Delhi District Court
Shri Latish Kumar vs Smt. Santra Devi on 20 May, 2014
IN THE COURT OF MS. SHELLY ARORA,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIANSHIP JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 476/11
UNIQUE ID NO. 02403C0024342010
SHRI LATISH KUMAR
S/o Late Shri Ram Saran Dass,
R/o H. No. 55, Vill. Begumpur,
Malviya Nagar,
New Delhi-110017. .................. Plaintiff.
Vs.
1. SMT. SANTRA DEVI
Widow of Shri Suraj Bhan,
R/o H. No. 55, Vill. Begumpur,
Malviya Nagar,
New Delhi-110017.
2. SHRI PARVEEN KUMAR
S/o Late Shri Suraj Bhan,
R/o H. No. 55, Vill. Begumpur,
Malviya Nagar,
New Delhi-110017.
3. SHRI UDAY VEER SINGH
S/o late Shri Suraj Bhan,
[minor] through his mother Smt. Ripu Chaudhary,
Widow of Late Shri Suraj Bhan,
CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 1 of 14
C/o Raj Pal Singh,
R/o H. No. 56, Vill. Begumpur,
Malviya Nagar,
New Delhi-110017. ..............Defendants.
DATE OF INSTITUTION : 27.01.2010
DATE OF RESERVING JUDGMENT : 16.05.2014
DATE OF PRONOUNCEMENT : 20.05.2014
JUDGMENT
Vide this judgment, I shall dispose of suit filed by Sh. Latish Kumar (hereinafter called plaintiff) against Smt. Santra Devi (hereinafter called defendant no. 1), Sh. Parveen Kumar (hereinafter called defendant no. 2), Sh. Uday Veer Singh (hereinafter called defendant no. 3) seeking permanent injunction thereby restraining defendants and their agents from blocking the common passage and from making any construction on the said common passage.
Relevant facts necessary for disposal of the present suit are as follows:-
1. In the suit, it is stated that the plaintiff is co-owner of H. No. 55, Village Begumpur, Malviya Nagar, New Delhi being the ancestral property which was partitioned between plaintiff and defendants in equal shares. It is further stated that a certain portion of the said ancestral partitioned property was common to the shares of both the parties for the purpose of ingress and CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 2 of 14 egress of the property. It is further stated that the defendants want to built stair-case on the common passage to which the plaintiff raised the objection qua which the complaint was made to the local police. Plaintiff was compelled to file the present suit seeking permanent injunction to restrain the defendants from blocking the common passage and from making any construction on the said common passage, on account of persistent attempt on the part of defendants to build the stair case in the common open passage.
2. Summons of the suit were issued to the defendants.
Defendant no. 1 appeared before the Court and filed Written Statement wherein it is submitted that defendant no. 3 is not the legal heir of Late Suraj Bhan. It is further stated therein that Sh. Suraj Bhan, husband of defendant no. 1 had raised construction on the share of his property whereas the plaintiff raised construction on his share of the portion of property, after two years from the construction made by Late Sh. Suraj Bhan, husband of defendant no. 1. It is further submitted that the plaintiff has never been in the possession of the portion alleged to be a common passage portion of plaintiff and defendants and thus, has no right, title and interest in the same. It is further submitted that the plaintiff in the month of October, 2009 broke open a portion of the wall Mark AB at the Ground Floor and CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 3 of 14 Mark CD at the First Floor in the Site Plan filed by defendant no. 1 and fixed the doors therein in order to grab the property of defendants no. 1 and 2. When objected, she was mercifully beaten by the plaintiff. Defendant no. 1 in her written statement further submitted that she made several police complaints in this respect. It is further submitted that the plaintiff broke the stair case existing at Point E of the Site Plan filed by her and had put an Iron Stair Case instead. It is further submitted that the gate of the house of the plaintiff is towards south of his house fixed at Point F in the Site Plan filed by defendant no. 1. It is further submitted that the plaintiff has intention to grab the property of defendant no. 1 and 2 although he has no right, title or interest in the common passage of the property as shown in yellow colour in the site plan relied upon by the plaintiff. It is further submitted as part of the WS that the plaintiff has been obstructing in the construction of the stair-case by the defendant no. 1 and in her usages of the passage as shown in yellow colour in the site plan relied upon by the plaintiff.
3. Defendants no. 2 and 3 never appeared before the court and were proceeded against ex-parte vide order dated 26.04.2010 passed by the then Ld. SCJ-cum-RC, South.
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4. Following issues were framed from the pleadings of the parties vide Order dated 14.09.2011 passed by the Ld. Predecessor of this Court:
1. Whether the plaintiff has no locus standi to file the present suit as alleged?OPD
2. Whether the plaintiff has not come to the court with clean hands and has suppressed the ture facts from the Court, if so, what facts?OPD
3. Whether plaintiff is entitled for a decree of permanent injunction as prayed for in the suit?OPP
4. Relief.
5. The matter was then listed for Plaintiff's Evidence. Plaintiff in his evidence examined himself as PW-1, Sh. Rajpal Singh as PW-2, Sh. Satpal Singh as PW-3, Sh. Rajesh Kumar as PW-4.
6. Plaintiff as PW-1 tendered his affidavit vide Ex. P-1, PW-2 as Ex. P-2, PW-3 as Ex. PW-3/A and PW-4 as Ex. PW-4/A. PW-1 has also relied upon a Site Plan Ex. PW-1/1.
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7. Defendant no. 1 in her evidence examined herself as DW-1. DW-1 tendered her affidavit in evidence as DW-1/1. She also relied upon documents Ex. DW-1/A and Ex. DW-1/B(Colly).
Ex. DW-1/A is the Site Plan relied upon by her and DW-1/B(Colly) are the photographs of the gate of the premises of the plaintiff.
8. Defendant no. 1 also produced Sh. Vijender Singh as DW-2 who tendered his evidentiary affidavit as Ex. D-2. She also produced Sh. Dharampal as DW-3A who tendered his evidentiary affidavit as Ex. D-3. H. Ct. Prabhat Kumar was produced as DW-3 with the summoned record pertaining to DD No. 26B dated 05.11.2009 and the photocopy of relevant page containing the entry of DD Register "B" placed on record as Ex. DW-3/1(OSR). Defendant Evidence was closed on the statement of defendant no. 1.
9. I have heard the final arguments advanced by counsel for plaintiff and defendants respectively.
10. Counsel for plaintiff contended that the defendant as well as the plaintiff was given the right to use the common passage for the ingress and egress of the mutually partitioned property and thus, the defendants cannot take away the right of the CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 6 of 14 plaintiff to continue using the same or to obstruct it by any means to the prejudice of the plaintiff herein. Counsel for the defendants, on the other hand, contended that the property was divided in equal shares and as such, portion claimed to be common to both plaintiff and defendants fell exclusively to the share of the defendants no. 1 and 2 with the right to ingress and egress to the plaintiff given on the South Side of his property.
11. I have perused the record carefully.
12. My issue-wise finding is as below: -
ISSUES NO.1:
Whether the plaintiff has no locus standi to file the present suit as alleged?OPD Burden of proving this issue is upon defendant no. 1. The ground taken in the WS by defendant no. 1 is that the plaintiff has no right, title or interest in the property in question and thus, he has no locus to file the present suit. As such, the plaintiff admittedly is a co-owner of the ancestral partitioned property. The dispute between plaintiff and defendant no. 1 has arisen qua a particular portion of that property which is to be adjudicated as part of this present matter. As such, defendant no. 1 has not led any evidence specifically on this point.
CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 7 of 14 Admittedly there is no written document certifying any partition between the plaintiff and defendants. Thus, at the outset, the title or interest of the plaintiff in the property or portion of the property cannot be ousted. Accordingly this issue stands decided against the defendant no. 1 and in favour of plaintiff.
ISSUES NO.2:
Whether the plaintiff has not come to the court with clean hands and has suppressed the true facts from the Court, if so, what facts?OPD Burden of proving this issue is upon defendant no. 1. True facts have to be ascertained by the court on the basis of evidence. It thus cannot be stated as to how and which facts whatsoever were suppressed by the plaintiff. Defendant no. 1 has not led any evidence specifically on this point. Accordingly this issue stands decided against the defendant no. 1 and in favour of plaintiff.
ISSUES NO.3:
Whether the plaintiff is entitled for decree of permanent injunction as prayed for in the suit?OPP Burden of proving this issue is upon plaintiff. It is admitted that the property in question bearing No. 55 Village Begampur, Malviya Nagar, New Delhi was the common ancestral property CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 8 of 14 which jointly fell into the share of plaintiff and husband of defendant no. 1. DW-1 Smt. Santara Devi in her cross examination admitted that she and the plaintiff have equal share in the said house. PW-2 Sh. Rajpal Singh in his cross examination also admitted that the suit property was divided between plaintiff and husband of defendant no. 1 during the life time of their father. The dispute in question is about a passage as shown in yellow colour in the site plan filed by plaintiff alongwith the plaint which is Ex. PW-1/1 on record. Plaintiff has claimed this portion as a common portion between the share of the property of plaintiff and the husband of defendant no. 1 to be used as a common passage by plaintiff and defendant no. 1 for ingress and egress of the property. A portion of the said common passage has been referred to A B C D in the site plan Ex. PW-1/1 in the cross examination of PW-1 wherein he has submitted that this portion is not open to sky and is thus covered. PW-3 Sh. Satpal Singh in his cross examination has submitted that plaintiff and defendant no. 1 have equal shares excluding the common passage and that the common passage has been correctly shown in the site plan Ex. PW-1/1.
DW-1 in her cross examination submitted that the entrance of the house was through a Gali in the east of the house when she joined the company of her husband after her marriage and that this was the only way to enter into the house.
CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 9 of 14 She also claimed that she as well as the plaintiff have equal share in the said house but claimed that the space shown in yellow in Ex. PW-1/1 falls within her portion and is not vacant. DW-2 Sh. Vijder Singh Dagar also admitted that there was only one way to enter the House No. 55 prior to the partition somewhere in the year 2000 when the house was partitioned in equal shares. He also admitted that the way to the house of the plaintiff remained intact even after the demolition and construction of the share of late Sh. Suraj Bhan. He also submitted that the plaintiff ended up opening a door on the other side of Gali subsequently at the time of construction of his portion. DW-3 Sh. Dharmapal in his cross examination submitted that father of the plaintiff at the time of settlement decided that the exit gates of plaintiff and defendant no. 1 be installed by them on their own particular sides in their respective portions after the construction of the new house. It has thus been admitted and also stands as a version of defendant that the H. No. 55 was one unit with only single gate on the eastern side for the ingress and egress of the property. The contention of the defendant no. 1 is primarily that the portion shown in yellow colour in Ex. PW-1/1 has fallen to her share and thus, cannot be taken to be the common passage.
As such, the settlement or the mutual family partition in this case is not denied. The term of settlement/partition to the CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 10 of 14 effect that both plaintiff and husband of defendant no. 1 got equal shares in the property is also not in dispute. But there is no written document specifying the precise dimensions of the property falling in share of plaintiff or husband of defendant no. 1 and also about the term of the exit gate to be used by plaintiff or husband of defendant no. 1 after partition as the portion of the property which earlier contained the gate for ingress and egress from the property fell into the share and portion of husband of defendant no. 1 so the arrangement, if any, decided at the time of partition to this effect stands in contention as there is no document specifying those terms.
It is not in doubt that there was only one gate on the Eastern side of the property prior to construction of the portion of the plaintiff. It has also come up in testimony that there was no dispute qua the passage till the construction of portion of property by the plaintiff. It is also not in dispute that the plaintiff constructed his property subsequent to the construction of property by husband of defendant no. 1. DW-1 denied the suggestion put forth to her by counsel for the plaintiff in her cross examination that the plaintiff continued using the passage in dispute till the construction of portion of the property by him. PW-3 Sh. Satpal Singh in his cross examination submitted that the property was equally divided between plaintiff and husband of defendant no. 1 excluding the common passage. PW-3 Sh.
CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 11 of 14 Satpal Singh also submitted that the defendant no. 1 constructed his share of the property completely leaving the common passage. Defendant no. 1 has not been able to prove or controvert the version put across by plaintiff as in as per the terms of settlement, plaintiff was to use the exit gate towards South of the property. This is more so as any such gate was never in existence prior to construction of portion of the property by the plaintiff. The plaintiff chalked out an additional exit gate towards the gali on the southern side of the property. This privilege was available to him on account of the portion of the property which fell in his share. A mutual arrangement to respect the privacy of each other, however, could have been reached at, to exclusively use the portions/gates in the property falling in respective shares of plaintiff and husband of defendant no. 1.
The above discussion makes it amply clear that the plaintiff since the property was single unit has been using that passage shown in yellow colour in the site plan Ex. PW-1/1 for ingress or egress of the property till he chalked out another gate on the south side of the property. Plaintiff has been able to underline effectively his continuous usage, both practically and logically till construction of his gate on the south side of the property. The south side gate undoubtedly gives him an advantage over the defendant no. 1 but he has been able to reasonably prove that the common passage as shown in yellow CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 12 of 14 colour in the Site Plan Ex. PW-1/1 was available for usage by both plaintiff and husband of defendant no. 1. Any version to controvert this finding has not been proved by defendant no. 1. The right of usage of this portion shown in yellow colour in Site Plan Ex. PW-1/1 cannot be taken away from the plaintiff. The preponderance of probabilities accordingly lie in favour of plaintiff. Plaintiff, as has been able to establish his right over the portion of property shown in yellow colour in the Site Plan Ex. PW-1/1, thus, has a right co-extensive with defendant no. 1 to use the said passage. Accordingly, plaintiff has thus proved himself to be entitled to an injunction in his favour to prevent the breach of an obligation in his favour.
This case was contested only by defendant no. 1. Defendant no. 2 and 3 were proceeded ex-parte by Ld. Predecessor of this court as they never appeared before the Court. Defendant no. 2 is the son of defendant no. 1 and also thus, one of the heir of Late Sh. Suraj Bhan, husband of defendant no. 1 so his position is equivalent to that of defendant no. 1. Defendant no. 1 has denied defendant no. 3 to be the legal heir of Late Sh. Suraj Bhan. As such, as defendant no. 3 has never appeared before the Court, but the address of defendant no. 3 has been shown to be distinct from the unit of the house in question and there is no relief claimed against defendant no. 3 in particular with no averment against defendant CS No. 476/11 Sh. Latish Kumar Vs. Smt. Santra Devi & Ors. Page No. 13 of 14 no. 3 in particular qua any obstruction or impediment in the usage of common passage, thus, no relief can be passed in favour of plaintiff to the prejudice of defendant no. 3.
In view of the above mentioned discussion, this issue stands decided in favour of plaintiff and against the defendant no. 1. The outcome shall also stand against defendant no. 2.
ISSUES NO. 4/RELIEF:
In view of observations given above, suit of plaintiff is liable to be decreed. Accordingly decree of permanent injunction is passed in favour of plaintiff and against defendants no. 1 and 2 thereby restraining the defendants no. 1 and 2 from blocking the common passage shown in yellow colour in the Site Plan Ex.
PW-1/1 and also from raising any construction on the said common passage of Property bearing No. 55, Village Begumpur, Malviya Nagar, New Delhi.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court on 20.05.2014 SHELLY ARORA JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
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