Delhi District Court
Ganga Ram (Since Deceased) vs Sh. Ram Chander on 1 December, 2012
IN THE COURT OF SH. DINESH BHATT, PO,MACT/ ADJ/(N)/ TIS HAZARI
COURTS, DELHI
RCA No.:47/11
Unique ID no.:02401C00498562011
1. Ganga Ram (since deceased)
through legal heirs:
a. Somwati
W/o Late Ganga Ram
b. Gyaneshwar
c. Phool Kanwar
Both sons of Late Ganga Ram
R/o RZ802, Village Palam,
New Delhi
d. Vijay Kumar
e. Pawan Kumar
both S/o Late Ganga Ram
R/o 313/10, Adarsh Nagar,
Behind Meenakshi Garden Banquet Hall,
Sonepat, Haryana
f. Rajwati
W/o Sh. Arvind Kumar
D/o Late Ganga Ram
R/o 129, Police Lines, Gurgaon,
Haryana
RCA no.:47/11 Page 1/7
g. Bijendari
W/o Shrikant Sharma
D/o Late Ganga Ram
R/o 1009, Main Gali Azard Nagar,
Raj Garh Road, Hissar,
Haryana
h. Sunita
W/o Sh. Bijender Kumar
D/o Late Ganga Ram
R/o Village & Post Lova Khurd,
Bahadur Garh, District Jhajjar,
Haryana
i. Poonam
W/o Sh. Narinder Kumar
D/o Late Ganga Ram
R/o Village & Post Badshah Pur,
Mohalla Tyagi Wada, Gurgaon,
Haryana ..........Appellants
Versus
1. Sh. Ram Chander
S/o Sh. Kanwal Singh
R/o Village Palam, New Delhi
2. Sh. Banwari Lal
3. Sh. Pirthi
4. Sh. Puran
2,3,4 S/o of Sh. Ram Chander
RCA no.:47/11 Page 2/7
5. Sh. Kuldip
S/o Sat Dev
All R/o Village Palam, New Delhi ..........Respondents
Date of Institution : 29/10/2011
Date on which order was reserved : 03/11/2012
Date of Decision : 01/12/2012
O R D E R:
1. This is an appeal against the judgment and decree dated 22/09/2011 whereby suit of the plaintiff for mandatory and permanent injunction was decreed against the defendants/appellants.
2. Appellants have preferred the appeal on the ground that the Ld. Trial Court failed to appreciate the demarcation report filed by respondent no. 1 as per which in the site plan no Gali was visible and the same was clearly showing that the land of appellants was encroached by respondent no. 1/plaintiff. Ld. Trial Court also did not take into note that plaintiff/respondent no. 1 had built his house on an agricultural land and appellants had also built his house on his portion in 1990. The suit was thus, barred by limitation. Plaintiff/ respondent had failed to examine Patwari and therefore, withheld best evidence. Consequently, adverse inference was required to be drawn against respondent no. 1/ plaintiff. The land in question is an agricultural land therefore, Court had no jurisdiction U/s 185 Delhi Land Reform Act.
3. I have heard Ld. Counsels for the parties and also perused the Trial Court RCA no.:47/11 Page 3/7 Record.
4. Respondent no. 1/plaintiff's case was that he was owner in possession of the property built on Khasra no. 33/5/2 of Village Palam. The land in question was divided between the cosharers in 1983 and two common passages of 5 feet and 8 feet was left on the Southern and Northern side of the plot respectively for use of the occupants. Just opposite plaintiff's house, defendants/appellants had their house and the Gali of 5feet was open upto point C & D of the site plan. Opposite the property of the plaintiff beyond the Gali, wall of the house of defendant at point XY was existing and at point G gate of the plaintiff's house was opening in the Gali. Plaintiff was using the said Gali from both the ends and the same was private Gali of the plaintiff and its coowners but defendant without any title or interest had encroached or blocked the same by illegally constructing walls at point AB & CD shown in the site plan. The said walls blocking the Gali were raised 15 days ago and despite repeated request defendant/appellant did not remove the same. Plaintiff has therefore, prayed that mandatory injunction for removing walls AB & CD and restoring the 5feet Gali in its original position and permanent injunction for restraining the defendants from blocking the Gali was prayed.
5. Appellant/defendant no. 1's case was that there was no Gali as alleged by the plaintiff and the appellant/defendant no. 1 was in possession of the suit property, he had put up a Tin Shed/Pucca room on the said portion and was being used for his animals. The said suit property was part and parcel of the appellant and respondent no. 2 to 5's property. Thus, plaintiff/respondent no. 1 had no right of ingress or eagress over the said private Gali. The said Tin Shed had been built by appellant 10 years ago therefore, the suit was also barred by limitation. Plaintiff/respondent no. 1 was neither owner nor in possession of the said portion of the suit property (Gali) at any point of time.
RCA no.:47/11 Page 4/7
6. Defendant/respondent no. 2 had reiterated the stand of appellant/defendant no.
1.
7. Plaintiff had examined 04 witnesses but defendants did not examine any witness on their behalf.
8. Ld. Trial Court framed 03 issues and held that in absence of any evidence on behalf of defendants, defendants' plea of limitation and nonmaintainability of suit was not substantiated. Further plaintiff had examined witnesses who had proved that as per the site plan Ex. PW1/2 there were two common passages one towards Northern and other towards Southern side of the plot shown in Red colour. The 5 feet wide passage was towards Southern side was blocked at point AB & CD in front of house of appellant/defendant no.
1. If the said walls at point A,B & CD were removed, the 5 feet Gali becomes an open Gali and gets linked with the main road. Gate at point G of defendant was not disputed and the same itself showed the existence of 5 feet Gali.
9. Ld. Counsel for appellant had argued that no title documents of the suit property in faovur of respondent no. 1/plaintiff had been proved and that as per the demarcation report of Tehsildar dated 13/09/2004 plaintiff had encroached on the land of the defendant no. 1/appellant. This report also show that plaintiff was in occupation of the land beyond his ownership and therefore, encroachment was proved.
10. The demarcation report of Tehsildar Palam was filed on record but the same was neither tendered nor proved by the defendant nor relied by the plaintiff. PW4 Local Commissioner had filed his report and produced on record rough plan Annexure Y and site plan prepared by architect Annexure X alongwith photographs of the suit property. Annexure Y was also signed by defendant Ganga Ram. As per Annexure X & Y, 5 feet Gali RCA no.:47/11 Page 5/7 (suit property) was existing at the site and was shown to be closed at point CL & MK with gate at point IJ. This was corresponding to the points AB, CD of the suit plan Ex. PW1/2. These documents prove existence of Gali as claimed by the plaintiff. Defendant had not led any contrary evidence therefore, the version of the plaintiff was unrebutted to this extent. In regard to the ownership of the suit property, plaintiff had claimed coownership on the suit property and his version to this effect was also unrebutted. In this regard defendant had claimed ownership of the suit property and had stated that he had built a Shed on the said portion 10 years ago. It was thus, for him to prove this stand but had failed to lead any evidence on his behalf. Even otherwise for relief of injunction, possession and use of the Gali could be sufficient for grant of relief.
11 In regard to objection of the suit not being maintainable U/s 185 of Delhi Land Reform Act, the suit in question was only a suit for injunction and not a suit for declaration of Bhumidari rights, thus, the suit for injunction was not barred. Appellant has argued that plaintiff had withheld best evidence and had not examined Patwari and also not proved that demarcation report which shows that there was encroachment by the plaintiff/respondent on the land of defendant. In this respect it was for the defendant to prove his stand and the demarcation report in question was also to be proved in accordance with law. Therefore, the same rightly could not have been taken into consideration.
12. Appellants other ground of appeal is in regard to limitation. It is stated that appellant had constructed a Cow Shed on the suit property 10 years ago and the suit was filed beyond limitation. Appellant had however, not led any evidence. Accordingly, the Ld. Trial Court had rightly held that the issue was not proved.
13. There is therefore, no infirmity in the impugned judgment and no merits in the RCA no.:47/11 Page 6/7 appeal. The same is dismissed. Trial Court Record alongwith copy of order be sent back. Appeal file be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 01/12/2012 PO,MACT/ADJ/Delhi
01/12/2012
RCA no.:47/11 Page 7/7