Delhi District Court
M/S C.S. Bhatnagar & Company vs Bhagwan Singh on 18 January, 2012
IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JUDGE05
CENTRAL, DELHI
Suit No. 470/10
IN THE MATTER OF:
1. M/s C.S. Bhatnagar & Company
Through its partner Mr. G.S.Bhatnagar,
S/o late Shri C.S. Bhatnagar,
64, Regal Buildings, Connaught Place,
New Delhi 110001
2. Sh. J. S. Pahwa
Proprietor
M/s J.S. Pahwa & Company
64, Regal Buildings, Connaught Place
New Delhi110001. .............PLAINTIFFS
VERSUS
1. Bhagwan Singh
Proprietor Regal Buildings (East)
since deceased (Through LRs)
(i) S. Preminder Singh
S/o Late Shri Bhagwan Singh
R/o R61, Sujan Singh Park
New Delhi
(ii) Shri Satinder Singh
S/o Late Shri Bhagwan Singh
R/o R179, Golf Links
New Delhi
Suit No. 470/10 Page no. 1 of 10
(iii) Shri Tejbir Singh
S/o Late Bhagwan Singh
R/o R67, Sujan Singh Park
New Delhi
(iv) Mrs. Amar Bhagwant Singh
W/o Late Shri Bhagwan Singh
R/o R179, Golf Links
New Delhi
2. Anand Gupta & Associates
Through Shri. T.R. Anand
65Regal Buildings, Connaught Place
New Delhi 110001
3. Sh. Romesh Sharma
S/o Shri Stayanarayan
Proprietor, Reliance Developers and Investors
S41, Panchsheel Park
New Delhi
4. N.D.M.C.
Through its Administrator
Town Hall, Sansad Marg
New Delhi
...........DEFENDANTS
Date of Institution : 24.05.1996
Date of reserved for judgment : 15.12.2011
Date of decision : 18.01.2012
Suit No. 470/10 Page no. 2 of 10
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall dispose off a suit for Permanent Injunction. The brief facts of the suit are as follow :
2. It is stated that plaintiff no. 1 is a firm duly registered and tenant with respect to 1000 Sq. feet of the second floor of Regal building, which is part of 64, Regal Buildings, Delhi and most specifically shown in Red color in the site plan & plaintiff no. 2 is tenant in the premises adjacent to premises of plaintiff no. 1 with respect to approx. 245 sq. feet and shown in green color in the site plan ( herein after referred as suit property). It is further submitted that the portion shown as A, B, C & D in site plan is in joint possession of tenants of second floor and is a valuable right of easement, light ventilation etc.
3. It is further submitted that in the year 1982, plaintiff received a letter dated 27.5.1982 from defendant no. 1 whereby plaintiffs were informed that the defendant had leased the portion under their tenancy to defendant no. 2 and future rent to be paid to defendant no. 2. It is further submitted that plaintiffs are making payment of rent of suit premises to defendant no. 2 till 30.06.1996.
Suit No. 470/10 Page no. 3 of 10
4. It is further submitted that sometime around 1995 plaintiffs received photocopies of notice sent by the Sh. R.N.Chawla, Advocate on behalf of defendant no. 1 to defendant no. 2 to the effect that the GPA executed by defendant no.1 in favor of defendant no. 2 has been canceled.
5. It is further submitted that the defendant no. 2 extended threats to plaintiff and other tenants of defendant no. 1. On 11.3.1996 the defendant no. 3 along with mob of people came to suit premises and claimed that he had purchased the suit property and threatened that the plaintiffs can be dispossessed at any moment.
6. It is further submitted that on 13.5.1996 the plaintiffs are shocked to see that the lock which is fixed at the door at portion marked LM in the site plan is forcibly broken and thrown on the floor. On 23.5.96 the plaintiffs are certain building material lying in the portion marked A, B, C & D and on the enquiry came to know that the same was stacked by defendant 1 and 3 who proposes to create hindrances and obstruction in the open space shown as A, B, C & D. Hence the present suit is filed to restrain the defendants from dispossessing the plaintiffs forcibly from the suit property and to restrain the defendant to raise unauthorized construction at A, B, C & D portions.
7. On the other hand the defendant no. 1 in his written statement has Suit No. 470/10 Page no. 4 of 10 permitted the plaintiffs as tenant in suit premises. It is further submitted that in the year 1982 the defendant no. 2 was appointed as attorney by defendant no. 1 to realize the rent from tenants and plaintiff including defendant no. 1. But subsequently the said attorney was revoked. It is further submitted that the portion A, B, C and D is passage for common use for all tenants. The answering defendant has denied the fact that it had ever created hindrances and obstructions in the peaceful enjoyment of suit premises by plaintiff. It also denied that the building material was stacked for raising unauthorized construction on the terrace of second floor. Therefore prayed that suit of the plaintiff be dismissed.
8. The defendant no. 2 in his written statement has stated that the portion marked A, B, C & D does not form part of plaintiffs tenancy but plaintiffs have right of entrance and exit through the said portion. It is further submitted that answering defendant has never created any hindrance or obstruction in respect of any portion of suit property. It is further submitted that answering defendant has never threatened the plaintiffs to dispossess them forcibly. It is prayed that the suit of plaintiff be dismissed.
9. The defendant no. 3 had not filed his written statement but his counsel on 25.5.1996 had made a statement on oath that Suit No. 470/10 Page no. 5 of 10 defendant no. 3 shall not raise construction which require permission of NDMC and shall not dispossess the plaintiff except according to due process of court.
10.Defendant no. 4 has also not filed his written statement and proceeded exparte by order dated 06.11.1996.
11.From the pleading of the parties following issues are framed by order dated 24.5.2003.
1) Whether portion mark ABCD as shown in site plan annexed to the plan is in joint possession of tenants on the second floor? OPP
2) Whether plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP1 and 2.
3) Relief.
12. To prove his case plaintiff has examined Sh. GS Bhatnagar as PW1 who filed his evidence by way of affidavit ex. PX, wherein PW1 reiterated the facts mentioned in plaint and relied upon the following documents.
Form A and Form B issued by Registrar of firms ex. PW1/1 and PW1/2 respectively.; Site plan is ex. PW1/3; Various photograph of site are ex. PW1/4 TO 7.; Copy of bill and receipt is ex. PW1/8 & 9 ; Copy of letter dated 27.5.1982 is marked A is ex. PW1/10.; Bill NO. 237 Ex. PW1/11; copy of receipt Ex. PW1/12; bill dated 2.4.96 Ex. PW1/13; copy of receipt dated 21.5.96 Ex. PW1/14; copy of Suit No. 470/10 Page no. 6 of 10 the communication dated 20.3.96 Ex. PW1/15 and copy of police complaint Ex. PW1/16.
13. Plaintiff has also examined Sh. GS Pahwa as PW2 who has produced his evidence vide affidavit ex. PY and deposed on the similar lines as PW1 has deposed.
14.Defendants have not led any evidence and their evidence was closed vide order dated 23.1.2008 and 25.8.2008.
15.Arguments heard. File pursued and my issue vise finding is as follows:
16. Issue no.1. Whether portion mark ABCD as shown in site plan annexed to the plan is in joint possession of tenants on the second floor? OPP The plaintiffs have alleged that the portion A, B, C and D in site plan ex. PW1/3 is in joint possession of tenants of second floor. On the other hand the defendant no. 1 & 2 has submitted a portion A, B, C & D is not part of the plaintiffs tenancy but used for all the tenants of second floor for entrance and exit.
17. The PW1 and PW 2 in their respective evidence have deposed that portion A,B, C, D shown in the site plan has been in joint possession of tenants on second floor and being used for access to tenants premises and provides easement light and ventilation.
Suit No. 470/10 Page no. 7 of 10 Both the PW1 & PW2 had confirmed the testimony in their cross examination to the fact that the portion A, B, C, D shown in the site plan Ex. PW1/3 is in joint possession of tenants on second floor . The defendants have not led any evidence to prove contrary. Hence, this issue is decided in favor of plaintiffs and against the defendants.
18.Issue no. 2 Whether plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP1 and 2. The defendants have admitted that plaintiff are in the possession of suit premises as tenant.
19.The Hon'ble Supreme Court of India in case titled as Rame Gowda VS. M Varadappa Naidu AIR 2004 SC 4609 has observed that : " So far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law: he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come Suit No. 470/10 Page no. 8 of 10 to the aid of a person in peaceful and settled possession by injecting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner ( of course subject to the law of limitation) if the latter has dispossessed the prior possessor by use of force."
20. In view of the above mentioned judgment the plaintiff cannot be dispossessed forcibly from the suit premises as they are in possession of suit premises as tenant. If the defendant want to gain the possession of suit premises they have to follow the due process of law and cannot take the law in their own hands by dispossessing the plaintiff from suit premises forcibly.
21. Further the plaintiffs have claimed injunction to restrain the defendants from creating hindrances and obstruction or to carry out any construction in portion A, B, C, D in the site plan.
22. As a defendant no. 1 & 2 have admitted that portion A, B,C,D shown in the site plan Ex. PW1/3 is in common use of all the tenants of second floor for the purpose of entrance and exist to their tenant premises. Therefore, defendants cannot create hindrances and obstruction in the portion A, B, C, D shown in the site plan.
23. The PW1 and PW2 in their evidence stated that the defendant no. 1 and 3 stacked building material in portion A, B, C, D to raise Suit No. 470/10 Page no. 9 of 10 illegal construction in the terrace of second floor and to create hindrance and obstruction in the said portion A, B , C, D. No person can raise any construction in any property without prior sanction of competent authority. Therefore the defendant restrained raising any unauthorized construction on terrace of second floor without obtaining prior sanction of competent authority. Hence this issue is decided accordingly.
24. Relief The plaintiff successfully discharge the onus to prove his case. Therefore, the defendants are restrained from dispossessing the plaintiffs from their respective tenants premises which is part of 64, Regal Buildings, Delhi and more specifically shown in red and green color in the site plan without due process of law. The defendant are further restrained from creating hindrances and obstructions by raising unauthorized construction in the portion shown as A, B, C & D in the site plan.
Decree sheet be prepared according.
File be consigned to record room.
Announced & signed in the (Gagandeep Jindal)
open court on 18.01.2012 Civil Judge/Central05
Delhi
Suit No. 470/10 Page no. 10 of 10