Delhi District Court
Abdul Hai vs Mohd. Irshad on 20 August, 2022
IN THE COURT OF MS. CHETNA SINGH,
ADDITIONAL DISTRICT JUDGE-06, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of:
RCA No. 83/2018
Abdul Hai
S/o Sh. Abdul Rehman, (SPA Holder)
R/o J-13, Abul Fazal Enclave, Part-I,
Jamia Nagar, Okhla, Delhi-110025.
................ Appellant
Versus
Mohd. Irshad
H. No. S-18/18-B, Batla House
Joga Bai Extension, Near Mumtaz Masjid Complex,
Jamia Nagar, Okhla, Delhi-110025
............ Respondent
(a) Date of institution of appeal :03.07.2018
(b) Date when judgment reserved :17.08.2022
(c) Date of Judgment :20.08.2022
APPEAL UNDER ORDER 41 RULE 1 READ WITH SECTION
96 AND 151 OF CPC AGAINST THE IMPUNGED DECREE AND
JUDGMENT DATED 30.05.2018 PASSED BY MS. SHRIYA
AGGARWAL, LD. CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI IN SUIT NO. 50355/ 2016.
JUDGMENT
1. Vide this judgment, I shall decide the present appeal filed on behalf of the appellant against the impugned judgment and decree CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 1 /14 dated 30.05.2018 passed by the court of Ld. Civil Judge, in suit no.50355/2016.
2. Briefly stated the facts of the case leading to the present appeal and as per the suit originally filed are that the plaintiff/appellant herein is a SPA holder/husband of the landlord/owner namely Mrs. Shabina Begum. It is stated that Mrs. Shabina Begum being the wife of the appellant herein has the right, interest, title and lawful/rightful owner of the property bearing no.S-18/18, Batla House, Jogabai Extension, Jamia Nagar admeasuring 25 sq. yards as shown in the documents being GPA, agreement to sell, affidavit, receipt, Will, possession letter executed in favour of the plaintiff by the vendor. The property is in L-shape two side open gates from the gali as well as another gate towards the common gallery. The appellant has one room set including kitchen, washroom on the ground floor and stairs (above his washroom) from the room to go his roof and common gallery. The plaintiff/appellant rented out the said property to one Mohd. Kalam who is residing in the property alongwith his family.
3. The defendant is the neighbour of the plaintiff/appellant and living with his family and he used to use the appellant's stairs to go to the roof of his house through the common gallery stairs. The said set of stairs are built up on the upper portion of the washroom of the property of the appellant's/plaintiff's space and the appellant had to CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 2 /14 cover up his stairs with the temporary cartons i.e. cloths, sarees etc. towards the common gallery as shown in the photographs and site plan. The appellant always objected to the defendant/respondent using his stairs. However, the respondent continued to use the said stairs. On various occasions, scuffles took place between the appellant and the respondent over the use of the said stairs and on one of the occasions, the appellant became unconscious in one of the scuffles due to which the appellant's wife had to call the police on number 100 and the appellant was taken to AIIMS Trauma Centre wherein he was admitted for two days and thereafter, shifted to RML hospital for another two days. In this regard, an FIR bearing no. 740/12 under Section 308/34 IPC, PS Jamia Nagar was also registered against the respondent and his wife.
4. Now, it is submitted that the respondent is illegally, improperly and unauthorizedly and with a malafide intention is using the stairs of the appellant and hence, a suit for permanent and mandatory injunction was filed which was later amended seeking the following reliefs:
i) decree of permanent injunction restraining the defendant no.1, its staff etc. from using the stairs owned by the plaintiff.
ii) directing defendant no.1 to remove the permanent wall made in front of the door of the stairs and projected roof i.e. a chajja, on the plaintiff's property and for cleaning the hindrance in the passage of the stairs and CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 3 /14 from stopping and threatening the plaintiff and his associates in the repairing of and passing through the stairs.
iii) directing the defendant no.2 to remove the entire unauthorized construction on the property of defendant no.1, and for removal of the projected construction and water tank i.e. the illegal chhajja on the property of the plaintiff.
iv) directing the defendant no.3 to give protection when the plaintiff and his family come to the suit property and for taking action against defendant no.1 in respect of the complaints filed.
5. In the said suit, the Ld. trial court framed the following issues vide order dated 04.04.2016:-
i) Whether the plaintiff is entitled to a decree for permanent injunction against the defendant as prayed for? OPP
ii) Relief.
6. However, the said suit was dismissed by the Ld. trial court vide impugned judgment and decree dated 30.05.2018 which has been challenged before this court by the appellant on the following grounds:
i) That the judgment and decree of the lower court is totally contrary to law, materials available on record, weight of evidence and the probabilities of the cases.
ii) That the Ld. Trial court erroneously dismissed the suit on 30.05.2018 in a mechanical manner, which deviates from ends of justice.CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 4 /14
iii) That the Ld. Trial court has failed to consider that the title documents and site plan of the appellant shows that the respondent is not entitled to purchase his part of stairs which is above his washroom in the property;
iv) That the Ld. Trial court has failed to consider that there is a common gallery between the properties of both the parties and there is stairs above the common gallery to go to the roof of respondent as per the site plan.
v) That the Ld. Trial court did not appreciate that the evidence produced by the appellant by PW1 and PW2 with all necessary documents through which truth comes out. Unfortunately, the Ld. Trial court also did not appreciate the cross examination of defendant witness as they produced all forged documents and laying before the Ld. Trial court.
vi) That the Ld. Trial court has given observation in para no.21, 22 & 23 of the impugned judgment, are wrongly appreciation of evidence and the factum of the case. The Ld. Trial court has also failed to consider the conduct and graveness of matter and the nature of the present suit and take away legal effect.
vii) That the Ld. Trial court has failed to appreciate that the plaintiff is not permanently residing at suit property and residing in his another property. So the applicant has also proved his easement right over the projected Chhajja over his property.
viii) That the Ld. Trial court has failed to consider that the respondent/defendant has filed a wrong site plan in his WS. Moreover CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 5 /14 the defendant has also not filed the trustworthy documents i.e. original title deed before the Hon'ble trial court and claiming his right over the stairs.
7. Per contra, reply was filed by the respondent on the averments that no date of execution is mentioned on the alleged SPA and the same is not notarized, therefore, alleged SPA is not valid and genuine. It is denied that the appellant is owner of stairs (washroom). It is submitted that stairs belong to the wife of defendant who is absolute owner of her portion i.e. property No. S-18/18, Batla House, Joga Bai Extension, near Mumtaz Masjid Complex, Jamia Nagar, Okhla, New Delhi. It is also denied that defendant uses the applicant's stairs to go to the roof of his house through the common gallery stairs. It is submitted that appellant inducted one person namely Mr. Mohd. Kalam who was residing in the property of appellant as tenant and requested the wife of defendant to allow him to go on the roof of property through stairs of respondent and she allowed him, but thereafter appellant became dishonest and started claiming his right over the stairs of property of wife of respondent. Thereafter seeing the malafide intention of the applicant, the applicant, respondent did not allow him to use her stairs. It is denied that applicant has always been objecting the respondent for using his stairs and advice him to make his own stair from his house but the respondent did not care the instructions and using the applicants stairs forcibly in his absence. It is denied that respondent/defendant CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 6 /14 alongwith local property dealer has evil/bad eye on the property of the applicant/plaintiff and they are trying to make property as disputed property so that the applicant shall sell the property to them in lower price. It is submitted that applicant/plaintiff is having bad eyes on the stairs of the respondent and wants to grab the stairs of respondent illegally and unlawfully. It is further submitted the applicant/plaintiff with malafide intentions create a dispute with ulterior motive. The respondent lodged several complaints with police but the police did not take any action as the applicant/plaintiff is an influential person. It is further submitted that on 11.09.2012, the applicant/plaintiff alongwith his goons and associates came there with ulterior motive tried to block the stairs of the respondent, then the respondent raised objections and thereafter a quarrel took place between the applicant/plaintiff and the respondent and the wife of respondent sustained injuries and police also reached on the spot and both parties lodged their complaints. MLC of wife of respondent was conducted at Holy Family Hospital. But police has failed to lodge any FIR against applicant/plaintiff whereas the police has registered FIR against respondent bearing FIR No. 740/2012 at PS Jamia Nagar under sections 325/341/34 IPC. Thereafter wife of respondent had filed a complaint u/s 156(3) Cr.P.C. which is pending adjudication. It is submitted that respondent stopped the applicant/plaintiff and his tenant to use the stairs of wife of respondent and the respondent and his wife are fully in control, use, occupation and in possession of stairs which is the part of property of respondent's CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 7 /14 wife. Plaintiff has filed suit on wrong and false facts. It is denied that the respondent again started unauthorized and illegal construction on the suit property and also closed the applicant cannot go his roofs and he could made construction on the roofs and he made a long five feets chajja without support which projected to the appellant property and also placed 500 kg. water tank on the chajja or that it is very dangerous for the people living below this extra illegal construction made by the respondent. The grounds of appeal mentioned in the memorandum were specifically denied.
8. The impugned judgment and decree dated 30.05.2018 has been primarily challenged by the appellant stating that the Ld. trial court has failed to consider the title documents and site plan of the appellant and thus, the evidence produced by PW1 and PW2 with all the necessary documents was not correctly appreciated.
9. In this regard, the plaintiff examined himself as PW1 deposing on the strength of his affidavit Ex. PW1/1 relying upon the documents Ex. PW1/B being the photographs, site plan Ex. PW1/C, police complaint Ex. PW1/D, FIR bearing no.740/12 Mark A, photographs of the suit property Ex. PW1/F, police complaint and kalandra Ex. PW1/G, complaint to SMCD and special Power of Attorney.
CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 8 /1410. It is pertinent to mention here that the present suit has been filed by the plaintiff namely Mohd. Abdul Hai as SPA holder of his wife namely Mrs. Shabina Begum as she is stated to be a pardanashin lady. The documents relied upon by the plaintiff as SPA holder were executed between the wife of the plaintiff namely Mrs. Shabina Begum and one Mohd. Jasmuddin Khalid qua the suit property bearing no.S-18/18, admeasuring 12X17 fts. situated in Khasra no.427/260, Jogabai Extension, Masjid Mumtaz Complex, New Delhi. The said documents included GPA in favour of the wife of the plaintiff, agreement to sell & purchase, affidavit, receipt, possession letter, Will alongwith the site plan. The plaintiff being the SPA holder has sought a decree of injunction against the defendant by way of the present suit for restraining the defendant no.1 from using the stairs of the plaintiff and as per the amended plaint, to further direct the defendant no.1 to remove the permanent wall made in front of the door of the stairs and projected roof i.e. Chhajja on the plaintiff's property and to clean all the hindrance in the passage of the stairs and also from stopping and threatening the plaintiff and his associates from passing the said stairs and for repairing the said stairs. The amended plaint further seeks direction to defendant no.2 to remove the entire unauthorized construction on the property of defendant no.1 and for removal of projected construction and water tank i.e. illegal chhajja on the property of the plaintiff.
CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 9 /1411. First of all, with regard to the existence of the stairs in the property of the plaintiff, the plaintiff had to prove that the said stairs were a part of his suit property. The plaintiff has asserted that his wife is the owner of the staircase and the defendant cannot assert his right of passage through the same. A perusal of the title documents relied upon by the plaintiff does not find any mention of any such stairs forming a part of the property of the plaintiff. PW1 in his cross examination stated that when the suit property was purchased, it was already constructed and no construction took place after the purchase of the property. The SPA holder further admitted that the staircase is not mentioned in the title documents however, he stated that it was included in his property and it is above his latrine and bathroom.
12. I have perused the documents of ownership in favour of the wife of the plaintiff. However, the said documents nowhere mention that the staircase form the part of the suit property. The said documents have been attested by notary 19.06.2010 and it was stated by the plaintiff that he rented the property to one Kalam who stayed in the property from the year 2008 till April, 2015. In order to prove the usage of the stairs by the plaintiff, the plaintiff could have examined the tenant namely Kalam. It is an admitted position that the staircase do not form a part of title documents of the plaintiff. The only other witness examined by the plaintiff is PW2 namely Sayed Afi, Mohd. who stated that he signed his affidavit six months back at his home and he did not know CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 10 /14 when his affidavit of evidence was prepared. He stated that he knows the plaintiff for last 20 years and the wife of the plaintiff is the owner of the suit property. He also admitted the suggestion that a tenant namely Kalam was residing in the suit property. However, the said tenant was never produced as a witness. Even otherwise, the second witness is an acquaintance of the plaintiff and he could not prove that the staircase was a part of property of the plaintiff.
13. Per contra, the defendant examined himself as DW1 on the basis of his affidavit Ex. DW1/A. He stated himself to be the owner of the property which he purchased after two years of the plaintiff having purchased the suit property. He admitted as per photograph Ex. PW1/2 that it was the same staircase which is the disputed staircase and he admitted that until the quarrel took place, the plaintiff, the defendant and the tenant Mr. Kalam used to use the stairs to go to the roof. The witness was further shown the photograph B in Ex. PW1/B2 to which she stated that the property at point X was his property and the property at point Z was the property of the plaintiff. He further admitted that all disputes and cases between the parties were with respect to the staircase and apart from using the disputed stairs, he has no means for reaching the roof.
14. DW2 is the wife of the defendant who deposed via affidavit Ex. DW2/A and relied upon documents of ownership of the CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 11 /14 suit property Ex. DW2/1, the site plan and the police complaints. When confronted with the title documents Ex. DW1/A, the witness admitted that the same did not mention that property was two storey. She stated that there was a common gallery between the rooms of the plaintiff and the defendant and the site plain was prepared by one M.N. Alam and admitted that a small staircase was constructed over the common gallery between the two properties.
15. DW3 stated that the stairs in dispute have been used by the defendant and his wife since inception and admitted that the defendant was constructing the first floor of the property in February, 2015.
16. DW4 deposed that he was the neighbour and he was also a witness to one of the fights between the plaintiff and the defendant over usage of the staircase.
17. DW7 prepared site plan Ex. DW2/2 of the property stated to be owned by the wife of the defendant and he stated that he personally visited the property before preparing the site plan in respect of the photograph Ex. PW1/P at point F.
18. Even though, vide the amended plaint additional relief was sought by the plaintiff however, no additional issue was framed and no evidence was led with regard to the additional prayers of removal of the CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 12 /14 permanent wall made in front of the doors of the stairs and projected roof i.e. Chhajja. The plaintiff has not been able to show that the said wall prayed to be pulled down, have been constructed by the plaintiff. The plaintiff also could not establish as to why would he seeks removal of unauthorized construction, if any, by defendant no.1 over his own property and as to what right of the plaintiff is being effected by the said construction. The plaintiff has further prayed for providing protection to his family as and when his family shift into the property. This prayer is clearly premature and vague and no evidence has been led by the plaintiff to prove as to how he is entitled to the prayer above.
19. It is pertinent to note here that the entire dispute between the parties is qua a staircase which was admittedly being commonly used by the plaintiff's tenant and the defendant. Both parties claimed themselves to be the owners of the staircase. The title documents relied upon by the plaintiff does not mention any staircase forming the part of the property. However, as rightly observed by the Ld. Trial court, the title documents of the defendant though not filed in original, do make a mention of the transfer of set of stairs. None of the parties could lead evidence as to whether the said staircase referred to in the title documents of the defendant are in fact the disputed staircase. The disputed staircase as per the pleadings can be accessed by both the parties as per the photographs and the same lead to the upper floor/terrace. In view of the contrary claims of title with respect to the CS No.83/2018 Mohd. Abdul Hai vs. Mohd. Irshad Page No. 13 /14 disputed staircase, it was essential for the plaintiff to seek a declaration of the title with respect to the staircase. Thus, there being a cloud over title, a suit simplicitor for injunction without a relief for declaration of title is not maintainable. Thus, there is not illegality in the judgment of trial court and I do not see any merits in the contentions of the appellant that the Ld. Trial court did not appreciate the evidence produced by the appellant correctly. I further reaffirm the findings of the Ld. Trial court that the present suit for injunction without a relief for declaration of the title is not maintainable on the basis of the principle of law as laid down in Anatula Sudhakar vs. P. Reddy and Ors. (2008) 4 SCC 594. Thus, the findings of the Ld. Trial court are confirmed and the dismissal of the suit by the Ld. Trial court is also confirmed. The present appeal stands dismissed accordingly.
20. TCR be sent back to the Ld. Trial court alongwith copy of this judgment in appeal.
21. Appeal file be consigned to Record Room.
Announced in Open Court (CHETNA SINGH)
On 20.08.2022 ADJ-06 (South East)
SAKET COURT:NEW DELHI
CS No.83/2018
Mohd. Abdul Hai vs. Mohd. Irshad Page No. 14 /14