Delhi District Court
Sh. Bhan Singh vs Sh. Yudh Vir Malik on 6 June, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Suit No. : 1349/16
In the matter of:
Sh. Bhan Singh,
S/o Sh. Ram Swaroop,
R/o H.No. 61, Village Mashood Pur,
Vasant Kunj, New Delhi70. ....Plaintiff
Versus
1. Sh. Yudh Vir Malik,
2. Sh. Udai Vir Malik (deceased) through legal heirs,
(a) Mrs. Rajbala (wife)
(b) Ms. Kamini Malik (daughter)
(c) Ms. Deepshikha Malik (daughter)
(d) Mr. Kartik Malik (son)
3. Sh. Ram Vir Malik,
4. Sh. Chand Vir Malik,
All sons of Late Sh. Lakhi Ram,
R/o RZB1, Village Mashood Pur,
Vasant Kunj, New Delhi70. .....Defendants
Date of Institution : 12.12.2007
Date of order when reserved : 31.05.2019
Date of order when announced : 06.06.2019
Suit No. 1349/16 1/18
JUDGMENT
1. Vide this judgment, the undersigned shall decide the present suit filed by the plaintiff and against the defendants praying that the defendants be directed by way of decree of mandatory injunction to close all the 17 ventilators opened in the wall of the adjoining property/ land belonging to the plaintiff's family and the defendants be restrained permanently from opening any such vent in future in the wall of the building belonging to the defendants towards the property/ land belonging to the plaintiff's family. The plaintiff also filed an application Under Order 39 Rules 1 & 2 CPC.
2. It is to be noted that earlier vide order dated 30.10.2014 the present plaint of the plaintiff was rejected Under Order 7 Rule 11 (a) CPC being without any cause of action against which the appeal was filed wherein the said order was setaside vide order dated 31.08.2015 and the present suit was remanded back. It is also to be noted that the application Under Order 39 Rules 1 & 2 CPC moved on behalf of the plaintiff was dismissed vide order dated 28.04.2008 which order was upheld by Ld. Appellate Court vide order dated 04.09.2010. During pendency of the present suit the defendant no.2 has expired and his legal heirs were brought on record.
3. The case of the plaintiff as per plaint is that the parties are Suit No. 1349/16 2/18 successors of a common ancestor and have inherited land comprising in Khasra No. 206/2 (512) and Khasra No. 358/207 (14). This land was in joint ownership of the father of the respective parties and was divided as per mutual understanding. It is contended that the land shown in red colour came to the share of the plaintiff and same is a connecting link between the two portions which also fell to the share of the plaintiff. It is stated that in lieu of this connecting link which measures 60 yds., the defendants were given 300 sq. yds. in Khasra No. 358/700. It is stated that in 2000, the defendants constructed a five storyed building in the portion of their land adjacent to his land including the connecting link. It is stated on behalf of the plaintiff that on 04.11.2007, the defendants started opening vents towards portion of his land by removing the bricks from the wall. It is stated that when he objected, the defendants abused and threatened him. It is stated that a complaint was filed before SHO, P.S. Vasant Kunj, but no action has been taken by the police. It is stated that on 13.11.2007, the defendants continued to construct the ventilators towards the land belonging to his family. It is alleged that the defendants have succeeded in opening sixteen ventilators towards the portion shown in red colour in the site plan and one big opening towards the land of his family falling in Khasra No. 358/207.
4. Summons of the suit and notices of the application Under Order 39 Rules 1 & 2 CPC were issued to the defendants. The Suit No. 1349/16 3/18 defendants appeared and contested the suit as well as injunction application. The defendants have filed written statement as well as reply to the application Under Order 39 Rules 1 & 2 CPC. It is to be noted that the defendants no.3 and 4 were proceeded exparte vide order dated 08.12.2016, however later on an application Under Order 9 Rule 7 CPC moved on behalf of the defendant no.3 for setting aside the order dated 08.12.2016 which was allowed vide order dated 02.02.2017.
5. In the written statement to the plaint, it is stated by the defendants that the suit is without any cause of action and the existing construction was raised in the year 19992000. It is stated that there is no opening in the portion of the plaintiff and the passage shown in green colour in the site plan filed by them, belongs to them in terms of Panchayati Faisla arrived between the parties on 18.02.1992. It is denied that in lieu of passage shown in red colour in the site plan filed with the plaint, they were given 300 sq. yds. of land in Khasra No. 358/207 as claimed in the plaint. It is stated that they took the stand that the said land is owned by them. It is denied that any ventilator, or big opening has been raised by them in their building which opens towards the land of the plaintiff in 2007.
6. Replication to the written statement of the defendants was filed by the plaintiff. The plaintiff has denied the allegations of the Suit No. 1349/16 4/18 defendants and has reiterated the same facts as averred in the plaint.
7. Vide order dated 03.05.2011, on the basis of pleadings of the parties the following issues were framed :
i) Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP.
ii) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
iii) Relief.
8. In order to substantiate his case, the plaintiff examined himself as PW1.
9. In rebuttal, the defendants examined the defendant no.1 as DW1.
10. PW1/ plaintiff Sh. Bhan Singh deposed almost on the same lines as averred in the plaint. It is further stated by him that the opening of ventilators towards the property of the plaintiff is illegal and in violation of right to privacy of the plaintiff and his family members as the women folk of the plaintiff's family used to work in the property and their privacy is offended by the ventilators and openings in the wall made by the defendants. It is stated that the Suit No. 1349/16 5/18 defendants have constructed the house in the year, 2000 when they were tried to construct projections towards the land of the plaintiff, however on making police complaint the defendants could not succeed in their design. Thereafter, in the year, 2007 i.e. on 04.11.2007 the defendants started opening vents towards the portion of the land of the plaintiff's family qua which the plaintiff lodged a police complaint, however police did not do anything on the excuse that it is a Civil matter. It is stated that the plaintiff has developed some heart ailment during that period and went for medical care and due to the absence of the plaintiff, the defendants succeeded in opening 16 ventilators and one big opening towards the portion of the plaintiff. This witness proved on record computerized site plan which is Ex. PW1/A; copy of complaint to SHO, P.S. Vasant Kunj dated 03.02.2000 is Ex. PW 1/B; copy of complaint dated 05.11.2007 to SHO, P.S. Vasant Kunj is Ex. PW1/C; four photographs showing the opening of vents/ ventilators are Ex. PW1/D1 to Ex. PW1/D4 and computerized pictorial design of ventilators are Ex. PW1/E1 to Ex. PW1/E2. In his crossexamination, it is stated by this witness that in Khasra No. 206/2 and 358/207, there is 6,800 sq. yds. of land approximately. It is stated that the legal heirs of Sh. Chand and Sh. Ram Swarup are the owners of these two Khasras and they are in possession of the same. It is stated that they are in joint ownership. It is stated by him that a partition has taken place amongst the joint owners in the year, 1981. It Suit No. 1349/16 6/18 is stated that the legal heirs of Sh. Ram Swarup were given portion at the end of Khasra No. 206 and another portion of Khasra No. 358/207. It is stated that both portions were at different places. It is stated that there was no entry in Khasra No. 206 and that is why they requested the legal heirs of Sh. Chand i.e. Sh. Lakhi Ram and Sh. Mangat Ram that a passage should be given from their portion. It is stated that they did not give any passage despite request due to that father of this witness filed a suit against Sh. Lakhi Ram and Sh. Mangat Ram for the passage. It is stated that later on, they had taken 300 sq. yds. of land from Khasra No. 358/207 and in lieu of that 300 sq. yds. of land, they gave passage of 60 sq. yds. to the father of this witness. It is stated that the said 60 sq. yds. was the link between the first portion of Khasra No. 206 and second portion of Khasra No. 358. It is stated that thereafter the case was withdrawn by his father. It is stated by him that in Khasra No. 206, 2,800 sq. yds. of land and in Khasra No. 358/207, 300 sq. yds. plus passage of 60 sq. yds. was given to Sh. Ram Swarup. It is stated that at present, legal heirs of Sh. Ram Swarup are in possession of approximately 3,100 sq. yds. of land including both Khasra Numbers i.e. Khasra No. 206 and Khasra No. 358/207. It is denied by him that no oral settlement had taken place. It is stated by him that no written document executed in respect of rasta of 60 sq. yds. The site plan, Ex. PW1/A was shown to this witness and after seeing the same, this witness has marked the rasta from the Point 'X' to 'Y' in the site plan. It is stated that the Point 'X' to Suit No. 1349/16 7/18 'Y' used as rasta since 1981. The portion MarkA on the west of the rasta belongs to Sh. Jai Lal and his sons. It is stated that Sh. Jai Lal is not related to him and his family. It is denied by this witness that rasta starts from Point 'A' to 'B', though it is stated that it starts from Point 'A' to 'A1'. After seeing the photograph marked as MarkD2, this witness accepted that there is no property between rasta X1 to Y1 and property MarkA of Sh. Yudh Vir Malik (i.e. the defendant no.1). It is stated that building of the defendant no.1 is appearing in the photograph MarkD1, however it is stated that the rasta shown in 'L' shape by the defendant no.1 is incorrect. After seeing the photograph, MarkD3 this witness identified the building of the defendant no.1 in the same, though it is stated that rasta is not clear in the same. The site plan filed by the defendants is marked as MarkD4 (later on exhibited as Ex. DW1/2) shown to this witness and after seeing the same it is accepted by him that there is a samadhi at the end of 60 sq. yds. rasta. It is voluntarily stated that the said samadhi is in the portion of the defendants. It is stated that there is no document to show that the land measuring 300 sq. yds. was given to the defendants in lieu of 60 sq. yds. rasta. It is denied by him that as per Panchayati Faisala dated 18.02.1992, the rasta of 60 sq. yds. was given by the co owner of the village for use by all villagers as well as by him also. It is voluntarily stated that the Panchayat Faisla is false and bogus. It is stated that the village was urbanized in the year, 1982 and since then, Suit No. 1349/16 8/18 there is no Panchayat in the village. It is stated by him that rasta at Point Z to Z1 in site plan, Ex. PW1/A is opened in his property. A question was put to this witness that there is a wall at Point X1 in the photograph, MarkD2 which shows that the rasta is closed at Point X1 to which it is stated by him that rasta turns towards the left at Point X1 (apparently, he accepted that the rasta closes at Point X1 and took a turn from there towards X1). It is accepted that in the site plan, Mark D4 at Point X to X1, 60 sq. yds. passage ends and there is a wall. It is voluntarily stated that the partition wall is there, however rasta took a left turn from there. It is accepted by him that Points A, B, C and D in the site plan, MarkD4 show 60 sq. yds. passage. It is stated by him that there is construction done on the property of Sh. Jai Lal as shown in the site plan, MarkD4, though it is stated that Sh. Jai Lal has not opened any window in the passage. This witness could not tell the exact length and breadth of the property which he has given to the father of the defendants in lieu of passage admeasuring 60 sq. yds.
11. No other plaintiff's witness was examined and plaintiff's evidence was closed.
12. In rebuttal, DW1/ defendant no.1 Sh. Yudh Vir Malik has deposed almost on the same lines as averred in the written statement and filed on record copy of Panchayati Faisla dated 18.02.1992 between the parties which is marked as MarkA; site plan filed Suit No. 1349/16 9/18 alongwith the written statement is Ex. DW1/2 (earlier marked as MarkD4 in the crossexamination of PW1) and five photographs of vents/ ventilators are marked as MarkB (Colly) (running into three pages). In his crossexamination, it is accepted by him that entrance gate of his property is separate. It is accepted by him that the entrance gate of the property of the plaintiff is separate. It is accepted by him that he has constructed his property in the year, 19992000. It is accepted by him that there was ventilation in the property when he constructed the property in the year, 19992000. It is denied by him that he opened the ventilators in his property on 04.11.2007 and 05.11.2007. Four photographs shown to this witness (already exhibited as Ex. PW1/D1 to Ex. PW1/D4) and after seeing the same it is again reiterated by him that he opened the windows in the year, 2000 itself. It is denied by him that he has constructed the ventilators when the plaintiff has hospitalized due to heart ailment.
13. No other defendants' witness was examined and the defendants' evidence was closed.
14. The Court has heard both the parties and has perused the record.
15. The issue wise findings are as follows: Suit No. 1349/16 10/18 ISSUES NO. 1 AND 2: Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP.
Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
16. The onus to prove these issues were upon the plaintiff. In the present matter, the plaintiff has sought mandatory injunction calling upon the defendants to close all the 17 ventilators opened in the wall of the building towards the property of the plaintiff. Permanent injunction also sought to refrain the defendants from opening further ventilators.
17. There are certain admitted facts in the present matter that both the parties are having common ancestors. Their properties have been partitioned. Both the parties are enjoying their respective separate portions. The defendants have raised five storeyed building in the year, 19992000.
18. The grievance of the plaintiff is that in the year, 2007 more particularly in November, 2007 the defendants started opening Suit No. 1349/16 11/18 ventilators/ windows on the west side wall of their house which is opening towards 60 sq. yds. passage which is a private passage of the plaintiff. The defendants have also opened a big opening in the south wall of their house which is towards the plot of the plaintiff. It is contended that the defendants are illegally opening ventilators and big opening towards the plot of the plaintiff which amounts to infringe the privacy of female members of the plaintiff who used to work in the plot and used to use that passage.
19. Per contra, it is contended on behalf of the defendants that the portion adjoining their property is a passage. It is contended that plot of the defendants is not adjoining to the south side of the building of the plaintiff, however there is a street/ passage between plot of the plaintiff and building of the defendants. Further, passage of 60 sq. yds. towards west side of building of the defendants is not private passage of the plaintiff, rather this includes the passage towards south of the building of the defendants and it is being used by all the villagers, hence the said ventilators/ windows have been opened towards common passage and not opened towards the private passage of the plot of the plaintiff. It is contended that the said passage was given to them, or villagers by virtue of Panchayati Faisla dated 18.02.1992.
20. There are two different site plans filed by both the parties Suit No. 1349/16 12/18 on record. In the site plan of the plaintiff, his land is shown adjacent to the portion of the defendants. Per contra, in the site plan filed by the defendants, there is a passage between land of the plaintiff and building of the defendants. There is one more contention of the plaintiff in the present matter that father of the plaintiff has given a plot of 300 sq. yds. to the father of the defendants to get 60 sq. yds. passage for connecting his two different plots. Thus, there are two questions which are to be determined in the present matter i.e. (i) passage on the west side of the building of the defendants is common passage, or exclusive and private passage of the plaintiff and (ii) whether plots of the plaintiff and the defendants are adjoining and there is passage between the two.
21. The undersigned has perused the entire file, cross examination of the parties as well as site plans filed by them including the photographs. The plaintiff has shown in the site plan, Ex. PW1/A that the alleged personal passage of the plaintiff is going only from portion 'Y' to 'X', however in his crossexamination, it is admitted by him that at Point 'X' to 'X1' there is a wall. Only in his cross examination, it is explained by the plaintiff that from Point 'X1' where there is a wall from where the alleged personal passage takes a left turn towards the property of Sh. Jai Lal. It is to be noted that Sh. Jai Lal is not a family member of the plaintiff. It is also not explained as to how the private passage of the plaintiff merged into the passage in Suit No. 1349/16 13/18 the property of Sh. Jai Lal. It is not explained, if there is any agreement between Sh. Jai Lal and the plaintiff due to which Sh. Jai Lal allows the plaintiff to use passage in his property to access the distant property of the plaintiff. The nondisclosure of the fact that passage took a left turn to go into the private property of Sh. Jai Lal shows that the plaintiff has not disclosed the complete facts to the Court. Further, the fact that the alleged exclusive personal passage of the plaintiff merges into the private property of Sh. Jai Lal makes it probable that it is not a private passage, rather it is a common passage wherein property of all the villagers are utilized for commuting.
22. There is no document on record to show that any settlement has reached between predecessorininterest of the defendant and predecessorininterest of the plaintiff qua handing over of 60 sq. yds. by predecessorininterest of the defendants to predecessorininterest of the plaintiff.
23. Admittedly, the building of the defendants was constructed in the year, 2000, however the present case has been filed in December, 2007, though it is claimed that the 16 ventilators and one big opening was opened only in November, 2007, however in support of this contention not even a single photograph has been shown to show that any construction in the property of the defendants is going on in November, 2007. From the photographs filed on record, it is Suit No. 1349/16 14/18 apparent that a big opening in the south side of the wall was made only at the time of construction of the house and laying the lanter as the lanter of the house was so designed as to leave this big opening. The said big opening does not appears to be carved out after demolishing the existing lanter. It is to be noted that big opening is going from ground floor to third floor, thus it cannot be opened without severely damaging all the lanters which does not appear to be done from the photographs, thus it can be safely held that the big opening towards the south was made at the time of constructing the property i.e. in the year, 19992000. Apparently, the plaintiff is making false averment that this big opening has been made in the year, 2007 which is a blatant lie. It is settled principle that a person who seeks equity must do equity. The plaintiff seeking equitable relief of injunction has to come up before the Court with clean hands and has to state the truth, however in the present matter, the plaintiff is making false averment in the Court due to this reason he is not entitle to the equitable relief of injunction.
24. It is contended on the part of the plaintiff that 16 ventilators have been opened in the building towards west side in November, 2007. There is not even a single photograph filed by the plaintiff to show that any such demolition/ construction activity being carried out. Ld. Counsel for plaintiff has relied on a photograph, Ex. PW1/D3 alleging that a labour can be seen in the said photograph, however this Suit No. 1349/16 15/18 photograph is only showing a hole in the wall, however it is not clear which building it is. In the said photograph, from the said hole a person is looking outside. There is no instrument of mason in the hands of that person, thus it cannot be ascertained from the said photograph that any construction activity is being going on. Further, in his own evidence, the plaintiff has stated that the defendants have started constructing the ventilators to which he objected and made police compliant, however thereafter, the plaintiff has hospitalized and in his absence all 16 ventilators and one big opening were made. There must be a number of members in the family of the plaintiff who could have taken photographs of the alleged activity during the alleged period when the plaintiff was hospitalized, however no such photographs have been taken. The alleged 16 ventilators and one big opening could not have been made in a day despite that it is only after alleged opening all the 16 ventilators and one big opening that the plaintiff has filed the present case.
25. It is to be noted that there are six big openings also towards the west side wall of the house of the plaintiff. The same could have been made at the time of construction of the house only, as the lanter has been laid in a manner to leave these openings. Even these six openings have been counted by the plaintiff in 16 ventilators, however from the photographs it is clear that the same were made at the time of construction of the house of the defendants, thus the plaintiff is Suit No. 1349/16 16/18 making false averment before the Court on this aspect as well.
26. From the abovesaid discussions, it is apparent that the plaintiff has miserably failed to prove that the alleged opening and ventilators have been made in the year, 2007. Per contra, the defendants succeeding in showing that it is more probable that the same were made in the year, 19992000. The fact that for seven long years, the plaintiff has not objected to the opening and ventilators shows his acquiescence. The failed attempt on the part of the plaintiff to show that these opening and ventilators were opened in the year, 2007 makes him unworthy for the equitable relief of permanent and mandatory injunction.
27. Similarly, it can be safely held that the plaintiff has failed to prove that the 60 sq. yds. on the west side of the building of the defendants is a private passage. Per contra, the defendants have probablized that it is a common passage used by all the villagers. Similarly, except his oral testimony, the plaintiff has nothing to say that there is any passage between the building of the plaintiff and the building of the defendants i.e. towards south side wall of the building of the defendants. Even the defendants could not prove that there is a passage between their plot and plot of the plaintiff, except from his own oral testimony as the said Panchayati Faisla has not been duly proved as per law. In these circumstances, it is the plaintiff who Suit No. 1349/16 17/18 would loss as it was primary responsibility of the plaintiff to prove his case. Further, it is also held that the opening in the south wall of the building of the defendants was made at the time of construction of the house i.e. in the year, 19992000 and not in November, 2007 as alleged by the plaintiff.
28. Thus, in view of the abovestated discussions, both the issues no.1 and 2 are decided in favour of the defendants and against the plaintiff.
ISSUE NO. 3Relief.
29. In view of the findings recorded on the abovementioned issues, no relief can be granted to the plaintiff. The suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room. Digitally signed by
GAJENDER GAJENDER SINGH
SINGH NAGAR
Date: 2019.06.06
NAGAR 15:37:01 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 06.06.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/06.06.2019
(This judgment contains 18 pages in total)
Suit No. 1349/16 18/18
CS1349/16
06.06.2019
Present : None.
Vide separate judgment of even date, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/06.06.2019 Suit No. 1349/16 19/18