Delhi District Court
Sh. R. S. Vaish vs Union Of India on 16 February, 2012
Suit No. 398/2007
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 398/2007
Sh. R. S. Vaish,
S/o late Sh. Jai Dayal Mal,
R/o 45/4A, Mall Road,
Delhi110054.
.......PLAINTIFF
VERSUS
1. Union of India
through The Secretary,
Ministry of Defence,
South Block, New Delhi.
2. Military Estate Office,
Delhi Circle,
Delhi Cantonment.
........DEFENDANTS
DATE OF INSTITUTION : 31.10.2007
DATE OF RESERVATION : 07.02.2012
DATE OF DECISION : 16.02.2012
JUDGMENT: This is a suit for Permanent Injunction filed by the plaintiff against the defendants. The brief facts as averred in the plaint are as follows: R. S. Vaish vs. UOI & Ors. 1/16 Suit No. 398/2007
1. That the plaintiff is the owner of property bearing Municipal No. 45/4A, Mall Road, Delhi being part of plot no. 45. That in fact the plaintiff had purchased the aforesaid plot no. 45/4A from its erstwhile owner vide registered Sale Deed dated 22.11.1977 and thereafter he had constructed the residential building thereon to make it as his dwelling unit. That on the Eastern side of the plaintiff's property, there is a passage/ strip of land about 50 ft wide upto the length of 450 ft from the side of Mall Road and is running alongwith plot no. 45, Mall Road, Delhi.
That originally the entire land including the plot no. 39 & 45 etc was owned by Defence Department, out of which it had sold out an area of land measuring 3.2 acres bearing plot no. 45 to Rai Sahib Chaudhary Banarsi Dass and after him the same devolved upon his son Sh. Inder Prakash Chaudhary and subsequently it changed hand and was sold out to M/s Rentiers & Financiers Pvt. Ltd. vide Sale Deed dated 20.11.1961. Also the plaintiff had purchased the aforesaid plot from aforesaid M/s Rentiers and Financiers. That it is submitted that the aforesaid Company had R. S. Vaish vs. UOI & Ors. 2/16 Suit No. 398/2007 applied for approval of the lay out plan which was sanctioned on 16.03.1962 vide Resolution No. 757 of the Standing Committee of M.C.D. and after sanction of the building plans of BlockB dated 14.09.1973, the said company had started construction of BlockB and accordingly the completion certificate thereof was issued by MCD on 31.07.1976.
That later on the aforesaid M/s Rentiers & Financiers had applied for sanction of layout plan of the remaining portion of the aforesaid land, which accordingly, was sanctioned in the year 1973 which was revalidated on 02.08.1975. Subsequently, the plaintiff had purchased the aforesaid plot from aforesaid M/s Rentiers and Financiers, who had shown the 50 ft. wide strip as passage situated in the Northern Side of the same and with the said understanding the said plot had the frontage of this 50 ft wide passage, the plaintiff had purchase the same.
That on the eastern side of this strip, some land was alloted to CPWD and Education Department, upon which CPWD Quarters were constructed having approach from Lucknow Road R. S. Vaish vs. UOI & Ors. 3/16 Suit No. 398/2007 and the school building also has its approach through Lucknow Road side. However, few months ago, CPWD Quarters has been demolished and in its place Metro Station has been built which also has its approach from Main Mall Road as well as from the side of Lucknow Road.
That on the Western side of aforesaid, 50 ft wide passage/ strip, there are various properties i.e. private Bungalows, which are being used for residence by all the respective Bungalow owners. The plaintiff being the owner of property No. 45/4A has been residing therein alongwith his family members since beginning. All these properties have their boundary walls and gates upon the said strip.
That the aforesaid 50 ft. wide strip/ passage has a dead end and leads nowhere except to aforesaid properties situated on its western side. On the back side of this strip, there is some jungle type areas in which a large number of self grown trees, plants etc. are there since long. The said strip/ passage is the subject matter of the present suit. That in all the concerned R. S. Vaish vs. UOI & Ors. 4/16 Suit No. 398/2007 Government records, layout plans sanctioned in 197273 and previous sale deeds, the aforesaid passage has been shown as the passage of 50 ft wide including the layout plan of the year 1962.
This strip has been in continuous use of the plaintiff as well as his Predecessors in Interest (the erstwhile owners) for their ingress and egress for the last more than 7080 years and by his Predecessors have acquired easementary rights over the said strip as easement of necessity. The plaintiff's property has no other motorable approach except this passage, who accordingly has been enjoying the said motorable approach the through this passage.
That it is pertinent to submit that in June, 1983, the defendants had handed over the possession of the land measuring 3.1933 acres out of the plot no. 39 to Education Dept. and then also left the passage as the open space for ingress and egress for the plaintiff as well as other Bungalow owners. R. S. Vaish vs. UOI & Ors. 5/16 Suit No. 398/2007
That on 10.10.2007, few officials/ employees of defendants visited the passage in question and were making measurement etc. thereof and on enquiry, it revealed to the plaintiff that they intend to construct a boundary wall in front of the aforesaid Bungalows inter alia including the plaintiff's Bungalows to convert the said passage into their exclusive entry/ passage to the flats/ Army Quarters which are situated on the rear side which was strongly opposed by the plaintiff who stated that the said common passage cannot be blocked or obstructed by any one which has been in existence for the last several decades and has been in use as such by all the Bungalow owners, but they did not pay any heed to the same and informed the plaintiff that they cannot allow the Bungalow owners to use the said strip any more as they have been directed by way of superiors to close the access of all the other concerned and to make the exclusive passage for their flats situated on the rear side.
That thereafter the plaintiff alongwith few neighbourers went to the office of the defendants to enquire about the whole R. S. Vaish vs. UOI & Ors. 6/16 Suit No. 398/2007 matter whereupon it was confirmed that the defendants are proceeding very fastly to close the access of all the bungalow owners through the said common passage and to make it the exclusive passage for the Army Quarters only. That immediately thereafter, the plaintiff made a written Representation to the Higher Authorities of the defendants, thereby expressing their difficulties, grievances. That the plaintiff is in continuous and undisturbed user of this 50 ft wide strip and has easementary rights, therefore, the defendants have no right to disturb the peaceful user of the plaintiff.
2. The aforesaid factual matrix gave the cause of action to the plaintiff to file the present suit seeking the relief of Permanent Injunction thereby restraining the defendants from interfering with the peaceful use and enjoyment of 50 ft wide strip in question situated in plot no. 39, Mall Road, Delhi by the plaintiff for his ingress and egress as well as for parking his car/ vehicle in the passage in question and further not to raise any wall or constructions or any type of obstructions which would block the R. S. Vaish vs. UOI & Ors. 7/16 Suit No. 398/2007 free use of the said strip as common passage for the plaintiff's bungalow bearing no. 45/4A, Mall Road, Delhi110054.
3. In the written statement filed on behalf of the defendants, the allegations of the plaintiff in the plaint are denied and it is stated that the present suit is not maintainable for want of notice under Section 80 of the CPC. That the suit is not maintainable since the plaintiff has not come with clean hands and concealed the facts before the Court, since the plaintiff has not submitted the sanctioned plan of his house, 45/4 by the MCD to clear the entrance of the house which is used for parking. That the suit is not maintainable since no permission has ever been granted nor sought by the plaintiff to use the Government/ Defence Land situated on khasra no. 45 in the East in the A & B Block of these houses. It is submitted that the permission to one late Sh. I. P. Chaudhary has already been cancelled by a Letter no. 710/67/L/L&C/76 dated 16.12.1988 by Govt. of India, Ministry of Defence (DG DE), New Delhi66.
R. S. Vaish vs. UOI & Ors. 8/16 Suit No. 398/2007
The land legally belongs to Ministry of Defence. It is denied that on the northern side there is a jungle. It is submitted that there are residential quarters of Army Personnel. Besides, there is Garrison Engineer Office and Defence Research and Development Organization Office and that is very sensitive area due to its nature of work. It is denied that the plaintiff purchased the plot in 1977 and since then residing there and on the other hand alleged to have used the land for roaming for last more than 80 years. The plaintiff has no right, title and interest on the defence land. It is further denied that the plaintiff is in continuous and undisturbed user of this 50 ft wide strip and has easementary rights.
4. The plaintiff filed the replication to the written statement of defendants wherein the plaintiff reiterated and reaffirmed the contents of the plaint and contested the averments made by the defendants in its written statement.
5. From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 07.11.2009: R. S. Vaish vs. UOI & Ors. 9/16 Suit No. 398/2007
1. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP.
2. Relief.
6. It is pertinent to mention here that despite several opportunities and cost being imposed, plaintiff has not adduced any evidence. Accordingly, vide orders dated 19.12.2011, the right of the plaintiff to adduce plaintiff's evidence was closed.
7. In order to prove its case, defendants have examined only one witness i.e. DW1 Lt. Colonel Tushar Pratim Boruah, Composite Food Lab. (Asc.) Ministry of Defence, Timarpur, Delhi who vide his affidavit Ex. DW1/X relied upon the documents Ex. DW1/1 which is the site plan, Ex. DW1/3 is the letter, Ex. DW1/4 is the order dated 11.05.2009 and Ex. DW1/5 is the order dated 19.03.2009.
8. It is pertinent to mention that DW1 was not crossexamined by the plaintiff despite opportunities. Thereafter, vide separate statement of Ld. counsel for defendants, defendant's evidence stood closed and matter was fixed for final arguments.
9. I have heard Sh. J. N. Vashist, Ld. counsel for defendants. None appeared on behalf of the plaintiff to address even the final R. S. Vaish vs. UOI & Ors. 10/16 Suit No. 398/2007 arguments despite opportunity. Accordingly, the matter is being adjudicated upon on merits on the basis of the material available on record.
10.My issuewise findings are as follows:
Issue No. 1: Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. It is the case of the plaintiff that he is the owner of property bearing Municipal No. 45/4A, Mall Road, Delhi being part of plot no. 45. That on the Eastern side of the plaintiff's property, there is a passage/ strip of land about 50 ft wide upto the length of 450 ft from the side of Mall Road and is running alongwith plot no. 45, Mall Road, Delhi. That on the eastern side of this strip, some land was alloted to CPWD and Education Department, upon which CPWD Quarters were constructed having approach from Lucknow Road and the school building also has its approach through Lucknow Road side. However, few months ago, CPWD Quarters has been demolished and in its place Metro Station has been built which also has its approach from Main Mall Road as well as from the side of R. S. Vaish vs. UOI & Ors. 11/16 Suit No. 398/2007 Lucknow Road.
That on the Western side of aforesaid, 50 ft wide passage/ strip, there are various properties i.e. private Bungalows, which are being used for residence by all the respective Bungalow owners. This strip has been in continuous use of the plaintiff as well as his Predecessors in Interest (the erstwhile owners) for their ingress and egress for the last more than 7080 years and by his Predecessors have acquired easementary rights over the said strip as easement of necessity. The plaintiff's property has no other motorable approach except this passage, who accordingly has been enjoying the said motorable approach the through this passage.
That on 10.10.2007, few officials/ employees of defendants visited the passage in question and were making measurement etc. thereof and on enquiry, it revealed to the plaintiff that they intended to construct a boundary wall in front of the aforesaid Bungalows inter alia including the plaintiff's Bungalows to convert the said passage into their exclusive entry/ passage to the flats/ Army Quarters which are situated on the rear side. R. S. Vaish vs. UOI & Ors. 12/16 Suit No. 398/2007
However, no plaintiff's evidence has been adduced on behalf of plaintiff despite several opportunities and accordingly, plaintiff's evidence had been closed vide orders dated 19.12.2011. Thus, the plaintiff has not been able to prove a single averment as was made by him in the plaint.
On the other hand, the defendants, vide the testimony of DW1, have proved that the plaintiff r/o H. No. 45/4A was given passage of 30' on probyn road by the seller, through Riviera Apartment's entrance. Besides the passage of 30' on Probyn road has already been given by the seller for parking as per site plan. The said site plan is proved as Ex. DW1/1. Thus there is already an alternative passage available with the plaintiff for entrance to his house.
The defendants have also proved a letter for the year 1988 Ex. DW1/3 whereby the Station Head Quarters had already revoked various letters issued with regard to the suit property in view of the case titled as J. P. Gupta vs. UOI bearing suit no. 464/1983. Thus the plea of the plaintiff regards the use of passage has been R. S. Vaish vs. UOI & Ors. 13/16 Suit No. 398/2007 rendered as baseless.
Further the plaintiff has not specified how he became entitled to the use of the said passage in the entire plaint. He has simply averred that his Predecessors were using the said passage for around 80 years and thus have acquired easementary rights. As is stated, no evidence has been led by the plaintiff to prove this fact.
On the other hand, the defendants, vide the testimony of DW1, have categorically proved that the plaintiff has no concern with the strip of land in question which is under ownership and control of the defendants since Government of India had acquired the same and handed over to the Ministry of Defence. The testimony of DW1 is unrebutted and unimpeached since plaintiff neither adduced in evidence in support of his contentions nor came forward to cross examination of DW1.
Further reliance is also placed in the case of Rajender Kakkar & Ors. vs. DDA 1994 I Delhi 432, and Bakshi Ram vs. DDA 1993 (32) DRJ wherein it has been held that "courts should not grant any injunction or relief which will have the result of permitting R. S. Vaish vs. UOI & Ors. 14/16 Suit No. 398/2007 or protecting the continued illegal possession of public land".
The said law has been laid down by the Hon'ble Supreme Court even in the case of Premji Rattansay Shah & Ors. vs. UOI & Ors JT 1994 (6) SCC 85. Just because the plaintiff has averred in the plaint that he has acquired easementary right, does not grant him any right on Government land.
In the absence of any evidence led on behalf of plaintiff and appraisal of the evidence led on behalf of defendants, plaintiff has miserably failed to show that he has any right, title or interest in the strip of land in question. Accordingly, the relief of permanent injunction as sought for, cannot be granted to him.
Moreover, in the written statement and during the course of the arguments, defendants have raised the plea that the suit is not maintainable for want of notice under Section 80 CPC which is mandatory requirement.
There is not a single averment made in the plaint to the effect that any notice under Section 80 CPC or in fact any legal notice had been served upon the defendant/ UOI prior to the R. S. Vaish vs. UOI & Ors. 15/16 Suit No. 398/2007 institution of the present suit. There is no averment in the plaint that there was any reasonable ground for urgency in filing the present suit for injunction and thus even the relief under Section 80 (2) CPC cannot be granted to the plaintiff.
Accordingly, in view of the aforesaid discussions, this issue is decided against the plaintiff.
Relief In view of my aforesaid findings, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room. Pronounced in the open court today on 16.02.2012.
(SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 16.02.2012 R. S. Vaish vs. UOI & Ors. 16/16