belonging to the plaintiff and yellow belonging to defendants in Ex. PW1/19. A photograph Ex. PW 1/17K has been placed on record that shows that a provision for AC being made in the wall. As per findings above, the said wall separated plaintiff and defendants portions and was in the nature of partition wall. Defendants cannot be allowed to use their property in a manner so as to cause inconvenience to the plaintiffs in use of their portion/ property. Therefore, defendants cannot be permitted to install air conditioner at any point on the wall from point C1 to D1 and D1 to D2 in Ex. PW1/19.
52. As far as opening doors towards portion of the plaintiff is concerned, PW5 i.e. local commissioner has denied existence of door frame at point X1 to X2 in his site plan Ex. PW5/2. He has further stated that a door already existed at point D for entrance to the bedroom of the defendants thereby making requirement of any other door unnecessary. It has already been concluded on the basis of findings above that portion in blue also Page 20 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) belongs to the plaintiff. The wall from point D1 to D2 was a part of the partition wall which has now been broken at point A1 to install a door. The new door now sought to be built after demolishing the wall seems to be an attempt to change the entrance of defendant's portion to give the blue portion (in Ex. PW1/19) an appearance of common portion. The new door will open the door of the room of the defendants (in yellow portion) into the blue portion i.e. portion of the plaintiffs. Defendants cannot be allowed to open the said door so as to gain entrance into plaintiff's portion without consent of the plaintiffs. Further, no inconvenience will be caused to the defendants in use of their room since separate entrance at point D for the said room already exists that can be used by the defendants to enjoy its property. Accordingly, this issue is decided in favour of the plaintiff and against defendants.
Issue no. 2:
Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (b) of the plaint? OPP
53. This issue was struck out vide order dated 12.03.2018, in exercise of powers under Order XIV Rule 5 (2) CPC.
Issue no. 3 and 4: Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer (d) of the plaint ? OPP Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer (e) of the plaint? OPP
54. Since common points are involved, both these issues are being decided together. The onus of proof of these issues is on the plaintiff. It has already been concluded as per findings at para 26 to 50 in issue no.1 above (which are not repeated here for the sake of brevity) that a wall was existing at C1 to D1 and D1 to D2 in Ex. PW1/19. Further the said wall had the effect of partitioning the portion of the plaintiff and defendants in the Suit Property Page 21 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) such that the blue portion in Ex. PW1/19 also fell within plaintiff's share. As per evidence on record, the said wall when existing provided two separate entrances to the respective portions of the plaintiffs and defendants. In the site plan Ex. PW1/19, the entrance at point C falls within plaintiff's portion whereas point B falls within defendant's portion. Since separate ingress/ outgress to the respective portions of the parties was already existing prior to demolition of wall; since defendant can access his portion of the property (in yellow) through point B; and since defendant failed to prove existence of a common passage, defendants cannot claim any right to use the passage at point 'C'. Point 'C' is to be used by the plaintiffs alone for ingress/ outgress to their portion of the Suit Property, and defendants have no right to use the same. Besides, there will be no necessity or occasion for the defendant to use the entrance/passage at point 'C' which falls within the plaintiffs' share since once the partition wall is rebuilt, it will not be possible for the defendants to enter into their portion (shown in yellow) through point C.
55. Further, since the portion in blue with green outline in Ex. PW 1/19 falls within the plaintiff's portion of the Suit Property and has been in possession of the plaintiffs, plaintiffs are entitled to its peaceful use and enjoyment without any interference from the defendants. These issues are accordingly decided in favour of the plaintiffs and against the defendants.
Issue no. 5 Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer (f) of the plaint? OPP
56. The onus of proof of this issue is on the plaintiff. From the evidence on record especially statement of local commissioner as well as site plan filed by the plaintiff and in light of the findings at para 26 to 50 in issue Page 22 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) no.1 above (which are not repeated here for the sake of brevity), it is proved that initially there existed no door at point A. Instead, there was partition wall from point C1 to D1 and D1 to D2 which partitioned the Suit Property to the effect that portion in green outline (including blue portion) came to the plaintiffs' share and portion in yellow came to defendants' share in Ex. PW 1/19. The door was subsequently provided for by defendant and was built after demolition of the partition wall. It has been held in the issues decided above that wall had been demolished by the defendants in order to alter the structure of the Suit Property. Thus, in order to allow the plaintiffs to peacefully enjoy their portion without interference from the defendants and to restore the Suit Property back to the form in which it was existing on account of oral partition between the parties, defendants are required to reconstruct the said wall, and also to permanently close the door at point A. This issue is accordingly decided in favour of the plaintiffs and against defendants.
Issue no.6:
Whether the plaintiff has no locus standi to file the present suit?OPD
57. The onus of proof of this issue is on the defendant. Although bald allegations have been made in the written statement that plaintiffs have no locus to file the present suit, no evidence has been led by the defendant in proof of the same. The plaintiffs have asserted that they are residing in the Suit Property, which fact is also admitted by the defendants. The only dispute is with respect to a certain portion of the Suit Property where both the parties are asserting their respective rights. Thus, there is no want of locus standi on the part of the plaintiffs to file this suit to stake their claim with respect to the alleged violation of their rights at the Suit Property. The defendants have failed to discharge their onus. This issue is accordingly decided against the Page 23 of 25 Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16) defendants and in favour of the plaintiffs.
Issue no. 7 Relief:
58. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led by the parties, on the scale of preponderance of probabilities, suit of the plaintiff is decreed as follows:
(i) A decree of permanent injunction is passed in favour of the plaintiffs and against the defendants, and defendants are hereby restrained from installing the air conditioner on any wall from point C1 to D1 and D1 to D2 in Ex. PW1/19 and from opening any door at point A or at any other point from C1 to D1 and D1 to D2 in Ex. PW1/19.
(ii) A decree of permanent injunction is passed in favour of the plaintiffs and against the defendants, and defendants are hereby restrained from using in any manner the passage and entrance point shown at point C in the site plan Ex. PW1/19, for ingress or outgress to their portion which is shown in yellow in Ex. PW1/19.
(iii) A decree of permanent injunction is passed in favour of the plaintiffs and against the defendants, and defendants are hereby restrained from causing any hindrance or obstruction, in the peaceful use and enjoyment of plaintiff of its portion shown in blue colour with green outline in the site plan Ex. PW1/19.
(iv) A decree of mandatory injunction is passed in favour of the plaintiff and against the defendants, and defendants are hereby directed to reconstruct the wall from point C1 to D1 and to permanently close the door opening at point A in Ex. PW1/19, at their own costs, within two months from today.Page 24 of 25
Leelawati & Anr. v. Manoj Kumar & Ors.
Suit no.1036/14 (82730/16)
59. Costs of the suit are also awarded in favour of the plaintiffs.
60. Decree sheet be drawn accordingly.
61. File be consigned to record room after due indexing and completion.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 27.04.2018 Announced by me in the open court today on 27.04.2018. All the twenty five pages of this judgment have been checked and signed by me.
(NEHA PRIYA) Civil Judge01 (South) Saket Courts/New Delhi 27.04.2018 Page 25 of 25