Delhi District Court
Vijay Shanker Dubey vs Dheeraj Dubey on 9 April, 2025
IN THE COURT OF SH. UMESH KUMAR,
JSCC-CUM- ASCJ-CUM-GUARDIAN JUDGE-02/CENTRAL,
TIS HAZARI COURTS/ DELHI
CS SCJ 2871/16
CNR No. DLCT03-006305-2016
In the matter of:-
1. Vijay Shanker Dubey
S/o Late Sh. Autar Shanker Dubey,
2. Raj Kumari Dubey
W/o Late Sh. Gopal Shanker Dubey,
Both R/o 1248-49, Rangmahal,
Behind Novelty Cinema,
Delhi .....Plaintiffs
Vs.
1. Dheeraj Dubey
S/o Late Sh. Subhash Shanker Dubey
2. Vishal Dubey
S/o Late Sh. Subhash Shanker Dubey
3. Amrita Dubey
D/o Late Sh. Subhash Shanker Dubey
All R/o:-
1248-49, Rangmahal,
Behind Novelty Cinema, Delhi-110006
Also At:-
Millenium Computers
1230, Rangmahal, Gali Teliyan,
S.P.M Marg Behind Novelty Cinema,
Delhi-110006
4. North Delhi Municipal Corporation
Through Its Commissioner
Civic Centre, Minto Road, Delhi.
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2025.04.09
17:49:56 +0530
C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 1 of 11
5. SHO
PS Lahori Gate, Delhi-110006 ...Defendants
Date of institution of Suit : 22.10.2016
Date on which Judgment was reserved : 28.03.2025
Date of pronouncement of the Judgment : 09.04.2025
(SUIT FOR PERMANENT AND MANDATORY INJUNCTION)
JUDGMENT
1. The present suit has been instituted by the plaintiff for the relief of permanent injunction restraining the defendant no.1 to 3 from raising any further illegal and unauthorized construction in the property bearing no. 1248-49, Rangmahal, Behind Novelty Cinema, Delhi-110006 as shown in red colour in the site plan (hereinafter referred to 'suit property'). The plaintiff has also sought a decree of mandatory injunction directing the defendant no.1 to 3 to remove the illegal and unauthorized construction and defendant no.4 be directed to demolish the entire illegal and unauthorized construction in the suit property.
Plaintiff's Case
2. Pleaded case of the plaintiff is that the suit property is an ancestral property and undivided joint property of late Shri Prem Shanker Dubey i.e. grandfather of the plaintiffs and great grandfather of the defendants no. 1 to 3. The suit property is constructed upto second floor and ground floor and first floor are having 8 rooms and second floor is having four rooms. It is stated that the plaintiff no. 1 is having three rooms at the ground floor and two rooms and store kitchen at the First Floor and three rooms at the second floor and the plaintiff no. 2 is having on room and store in the suit UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:01 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 2 of 11 property. The defendants no. 1 to 3 are having two and one room at the second floor and having common latrine bathroom in the suit property. It is stated that the defendants no. 1 to 3 started raising illegal and unauthorized construction over the suit property after demolishing the common terrace, bathroom and store and merging the same with the rooms under their possession and also curtailed the area of the terrace without the consent or permission from the joint owners / plaintiffs /legal heirs and without having any sanctioned site plan. It is further stated that defendant no.1 to 3 also threatening the plaintiffs to demolish both the common Indian style latrine and will make it as western style latrine. It is further stated that the building materials are also lying nearby the suit property which clearly prove the fact that defendant no.1 to 3 are carrying illegal construction. It is further stated that the plaintiffs also approached the concerned police station to take appropriate action against the defendant no.1 to 3, however no action has been taken by the police. It is further stated that by making the illegal and unauthorized construction in the suit property, the defendant no.1 to 3 have illegally curtailed the legal rights of the plaintiffs to enjoy the suit property. Thereafter, the plaintiff left with no other option, but to approach the Hon'ble Court. Hence, the present suit.
3. Summons of the suit were sent to the defendants which stood served upon the defendants. Upon service of summons of the suit, defendant no.1 to 3 have filed the written statement. Defendant no.4/ MCD did not file any written statement.
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:08 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 3 of 11 Written statement of defendant no.1 to 3.
4. In the written statement filed on behalf of defendant no.1 to 3, it is stated that the plaintiffs have not come to the Court with clean hands and guilty of various acts of omission and commission. It is stated that the present suit of the plaintiff is bad for non-joinder of necessary parties. It is stated that the plaintiff no.1 is not residing in the suit property and currently residing at Flat No. F3, Plot No. 5/C, Bhama Shah Marg, Near Kirpal Bagh, Delhi-09. It is stated that suit property is undivided property and as such no portion of the suit property is relates to any specific joint owner and the same belongs jointly to all the owners. It is stated that plaintiff no.1 is illegally and commercially using the ground floor of the suit property to the detriment of other joint owners and has illegally rented the ground floor for commercial purposes such as warehousing of obnoxious chemicals and substances. The plaintiff no.1 has also forcefully encroached two rooms, stores, latrine and bathroom at the first floor and other three rooms at second floor. It is stated that plaintiff no.1 does not allow other joint owners to use the portion under his illegal possession and if other joint owners try to use the same, plaintiff no.1 threaten them with dire consequences. It is stated that there is no unauthorized construction being raised by the defendants no.1 to 3 in the suit property and they have carried out only some necessary repairing activities such as plastering, re-roofing etc. The defendant no.1 to 3 have denied the averments of the plaintiff in the plaint. Finally written statement prayed for dismissal of the suit.
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:13 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 4 of 11
5. Replication was filed on behalf of plaintiffs to the written statement of the defendant no.1 to 3, wherein plaintiffs have denied all the averments made by the defendant no.1 to 3 in the written statements and has reiterated the statement of facts as mentioned in the plaint. The same is not repeated herein for the sake of brevity.
6. Upon completion of pleadings, the following issues were framed vide order dated 07.03.2017 by the Court:-
(i) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint?OPP
(ii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for in the plaint?OPP
(iii) Relief.
Plaintiff's evidence
7. To prove its case, plaintiff no.1 examined himself as PW-1 and filed his evidence by way of affidavit which is Ex. PW1/A and relied upon the following documents:-
1) Site Plan Ex. PW1/12) Photographs of the illegal and unauthorized construction made by defendant no.1 to 3 over the suit property Ex. PW1/2 (colly)
3) Copy of Election Card and Aadhar Card of deponent Ex.PW1/3 and Ex. PW1/4
4) Copy of House Tax of the suit property Ex. PW1/5
5) Copy of Electricity Bill of the suit property Mark A
6) Copy of water bill of the suit property Ex. PW1/7
7) Copy of death certificate of father of deponent Ex. PW1/8
8) Copy of complaint dated 11.10.2016 to SHO Ex. PW1/9
9) Copy of complaint dated 18.10.2016 to Commissioner, UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:17 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 5 of 11 NDMC, SDM Daryaganj, SHO Lahori Gate, DCP North and LG Delhi Ex. PW1/10.
8. PW-1 was partly cross examined on behalf of defendant no.1 to 3 and vide order dated 20.03.2024, right of defendnat no.1 to 3 to further cross examine PW-1 was closed. PW-1 was duly cross examined on behalf of defendant no.4/ MCD.
Defendant's evidence
9. Defendant no.1 to 3 did not lead any evidence in the matter desipte opportunities and vide order dated 19.03.2025, the right of defendnat no.1 to 3 to lead DE was closed. Defendant no.4/ MCD opted not to lead DE. Thereafter, the matter was listed for final arguments.
Final arguments
10. During the course of final arguments, Ld counsel for plaintiffs relied upon the exhibited documents of the plaintiff alongwith the deposition of PW-1 and prayed for a decree of the suit. On the other hand, counsel appearing on behalf of defendant no.1 to 3 and defendant no.4 prayed for dismissal of this suit.
11. The issues are decided as under:-
Issue no. (i) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint?OPP Issue no. (ii) .
Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for in the plaint?OPP.
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:22 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 6 of 11
12. Issue no. (i) and (ii) are taken up together for discussion as both the issues are interconnected and require appreciation of common facts and evidence.
13. The onus to prove these issues was upon the plaintiffs.
14. It is the case of the plaintiffs that they are co-owners of the suit property alongwith defendant no.1, 2 and 3 who have carried out unauthorized construction over the suit property. It is averred by the plaintiffs that the suit premises is constructed upto second floor wherein ground floor and first floor have eight rooms each and second floor has four rooms, however, it has not been explained by the plaintiffs which specific rooms are in possession of the respective parties, though the parties are joint owners of the suit premises being legal heirs of Late Sh. Prem Shankar Dubey. The plaintiffs have alleged that the defendant no.1 to 3 have demolished the common terrace and curtailed the common terrace and have further demolished the common bathroom and merged it with the rooms in their possession without the consent of all the legal heirs. During the cross examination of plaintiff no.1 / PW-1, Ld counsel for defendant no.1 to 3 had asked whether the extent of construction of the suit property was mentioned in the Will executed by Late Sh. Prem Shankar Dubey to which PW-1 had replied that he could not answer the orally and could answer only after reading the Will. Another question was put to PW-1 whether any site plan was annexed with the Will showing the extent of UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:26 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 7 of 11 construction to which PW-1 had replied that he did not remember if any site plan was annexed with the Will. PW-1 deposed that he did not remember how many storeys (floors) in the suit property was shown to have been constructed in the case filed by Sh. Ved Shankar Dubey before Hon'ble High Court of Delhi. The plaintiffs have not brought on record any original plan of entire building at any point of time so as to ascertain the construction in building at that point of time and to compare the same with the present status of construction in suit property. The testimony of PW-1 regarding the unauthorized construction by defendant no.1 to 3 is not specific but vague. He has not specifically stated how the common terrace has been demolished and how the area of the terrace has been curtailed. It has not been explained by PW-1 in his evidence affidavit or otherwise on which floor the common bathroom has been demolished and merged with the rooms by defendant no.1 to
3.
15. The plaintiffs have relied upon the site plan Ex. PW1/1 to show the unauthorized construction in the suit property by defendant no. 1 to 3, however even the site plan is not in conformity with the pleadings of the plaintiffs as certain portions at first floor and second floor have been highlighted in red colour but the specific averments regarding manner of unauthorized construction are missing in the plaint as well as in evidence affidavit of PW-1. It is settled law that any document filed with the plaint or tendered in evidence can be read in support of the pleadings / testimony of the party and not vice-versa. The averments in the plaint are required Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:35 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 8 of 11 to be specific and unambiguous consisting of all the material facts.
16. At this juncture, it is pertinent to mention here that the plaintiffs have mentioned in the plaint that the ground floor of the suit property consists of eight rooms whereas in the written statement filed by defendant no. 1 to 3, it has been mentioned that apart from eight rooms at the ground floor, there exists a basement also which has been denied by the plaintiffs in their replication. Surprisingly, in the site plan Ex. PW1/1 filed by the plaintiffs, a basement plan is shown. Even though the site plan has been filed by the plaintiffs but the same does not corroborate the pleadings of the plaintiffs entirely, hence, it is apparent that at least one of the assertions of the plaintiffs is false. It is safe to conclude that plaintiffs have not disclosed the entire true facts in the present case.
17. During the cross examination of PW-1 by Ld counsel for defendant no. 4/ MCD, PW-1 had denied the suggestion that the suit property was constructed without any site plan. Thereafter, PW-1 voluntarily deposed that the property is more than 100 years old. It is highly improbable that a basement was built in the suit property 100 years ago and no document has been brought on record by the plaintiffs to prove otherwise.
18. During the course of proceedings, a status report dated 15.11.2016 was filed by defendant no.4/ MCD wherein it is stated that unauthorized construction at second floor in the form of one room without sanction plan was noticed and the same has been booked UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:40 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 9 of 11 u/s 343/344 (1) of DMC Act vide file no. 272/80/B/UC/CZ/2016 dated 15.11.2016. The status report is silent on the aspect of demolition of common terrace / curtailment of common terrace and merging of common bathroom with the rooms by defendant no.1 to
3. The plaintiffs have failed to prove on record the file no. 272/80/B/UC/CZ/2016 dated 15.11.2016 regarding booking of property u/s 343/344 (1) of DMC Act. The plaintiffs neither summoned any record from the office of MCD nor summoned any official from the office of MCD to bring on record any sort of unauthorized construction. Even if it is assumed that defendant no. 1 to 3 are carrying out any construction, then the onus is upon the plaintiffs to prove that the construction is unauthorized. PW-1 has also relied upon certain photographs Ex. PW1/2 (colly) (14 photographs) to show the alleged unauthorized construction, however, the same are not proved in accordance with law as they are not supported any certificate u/s 65-B of Indian Evidence Act and therefore cannot be relied upon. Further, PW-1 has relied upon complaints Ex. PW1/9 and Ex. PW1/10 which are photocopies and the plaintiffs have not summoned the concerned witnesses to prove the same. Merely filing of the complaints alleging unauthorized construction are not sufficient and the plaintiffs are duty bound to prove the contents of all the complaints. In the present case, the plaintiffs have put their case vaguely and except bare testimony of PW-1, no cogent evidence has been led by the plaintiffs to prove their assertions.
19. Although, the defendants have not led any evidence, however, it Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.04.09 17:50:44 +0530 C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 10 of 11 cannot lead to any inference that the case of the plaintiffs is deemed to be admitted. As per Section 101 of Indian Evidence Act, the onus is upon the plaintiffs to prove their case by leading cogent evidence, however, the plaintiffs have failed to prove their averments as the plaint itself is lacking with material and relevant facts and no cogent evidence has been led by the plaintiffs in support of their averments. In view of the same, plaintiffs have failed to discharge their onus to prove both the issues, hence, both the issues are decided against the plaintiffs and in favour of the defendants.
Relief
20. In view of the aforesaid appreciation and findings, the present suit of the plaintiffs stands dismissed.
21. Parties to bear their own costs.
22. Decree sheet be prepared accordingly.
23. File be consigned to Record-Room after due compliance.
UMESH Digitally signed by
UMESH KUMAR
Pronounced in the open
KUMAR Date: 2025.04.09
17:50:50 +0530
(Umesh Kumar)
Court on 09.04.2025 JSCC-Cum-ASCJ-Cum-GJ-02
Central, Tis Hazari Courts.
09.04.2025
C S SCJ 2871/16 Vijay Shanker Dubey Vs. Dheeraj Dubey Page 11 of 11