Delhi District Court
Sh. Ram Pat (Deceased vs Sh. Virender S/O Late Sh. Devi Ram on 27 April, 2013
IN THE COURT OF MS. RUCHI AGGARWAL ASRANI,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Suit No. 171/04/08
Sh. Ram Pat (deceased plaintiff) through his LRs namely:-
1 Smt. Saran Devi W/o Late Sh. Ram Pat
2 Sh. Layak Ram, S/o Late Sh. Ram Pat
3 Sh. Hans Raj, S/o Late Sh. Ram Pat
4 Sh. Satbir, S/o Late Sh. Ram Pat
5 Sh. Anant Ram, S/o Late Sh. Ram Pat
All R/o 1183-84, Paposin Narela, Delhi.
6 Smt. Giano Devi W/o Sh. Balbir,
R/o Village Rajlu Garhi, District Sonepat, Haryana,
7 Smt. Shanti Devi W/o Sh. Jasbir,
R/o Village Charsvi, Sonepat, Haryana,
8 Smt. Sudesh W/o Sh. Ram Chander,
R/o Khakhoda, Sonepat, Haryana. ....Plaintiffs
VS.
1 Sh. Virender S/o Late Sh. Devi Ram,
R/o House No. 1182, Paposian, Narela, Delhi.
2 S.H.O., P. S. Narela, Delhi. ....Defendants
Date of institution:09.11.2004
Date of reserving of judgment:03.04.2013
Date of pronouncement of judgment:27.04.2013
Decision: Decreed
Suit No. 171/04/08 Page 1 of 12
JUDGMENT
The plaintiff had filed the present suit against the defendants for permanent and mandatory injunction.
Plaintiffs' version:-
2 It is stated in the plaint that the original plaintiff was the owner of property bearing house no. 1183-84, Mohalla Paposian, Narela, Delhi-40 and the said property is an ancestral property. It is further stated that defendant no. 1 is residing in an adjacent house bearing no. 1182, Mohalla Paposian, Narela, Delhi-40.
3 It is further submitted that the property bearing no.
1182 actually belongs to one Sh. Man Singh who is the cousin brother of the plaintiff and during his lifetime, a platform constructed just outside the gate of the plaintiff and defendant was being used commonly by the elders of the plaintiff and the defendant since long as the said space was covered with three sides.
4 It is the case of the plaintiff that after the expiry of the father of defendant no. 1, defendant no. 1 became lawful occupier/owner of the said property and his intention became Suit No. 171/04/08 Page 2 of 12 malafide as he intended to cover the platform which was for common use and illegally raised construction on 05.09.2004 to which, the plaintiff and his son raised objections and the defendant extended threats and a complaint was lodged with P.S. Narela, Delhi after making a call at number 100. It is stated by the plaintiff that the local police i.e. defendant no. 2 in collusion with defendant no. 1 made a kalandra under Section 107/150 Cr.PC on 05.09.2004 and son of the plaintiff and defendant no. 1 were arrested and produced before Ld. ACP, Jahangir Puri, Delhi, who were thereafter, released on bail.
5 It is also the case of the plaintiff that in spite of the said case, the defendant was raising a Chhajja of 3' in the Gali which is only 4' wide and was also covering the entrance gate of the plaintiff.
6 It is the grievance of the plaintiff that besides this, the defendant no. 1 in league with defendant no. 2 opened two windows and one gate on the wall which was constructed by covering the platform for common use which is illegal, unwarranted and against the law.
7 It is further submitted by the plaintiff that he, alongwith 2-3 respectable persons, visited defendant no. 2 but they refused to lodge the complaint on the pretext that the Suit No. 171/04/08 Page 3 of 12 matter is of a civil nature.
8 It is the case of the plaintiff that defendant no. 1 has no right, title or interest to cover the common space or raise unauthorised Chhajja and hence, the present suit has been filed.
Version of defendant no. 1:-
9 The defendant no. 1 has contended the suit of the plaintiff on the following grounds:-
i. That the plaintiff has no cause of action against defendant no. 1 and hence, the present suit is liable to be dismissed under Order 7 Rule 11 CPC.
ii. That the plaintiff has not approached this court with clean hands and has suppressed material facts and therefore, the present suit is liable to be dismissed.
iii. That the plaintiff has no locus standi to file the present suit and hence, the suit is liable to be dismissed.
iv. That the present suit is not maintainable being barred under Section 41 (h) of the Specific Relief Act and therefore, the Suit No. 171/04/08 Page 4 of 12 same should be outrightly dismissed.
v. That the suit is bad for misjoinder and non-joinder of parties.
10 On merits, defendant no.1 has denied all the allegations of the plaintiff and has stated that he has only carried out repairing work in his own portion on the roof with which, the plaintiff has no concern and with malafide intention and to extort money from defendant no. 1, the plaintiff has unnecessarily filed the present suit and lodged the complaint with the police.
11 It is the case of defendant no. 1 that there is no unauthorised or illegal construction and the plaintiff has only concocted a false story and therefore, the present suit is liable to be dismissed with special costs.
12 Replication to the written statement of defendant no.1 was also filed on behalf of the plaintiff, denying the contents of the written statement and reiterating and reaffirming the contents of the plaint.
13 From the pleadings of the parties, vide order dated 17.03.2005, Ld. Predecessor of this court framed the following Suit No. 171/04/08 Page 5 of 12 issues:-
1. Whether plaintiff is entitled for the permanent injunction, as sought? OPP.
2. Whether plaintiff is entitled for the mandatory injunction, as sought? OPP.
3. Whether there is any cause of action in favour of plaintiff and against the defendant? OPD.
4. Whether the plaintiff has no locus standi to file the present suit? OPD.
5. Whether the suit is bad for non-joinder of necessary parties? OPP.
6. Whether suit is barred by Section 41 (h) of Specific Relief Act? OPD.
7. Relief.
14 In order to prove his case, the original plaintiff examined himself as PW-1 and Smt. Savitri Devi as PW-2.
Ample opportunities were given to the defendants to cross- examine the plaintiff's witnesses, however, the defendants did not do so and therefore, their right to cross-examine the plaintiff's witnesses was closed on 16.02.2006. On the other hand, defendant no. 1 examined himself as DW-1.
15 Final arguments were addressed by the Ld. Counsels for both the parties. I have carefully perused the Suit No. 171/04/08 Page 6 of 12 record and given my considered thoughts to the arguments addressed by Ld. Counsels for the parties and my findings on various issues are as under:-
ISSUE NOs. 1 & 2:-
Whether plaintiff is entitled for the permanent injunction, as sought? OPP.
Whether plaintiff is entitled for the mandatory injunction, as sought? OPP.
16 Onus to prove these issues was placed upon the plaintiff. In order to prove these issues, PW-1 reiterated the facts mentioned in his plaint and deposed that defendant no.1 was going to raise a Chhajja of 3' in the Gali and was also covering the entrance gate of the plaintiff.
17 The plaintiff also examined Smt. Savitri Devi as PW-2 who deposed that she has known both the parties since the time of her marriage and therefore, she is fully conversant with the facts of the case. She also deposed that the disputed portion as shown in red colour in the site plan was common space and was being used by both the parties. She further deposed that defendant no. 1 in the month of November, 2004, illegally and arbitrarily raised illegal construction of wall and fixed doors towards Gali and covered the common portion Suit No. 171/04/08 Page 7 of 12 forcibly and also raised/constructed Chhajja about 3' wide in the Gali over the said new raised wall and thereby,illegally occupied the aforesaid common portion shown in red in the site plan.
18 On the other hand, DW-1 reiterated the facts mentioned in his written statement. However, in his cross- examination, he deposed that he does not know what is written in his affidavit. He also deposed that he does not know English language and that his counsel never told him what is written in the affidavit and nor the contents of the said affidavit were told to him.
19 In view of the deposition of defendant no. 1 in his cross-examination, it is concluded that his affidavit cannot be read in evidence since he was not even aware of the contents of the affidavit when it was filed.
20 DW-1 has although deposed in his cross-
examination that the portion shown in red colour and even the portion shown in yellow colour exclusively belong to him. He also deposed that he has constructed the gate and wall, shown in red colour around one year before the filing of the suit. He also deposed that he did not construct anything after the filing of the suit.
Suit No. 171/04/08 Page 8 of 1221 It is settled law that the decision in a civil suit depends upon the preponderance of probabilities and in the present suit, the balance clearly tilts in favour of the plaintiff since, the plaintiff alongwith his own evidence has brought an independent witness in the witness box who has deposed that the portion shown in red colour in the site plan was common space. On the other hand, defendant no. 1 has not brought any independent witness and has even denied the contents of his own affidavit as being not within his knowledge. Defendant no. 1 has even failed to cross-examine the plaintiff's witnesses and therefore, the testimonies of the plaintiff's witnesses have remained uncontroverted, unchallenged and unrebutted. Therefore, there is no reason to disbelieve the testimonies of the plaintiff's witnesses. In these circumstances, this court is inclined to believe the version of the plaintiff and therefore, these issues are decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3:-
Whether there is any cause of action in favour of plaintiff and against the defendant? OPD.
Whether the plaintiff has no locus standi to file the present suit? OPD.
Whether the suit is bad for non-joinder of necessary parties? OPP.Suit No. 171/04/08 Page 9 of 12
Whether suit is barred by Section 41 (h) of Specific Relief Act? OPD.
22 Onus to prove issue no. 5 was placed upon the plaintiff. However, since the issue was raised by the defendant, the onus should have been placed upon the defendant. The same stands corrected and the onus to prove issue no. 5 shall be on the defendant.
23 Onus to prove the rest of the issues was placed upon the defendant. The defendant has deposed in his cross- examination that he is not aware of the contents of his affidavit and therefore, his affidavit cannot be read in evidence. In view of this, it is concluded that the defendant has neither led any evidence nor placed on record any documents to prove these issues. Therefore, these issues are decided against the defendant.
Application under Order 39 Rule 2-A CPC.
24 The plaintiff has stated in his application that vide order dated 10.11.2004, this court had directed the parties to maintain status quo till next date. The next date was fixed as 03.12.2004. It is further his case that in spite of the said orders, the defendant continued to raise the construction and therefore, he has committed contempt of court.
Suit No. 171/04/08 Page 10 of 1225 In his reply, defendant no. 1 stated that he has not raised any unauthorised or illegal construction and has only done repairing work in his own portion on the roof with which the plaintiff has no concern. He further stated that the application under Order 39 Rule 2A CPC has been filed only to harass and humiliate defendant no. 1 and therefore, the application be dismissed.
26 Order 39 Rule 2A Code of Civil Procedure provides for strict penalties of attachment and arrest and mere bald averments cannot be permitted to prove the breach in this regard. The plaintiff has merely stated the facts and the photographs placed by him do not conspicuously show the construction of any Chhajja as the photographs of the portion above the door have not been taken. He has not placed on record any photograph showing the date on which, such photographs were taken by either holding a newspaper or putting on record a photograph with a proper date. Therefore, it cannot be inferred as to on what date were the photographs taken and whether there was a Chhajja being constructed even prior to the filing of the present suit. Thus, the plaintiff has not been able to prove that at the time of the restraint order, there was no construction and the said construction was carried out by the defendant subsequent to 10.11.2004. Mere bald averments do not prove that the defendant has committed the Suit No. 171/04/08 Page 11 of 12 breach of the order of the court and therefore, the application of the plaintiff is dismissed.
Relief:-
27 In view of my findings on various issues as discussed above, the suit is decreed in favour of the plaintiffs and against defendant no. 1 for permanent injunction and defendant no. 1, his associates, agents, masons, labourers etc. are restrained from raising any unauthorised construction of the Chhajja as shown in red colour in the site plan. The plaintiffs are also entitled to a decree of mandatory injunction and defendant no. 1 is directed to remove the unauthorised construction i.e. the windows, gate and the wall raised in the common area as shown in red colour in the site plan. Costs of the suit be also awarded in favour of the plaintiffs and against defendant no.1. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court today on this 27th day of April, 2013.
(Ruchi Aggarwal Asrani) Civil Judge, Central-02 Tis Hazari Courts,Delhi.
Suit No. 171/04/08 Page 12 of 12