Delhi District Court
Sh. Dal Chand vs Sh. Kuldeep Singh on 23 August, 2012
Suit No. 1179/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 1179/2006
1. Sh. Dal Chand
2. Sh. Jagdish kumar
Both sons of Late Sh. Roop Ram
R/o House No. 3202, Gali No. 31, Beadon Pura,
karol bagh, New Delhi5.
.......Plaintiffs
Versus
1. Sh. Kuldeep Singh
S/o Sh. Karnail Singh
R/o House No. 753, Military Road,
Anand Parvat, Karol Bagh,
New Delhi110005
2. Sh. NareshKumar
S/o Sh. Jugti Ram
R/o House No. 3051,
Hardhyan Singh Road,
Karol Bagh, New Delhi110005.
...........Defendants
Date of institution : 13.09.1996
Arguments heard on : 24.07.2012
Date of decision : 23.08.2012
JUDGMENT:
1. This is a suit for mandatory and permanent injunction. The brief Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 1/13 Suit No. 1179/2006 facts as averred in the plaint are as follows:
2. The plaintiffs are lawful owners of property No. 3202, Gali No. 31, Beadon Pura, Karol Bagh, New Delhi5, which they have inherited and wherein they are residing with other family members, since last several years. Originally the deceased grandfather of the plaintiffs namely Sh. Luna Ram S/o Sh. Binja Ram was the lessee under the Delhi Improvement Trust and thereafter under the DDA as per various deeds from the year 1919 which were renewed from time to time. Shri Luna Ram raised construction of ground floor in the year 1936 and of the Ist floor in the year 1958 after getting the site plan duly sanctioned from the competent authorities. Sh. Luna Ram expired in the year 1969 and thereafter the property in question was inherited by his only son Sh. Roop Ram, the father of the plaintiffs. Sh. Roop Ram has also expired on 31.03.1988. The property in question stands assessed in the house tax records in the name of the deceased father of the plaintiffs, namely Sh. Roop Ram. That the above property of the plaintiffs was a corner house having 3sides open. On its east side, a well for common use of the residents was there and it was duly shown in the sanctioned site plan of DDA for the year 1936. Later on the said common well was filled up and on this open plot, a Barat Ghar comprising of one big Hall and one room Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 2/13 Suit No. 1179/2006 and an open verandah and a small temple with a big pipal tree was constructed (hereinafter referred to a 'suit property') which had been in the use of all the residents of Beadonpura and was managed and controlled by the Adarsh Beadon Pura Residents Welfare Association. Thereafter, one Shri Bharat Kuradia s/o Sh. Mohan Lal got some fabricated forged documents and started asserting claim over the suit property. He inducted his own persons, namely Purushottam Lal and Mohan Lal in the suit property. Adarsh Beadon Pura Residents welfare Association filed a suit against these persons which was titled as "Adarsh Beadonpura Residents Welfare Association Vs Purushottam Lal, Mohan LaL" which is pending in the court of Shri Bijesh Sethi, Civil judge, Delhi. During the pendency of the that suit, Bharat Lal has fraudulently transferred the above suit property to the defendants illegally and unlawfully. Defendants 1 & 2, who are builders and carrying on their partnership under the name of M/s K.S Builders started demolishing the existing structure on the suit property and have stated raising altogether new construction over the suit property. When the plaintiffs resisted, the defendants openly threatened that they would raise a multistoreyed complex over the suit property, as they had purchased the suit property from Sh. Bharat Lal Karadia. The defendants had started Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 3/13 Suit No. 1179/2006 construction with full swing and till the filing of suit they had raised six pillars, after demolishing major part of Barat Ghar.
In the property of the plaintiffs, as per the sanctioned plan of their property, there are two doors and a window which opens towards the suit property in occupation of the defendants, which the defendants have falsely numbered as House No. 3202A, Gali No. 31, Beadon Pura, Karol Bagh, New Delhi5. This no. is stated to be fictitious as in Beadon Pura there is no property bearing nos. A or B with the actual nos. of the Houses. There are 3 big windows measuring abut 5'x4' on the first floor, which are also opening towards the suit property in occupation of the defendants. The plaintiffs have fitted two aircoolers in two of windows, measuring 2 ft x 2 ft. and the remaining portion of these windows is rd open and the 3 window is totally open. The plaintiffs are stated to have been enjoying light, air through the above openings on the first floor since the construction of the property of the plaintiffs. Defendants are threatening the plaintiffs to remove the coolers from the windows as defendants have to raise a wall adjoining to the plaintiffs' wall for completion of construction. The plaintiffs will not only suffer the loss of light and air by the proposed construction of defendants, but also their whole property will become uninhabitable Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 4/13 Suit No. 1179/2006 and its value will be materially affected. The defendants have no legal right to raise unauthorized construction on the suit property which was actually used as a Barat Ghar.
Therefore, plaintiff has prayed for a decree of Permanent injunction may kindly be passed in favour of plaintiffs and against the defendants, restraining the defendants, their agents, employees, workers, labourersdirectly or indirectly from raising any wall adjoining the wall of plaintiffs closing all their openings in their property towards the side of the suit property in occupation of the defendants. Further plaintiffs prays for a decree of mandatory injunction in favour of plaintiffs and against defendants directing them to remove 3 iron pillars raised on the suit property adjoining the property of the plaintiffs for the purpose of raising superstructure.
3. In the written statement filed by defendants, it is stated that the suit regarding the suit property No. 3202A Gali no. 31, Beadon Pura was already filed by the Adarsh Beadon Pura Residents Welfare Association in 1994 and the same was assigned to the court of Shri Brijesh Sethi, Civil Judge. Similarly, other suit was filed by the defendant No. 1/Kuldeep Singh against the plaintiff in the above referred suit which had been also assigned to the court of Sh. Brijesh Sethi. Further, in a civil writ the Hon'ble High court vide its order Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 5/13 Suit No. 1179/2006 dated 19.12.1995 while disposing of the civil Writ Petition No. 30/95 directed MCD to forward all the documents relating to the suit property to the DDA within six weeks time and thereafter the DDA was directed to complete the execution of Perpetual Lease Deed within a period of six weeks in favour of Shri Bharat Lal Kuredia within six weeks, who is the original lessee. In view of these two decisions, it is confirmed that the defendants have got a legal right in the suit property and the Plaintiff has suppressed these material facts from this Court except making a passing reference in para no. 9 of the plaint. They have opened two windows over the property of the defendants and they have also falsely claimed that their property is a corner property having three sides open whereas the property of the defendant of the defendants is a corner property and it opens in both the streets No. 31 and 32 of Beadon Pura. In the given circumstances, the wall of the defendants property will be common with the wall of the plaintiffs and as such the plaintiffs have got no legal right to open their windows over the property of the defendants and moreover, the privacy of the defendants is going to be adversely effected by the said windows in the property of the plaintiffs. There is no legal right either in the laws of easements or in the municipal laws to have a window opening over the property of the adjoining Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 6/13 Suit No. 1179/2006 house. As per the plaintiffs they have opened three windows of the size of 5 ft. x 4 ft. i.e 20 sq.ft on the first floor of his house opening towards the suit property which is violative not only the privacy of the defendants but is also contrary to the municipal laws and does not confer any legal right in the plaintiffs. The suit property is as old as 1905 when the said plot was allotted to late Shri Mohan Lal Kuredia, father of Shri Bharat Lal Kuredia. The suit property was purchased by the defendants through a Registered Sale Deed from Shri Bharat Lal Kuredia. There was no Barat Ghar or community Hall as claimed by the plaintiffs. In fact, the plaintiffs wanted to demolish the common wall on the night of 01.09.1996 on which a DD No. 42A was lodged on 01.09.1996 with Police Station Karol Bagh at about 11:50 PM by the defendant no. 1. The matter was immediately investigated and the plaintiffs took the plea that they are fixing a almirah in the said wall and not demolishing the common wall.
Further the plot no. 3202A, Gali No. 31, Beadon Pura is not a fictitious one, because the Hon'ble High Court has ordered the DDA to execute a perpetual lease deed in favour of Sh. Bharat Lal Kuredia. It is wrong and denied that the plaintiffs have been enjoying either light or air through the above opening into on the ground floor or on the first floor since the construction of the property Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 7/13 Suit No. 1179/2006 of the plaintiffs. It is a two side open plot and the plaintiffs have windows on both sides but have got no legal right whatsoever to open the windows and encroach upon the property of the defendants.
4. The plaintiff filed replication to the written statement of defendant no. 1 wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement.
5. Vide order dated 31.10.2005 following issues had been framed by my Ld. Predecessor :
1) Whether the defendants are building/constructing their property in accordance with the sanction plan obtained from the competent authority. If so, its effect? OPD
2) Whether the plaintiffs has no right to interfere in construction raised by defendants? OPD
3) Whether the plaintiff is entitled for relief of permanent injunction, as prayed for? OPP
4) Whether the plaintiff is entitled for relief of mandatory injunction, as prayed for? OPP
5) Relief.
Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 8/13 Suit No. 1179/2006
6. In its support, plaintiff examined himself as the only witness. PW1 entered the witness box on 24.10.2009 and tendered his affidavit Ex PW1/1 in evidence, which states the same facts as were stated by the plaintiff in its written statement. He relied on Ex PW1/A and Ex PW1/B which are certified copies of sanctioned site plans of the plaintiff's property. He further relied on Ex PW1/C is the death certificates of Sh. Luna Ram PW1 also relied on Ex PW1/E and Ex PW1/F which are photographs of barat ghar and temple. He also relied on Ex PW1/G which the certified copy of status report of MCD.
Copy of demolition order dated 04.03.2003 passed by DC, Karol Bagh Zone is Mark A. He also relied on Ex PW1/H which is the copy of order of DC, Karol Bagh Zone dated 26.12.2001. Ex PW1/I is the photocopy of letter dated 20.03.2007 recieved under RTI. Ex PW1/J is the copy of order dated 23.11.2004 passed by Sh. Raj Kumar, Ld. Civil Judge (as he was then).
In his cross examination, he admitted that paras 14 to 18 of his affidavit were not part of his pleadings.
7. Defendant also examined himself as the only witness. DW1 entered the witness box on 11.10.2010 and tendered his affidavit Ex DW1/X in evidence, which states the same facts as were stated by the Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 9/13 Suit No. 1179/2006 defendant in its written statement.
In his cross examination, he admitted that earlier he had filed a civil suit against the plaintiff pertaining to the window, etc but the same was withdrawn after he gave Rs. 30,000 to the plaintiff. He denied that the earlier suit was dismissed vide detailed order Ex PW1/J. In his further cross examination he admitted the document PW1/J. He denied the copy of jamabandi Mark X. He admitted that the suit for declaration qua the suit property filed by him had been dismissed by Ld ADJ Dr. Kamini Lau. He denied the document PW1/I.
8. I have heard both the parties and have perused the record carefully.
9. Issue wise findings are as under:
Issue no. 1 : Whether the defendants are building/constructing their property in accordance with the sanction plan obtained from the competent authority. If so, its effect? OPD The onus of proving this issue was on the defendant. No evidence has been led to show that the same. Accordingly this issue is decided in the favour of plaintiff and against the defendant.
10. Issue no. 2 : Whether the plaintiffs has no right to interfere in Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 10/13 Suit No. 1179/2006 construction raised by defendants? OPD The onus of proving this issue was on the plaintiff. No evidence has been led to show that the same. Accordingly this issue is decided in the favour of plaintiff and against the defendant.
11. Issue No. 3 : Whether the plaintiff is entitled for relief of permanent injunction, as prayed for? OPP Issue No. 4 : Whether the plaintiff is entitled for relief of mandatory injunction, as prayed for? OPP Both these issues are connected and are, therefore, being decided together. The onus of proving this issue was on the plaintiff. Plaintiff has relied on Ex PW1/A and Ex PW1/B to show that as per sanctioned plan, two doors on the first floor and three windows on the first floor of the house of the plaintiff face the plot of the defendants. However, plaintiffs have not examined the concerned architect who prepared these plans nor any other official from MCD to prove these two plans. Ex PW1/A and Ex PW1/B have, therefore, remained unproved. Though the defendants have admitted that there are three windows on the first floor of the house of the plaintiff but they have denied that the same are as per the Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 11/13 Suit No. 1179/2006 sanctioned plan. Thus it is still unproved that the construction on the house of the plaintiff is as per the plan sanctioned by the municipal authorities.
Plaintiffs have also relied on Ex PW1/E and Ex PW1/F to show that there was a barat ghar at the suit property. However, the negatives of these photographs have not been placed on record and as such these photographs being secondary evidence remained unproved.
Plaintiffs have also relied on Ex PW1/G, Ex PW1/H and Ex PW1/I to say that the defendant was a trespasser over government land. However the documents Ex PW1/G, Ex PW1/H and Ex PW1/I are beyond pleadings and therefore, cannot be looked into.
Plaintiffs have relied on Ex PW1/J which is the copy of judgment passed by Sh. Raj Kumar, Ld. Civil Judge to say that the construction raised by defendants over the suit property was illegal and unauthorized.
Plaintiff has, during the course of final arguments filed the certified copy of judgment dated 30.04.2009 passed by Dr. Kamini Lau, Ld. ADJ. According to this judgment defendants are encroachers over suit property. On the other hand, defendants have Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 12/13 Suit No. 1179/2006 filed copies of the order of Hon'ble Delhi High Court to say that this judgment passed by Ld. ADJ has been stayed till the disposal of the first appeal filed by the defendants herein.
However, the issues before this Court will have be decided in the light of the legality or otherwise of the constructions raised by the plaintiffs over their property. Plaintiff cannot rely on the imperfect title of the defendants. They will first have to prove that their house was built as per the sanctioned plan and only thereafter can the title of the defendants be considered by the Court.
Plaintiffs having failed to show that the same, this issue is decided against the plaintiffs and in the favour of defendants.
12. Issue No. 5 : Relief In view of the aforesaid discussion, suit of the plaintiff is dismissed. In view of the facts of the case, parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the Open court today on 23.08.2012 at 04:00 PM (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/23.08.2012 Dal Chand & Ors. Vs. Kuldeep Singh & Ors. 13/13