Delhi District Court
Sh. Chhat T A R Singh vs Sh. Anand Kumar on 29 March, 2010
Suit No.175A/09 page no. 1/11
IN THE COURT OF SH. SANJAY SHARMA, JSCC CUMASCJ
CUMGUARDIAN JUDGE (WEST): DELHI
Suit No.17 5A / 0 9
Unique Case ID No. 024 0 1C 0 5 1 4 7 0 2 0 0 3
Date of institution of the suit : 31.08.200 1
Date on which order was reserved : 18.03.201 0
Date of decision : 29.03.201 0
Sh. Chhat t a r Singh
S /o Sh. Shri Ram
R/o 9562 / 3 , Baradari, Gaus h al a road,
Kishanga nj, Delhi
......Plaintiff
Versus
1.Sh. Anand Kumar S /o Sh. Kanchi Lal
2. Sh. Uttam Kumar S /o Sh. Anand Kumar Both residen t of :
R/o RZ A/48, Milap Nagar, Uttam Nagar, Delhi 59.
Also at :
A127, Nand Ram Park, Uttam Nagar, New Delhi 59.
3. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Delhi.
.....Defenda n t s J U D G M E N T
1. The plaintiff filed a suit against the defenda n t s for a decree of perm a n e n t injunction to restrain the defenda n t no. 1 and 2 from raising illegal constr uc tion in a portion / r o o m of the property No. 9562 / 3 , Baradari, Gaus h ala Road, Kisha n Ganj, New Delhi (hereinafter referred as 'the suit property').
Suit No.175A/09 page no. 2/112. According to the plaintiff, he is residing along with his family members in the property No. 9562 / 3 , Baradari, Gaus h ala Road, Kishanga nj, Delhi. The defenda n t no. 1 and 2 are in illegal posses sio n of one room (rasoi) meas u ring 5' 8' in the suit property. The plaintiff's father was the owner of the suit property and he had inducted Sh. Kanchi Lal/t h e defenda n t no. 1's father as a tena n t in the suit property. The defenda n t no. 1 is in illegal occupa tion of the said portion in the suit property after the death of his father Sh. Kanchi Lal.
3. It is the case of the plaintiff that the defenda n t no.1 constr uc ted an Aagan / c o u r ty ar d upon the MCD land in front of the suit property on 25.08.20 0 1 without permis sion of MCD. The defenda n t no. 1 and 2 removed the sewer man h all and converted it into an Aagan / c o u r ty a r d and constr u cte d a narrow drain by affixing a pipe from the sewer to the Main sewer hall without seeking permission of the defenda n t no.3 / M CD. The defenda n t no. 1 constr uc ted a Chajja (projection) on the roof of the suit property. The defenda n t no.1 was constr ucting an additional room in the suit property. The plaintiff appre he n d e d outbrea k in the area due to illegal acts of the defenda n t s . The defenda n t s were raising un a u t h orized constr u c tion despite repeated request s of the plaintiff. The defenda n t no. 1 and 2 threate ne d the plaintiff and his family member s.
4. In the Written Stateme n t, the defenda n t no. 1 and 2 raised preliminary objection that the plaintiff has no locus standi to file the suit. The suit is without cause of action. The plaintiff concealed material facts and not approac he d the court with clean hand s. The suit is bad for non joinder and mis joinder of necess a ry parties. It is contende d that the house No. 9562 /A and 9562 / 3 are separate and distinct properties. The defenda n t no.1 has no concern with the property of the plaintiff bearing House no. 9562 / 3 . The plaintiff has no right, title or interest in the property of the defenda n t no.1 bearing house no. 9562 /A. It is conten d ed that the Delhi Pinjrapol Society (Regd.) is the owner of the land under ne a t h the House no. 9562 /A and 9562 / 3 . The defenda n t no.1 is a lessee of the said Society in respect of the land under ne a t h House no. 9562 /A. The plaintiff is also a lessee of the said Society in respect of land under ne a t h House No. 9562 / 3 .
Suit No.175A/09 page no. 3/115. It is stated that the defenda n t no.1 built the house No. 9562 /A on the land leased by the Society and is in posses sion of the said land since 1960. It is contende d that the said Society issued indepe nde n t rent receipts to the defenda n t no.1 and the plaintiff w.r.t. the land under ne a t h house no. 9562 / 3 and 9562 /A respectively. The defenda n t no. 1 is regularly paying the lease amou n t of the land. The defend a n t no.1 is in posses sion of property No. 9562 /A consisting of one room meas u ri ng 9 feet x 6.6 feet with an open space meas u ring 4 feet x 6.6 feet. The defenda n t no.1 or his father was never a tena n t of the plaintiff or his father. The defenda n t no.2 is residing in Uttam Nagar, New Delhi.
6. It is further stated that the defenda n t no.1 had filed a Suit for Perma ne n t Injunction against the plaintiff bearing suit no. 237 / 9 5 on 04.07.19 9 5 in respect of House No. 9562 /A, Barad ari, Gaus h al a, Kishan Ganj, Delhi. The defend a n t no.1 filed a site plan of the said house consisting of one room (9' x 6'.6") and open space (4' x 6'.6") in the said suit. The Court of Sh. K. S. Mohi, Ld. Civil Ju dge, Delhi vide order dated 13.11.19 9 7 granted an Ad interim Injunction restraining the plaintiff from interfering in the posses sion of the defenda n t no.1 in respect of the property no. 9562 /A. The Court of Sh. L.S. Solanki, Civil J udge, Delhi decreed the said suit on 30.04.200 1 and passed a decree of perm a n e n t inju nction restraini ng the plaintiff herein from interfering in the peaceful posses sion of the defenda n t no. 1 in the property no. 9562 /A.
7. The case of the defenda n t s is that the property no. 9562 /A is still in the same condition and no addition or alterna tion has been carried out in the said property since 1978 79. It is denied that they removed sewer man hole and built courtyard on the MCD land. It is stated that sewer line was laid down by the MCD before 1 2 years. It is stated that the space infront of his house is still open space. It is denied that the defenda n t s constr uc ted any Chajja on the roof of property No. 9562 / 3 . It is stated that the said Chajja was constr uc ted by the plaintiff over the tin sheet roof of the defenda n t no. 1. The plaintiff failed to remove the said Chajja despite repeated request s. It is prayed that MCD can be ordered to demolish the said Chajja and support pillar built by the plaintiff over the tin sheet roof of the property No. 9562 / 3 .
Suit No.175A/09 page no. 4/118. In the Written Stateme n t , the defenda n t no. 3 /MCD conten d ed that the suit was barred U/S 477 & 478 of DMC Act. It is stated that during the inspection of the property no. 9562 / 3 , Barada ri, Gaus h ala Road, Kisha nga nj, Delhi on 07.07.20 0 3, neither any constr uc tion activity nor any building material was noticed. It is stated that the defenda n t no. 1 closed the sewer hole and converted the same into an 'Angan' on the open space of the suit property. It is stated that the sewer line belongs to Delhi Jal Board and no action is required to be taken by the MCD.
9. In the replication, the plaintiff controvert ed the contention s of the defenda n t no.1 and 2 and re affirmed the averme nt s made in the plaint.
10. On the pleadings of the parties, the following issues were framed on 23.08.200 4:
1. Whether the plaintiff has not come to the court with clean hands and has suppress ed the material facts ? If so, its effect ? OPD
2. Whether the plaintiff has no locus standi to file the suit? OPD
3. Whether the suit of the plaintiff is barred under Section 477 / 4 7 8 of DMC Act? OPD
4. Whether the plaintiff is entitled for a decree of perman en t injuncti on as prayed for? OPP
5. Relief.
11. The plaintiff and the defenda n t no.1 examined them selves as PW 1 and DW 1 in support of their respective case.
12. The plaintiff did not cross examine the defenda n t no.1 (DW1) despite availing several opport u nities and finally, his right of cross examina tion was closed on 16.04.20 0 9.
13. I heard argume n t s of Sh. R.C. Verma, Advocate for the defenda n t no. 1 & 2 and perused the written argume n t s filed by the plaintiff.
Suit No.175A/09 page no. 5/1114. On heaving heard Ld. Counsel for the defenda n t s and perus al of written argume n t s of the plaintiff in the light of evidence on record, issue wise findings are as under:
ISSUE NO.1
15. Ld. Counsel for the defenda n t no.1 and 2 argued that the plaintiff concealed material facts and not approac he d the court with clean han d s . He argued that the defenda n t no.1 has no concern with the property of the plaintiff bearing House no. 9562 / 3 . He argued that correct nu m ber of the property of the defenda n t no.1 is House no. 9562 /A. He argued that the plaintiff is not the owner of the land under ne a t h the suit property. He argued that both the plaintiff and defenda n t s are lessee of Delhi Pinjrapole Society (Regd.) in respect of land under ne a t h the House No. 9562 / 3 and 9562 /A. He argued that the defenda n t no.1 filed rent receipts issued by Delhi Pinjrapole Society. He argued that the alleged himself as owner of the property no. 9562 / 3 and the defenda n t no.1's father as a tena nt in the suit property. He argued the plaintiff has not filed any proof of owners hip. He argued that the plaintiff is claiming himself owner of the property no. 9562 / 3 on the basis of a copy of House Tax Assess me n t in the name of his father Sri Ram relating to the period 1961 62 Mark C.
16. Ld. Counsel for the defenda n t no.1 and 2 argued that the plaintiff has not filed site plan of the property no. 9562 / 3 though he referred in his plaint and affidavit filed in evidence. He argued that the plaintiff misled the Court by alleging that the defenda n t no. 1 and 2 converted the sewer man h all into a Courtyard on 25.08.20 0 1. He argued that the defenda n t no. 1 is in posses sion of one room and open space in front of the property no. 9562 /A since 1978 79. He argued that the Site Plan of the house no. 9562 /A consisting of one room and open space was duly proved in the suit No. 227 / 9 5 , which was decreed by the court of Sh. L.S. Solanki, Civil Judge, Delhi on 30.04.20 0 1. He argued that the plaintiff could not prove himself owner of the suit property in the said suit. He argued that the plaintiff filed this suit alleging himself owner of the suit property after his claim was negatived in the earlier suit. He Suit No.175A/09 page no. 6/11 argued that the plaintiff is seeking declaration of his owners hip qua the suit property in the guise of the present suit for perma n e n t injunctio n. He argued that the suit is liable to be dismissed for concealme n t of material facts and not approac hi ng the court with clean hand s.
17. Onus to prove the Issue no. 1 was upon the defenda n t no.1 and 2. The defenda n t no.1 examined himself as DW 1 to discharge the onu s placed upon him to prove this issue. In his depositions, the defenda n t no.1 (DW1) deposed that he is in posses sion of the property no. 9562 /A, Gaus h ala Baradari, Kishan Ganj, Delhi since 1960 as shown in the site plan Ex. DW 1 / 1. He proved the site plan of the said property DW 1 / 1 and Certified copy of Ju dg me n t dated 30.04.20 0 1 in the suit no. 227 / 9 5 Ex. DW 1 / 7. Testimony of the defenda n t remained un challenged as he was not cross examined by the plaintiff.
18. In his cross examina tion, the plaintiff (PW1) admitted that he has not filed docume n t of owners hip on the suit file. He deposed that Certified copy of inspection book of MCD for the year 1961 62 Mark C showing House Tax Assess me n t in the name of his father is the proof of owners hip of his father in respect of the property no. 9562 / 3 , Barad ari, Gaus h ala Road, Kisha ng a nj, Delhi. He deposed that his father never issued any rent receipt to Sh. Kanchi Ram or Sh. Anand Kumar. He admitted that he had not sent any complaint to MCD regarding illegal constr u ction over the sewer man hole. He admitted that he has not filed any site plan of the premises and constr uc tion of illegal chajja in the suit property. He deposed that he filed the suit regarding illegal constr u ctio n and damage to sewer man hole and converting it into an angan on 25.08.20 0 1 becau s e the defenda n t filed four cases against him.
19. On close scrutiny of the evidence on record in the light of the pleadings of the parties, it is evident that the plaintiff suppres s ed the material facts and not approac he d the court with clean hand. The plaintiff deliberately described the property of the defenda n t no.1 as 9562 / 3 instead of 9562 /A. Testimony of the defenda n t that he is in posses sion of the property no. 9562 /A, Gaus h al a Barad ari, Kisha n Ganj, Delhi since 1960 as shown in the site plan Ex. DW 1 / 1 remained un Suit No.175A/09 page no. 7/11 assailed. The plaintiff has not led any evidence to prove that there is no property no. 9562 /A in the suit property. In the earlier suit no. 227 / 9 5 , the plaintiff failed to prove that there was no property with no. 9562 /A. The said Suit was decreed vide Ju dg me n t dated 30.04.20 0 1 and the plaintiff herein was restrained from creating any third party rights in the property no. 9562 /A, Gaus h ala, Baradari, Kisha n Ganj, Delhi.
20. The plaintiff is claiming the defenda n t in posses sion of the property no.9562 / 3 instead of the property no.9562 / A for the reason s best known to him. The plaintiff alleged himself as owner of the property no. 9562 / 3 . The plaintiff has not led any evidence to prove his owners hip in respect of the property no. 9562 / 3 . In his cross examina tion, the plaintiff admitted that he has not filed any proof of owners hip on the suit file. He claimed owners hip on the basis of House Tax Assess me n t for the year 1961 62 in the name of his father Mark C. The plaintiff claimed owners hip of the property no. 9562 / 3 in the pervious suit also but he could not prove it. The said suit was decreed on 30.04.20 0 1. The plaintiff did not challenge the said judgme n t and decree. The said decision attained finality between the parties. The plaintiff filed the suit alleging himself as owner and the defenda n t no.1's father as tena n t of the property no. 9562 / 3 on 31.08.20 0 1. The plaintiff is persiste n tly raising the issue of owners hip of the property no. 9562 / 3 . It is clear that the plaintiff has not filed the suit being aggrieved by una u t h o rized constr u ction. In the guise of the suit for perma ne n t injunction, the plaintiff intended to prove his owners hip qua the property no. 9562 / 3 , Baradari, Gaus h al a Road, Kisha n Ganj, Delhi.
21. The plaintiff in his plaint and affidavit filed in examin ation in chief referred the Site plan of the property no. 9562 / 3 but he has not filed Site Plan of the suit property or the alleged una u t h o rized constr u ction over the roof of the suit property. The plaintiff alleged that the defenda n t no. 1 and 2 are in posses sion of one room / r a s oi in the suit property and converted the sewer man h all in front of the suit property into a courtyard. It is crystal clear from the perus al of the site plan of the property no. 9562 /A Ex. DW 1 / 1 proved in the previous suit and Suit No.175A/09 page no. 8/11 referred in the judgme n t Ex. DW 1 / 7 that the defenda n t was in posses sion of one room meas u ri ng 9' x 6'.6" and open courtyard meas u ri ng 4' x 6'.6" in front of the property no. 9562 /A. It is clear that the alleged court yard / o p e n space was in existence before 25.08.200 1 . The plaintiff alleged that the defenda n t s were constr uc ti ng Chajja over the roof of the suit property but he has not examined any witness from MCD to prove existence of any una u t h o rized constr uc tion in the suit property. He has not filed any photograp h showing constr u ction of the said additional room over the roof of the suit property.
22. In view of the foregoing discus sion, it is evident that the plaintiff had no cause of action against the defenda n t s . The plaintiff invoked the jurisdiction of the Court on non existent ground s for ulterior motives and to keep the defenda n t no.1 involved in litigation. Accordingly, the Issue no.1 is decided in favour of the defenda n t no.1 and 2 and against the plaintiff.
ISSUE NO.2:
23. Ld. Counsel for the defenda n t no.1 and 2 argued that the plaintiff has no locus standi to file the present suit. He argued that the plaintiff and the defenda n t no.1 are lessee in respect of the land under ne a t h the property no. 9562 / 3 and 9562 /A. He argued that both the properties are separate and distinct properties. He argued that the defenda n t no.1 constr u cte d the house no. 9562 /A on the land leased by the Delhi Pinjrapole Society. He argued that the defenda n t no.1 has not carried out any alteration or addition in the suit property since 1978 79. He argued that the plaintiff has no right, title or interest in the property no. 9562 /A of the defenda n t no.1 and he has no right to file this suit against them.
24. It is one thing to say that the defenda n t no. 1 was not raising any un a u t h orized constr u c tio n in his property and it is another thing to say that the plaintiff had no right to move the court against una u t h o rized constr u ction in the property of the defenda n t no.1. It is well settled that any citizen can move the court agains t any person raising constr uc tion Suit No.175A/09 page no. 9/11 in his premises without sanction or permission from the concerne d authority, if the concerned aut hority was not responding to his complaints regarding una u t h o rized constr uc tion.
25. In the case at hand, the plaintiff admitted that he had not sent any complaint / n o tice to the MCD regarding illegal constr u c tion over the sewer and man hole. The plaintiff had no made any complaint to the MCD regarding constr uction of Chajja or an additional room over the property no. 9562 / 3 . The plaintiff moved the court directly without informing the concerned aut hority and waiting for their respon se. The plaintiff could move the court, if the concerne d aut hority was not responding to his complaint regarding una u t h o rized constr uc tion in the suit property.
26. I conclude that the plaintiff had no locus standi to move the court directly without making complaint to the concerne d aut hority regarding the una u t h orized constr u c tion in the suit property. Accordingly, this issue is decided in favour of the defenda n t no.1 and 2 and against the plaintiff.
ISSUE NO.3:
27. Onus to prove this issue was upon the defenda n t no. 3. The defenda n t no.3 has not led any evidence to discharge onus placed upon it to prove this issue. Moreover, Section 478 (3) of the Delhi Municipal Corporation Act saves the suit in which the only relief claimed is an inju nction of which the object would be defeated by giving of the notice or the postpone m e n t of the institution of the suit. Accordingly, Issue no.3 is decided in favour of the plaintiff and against the defenda n t no.3.
ISSUE NO. 428. Ld. Counsel for the defenda n t no.1 and 2 argued that the plaintiff alleged encroac h m e n t of MCD land and una u t h o rized constr u ction of a Courtyard, Chajja and an additional room in the suit property. He argued that the plaintiff has not led any evidence to prove his case. He argued that the defenda n t no.1 filed a suit for declaration and perma ne n t Suit No.175A/09 page no. 10/ 11 inju nction against the plaintiff bearing suit no. 227 / 9 5 in respect of the property no. 9562 /A. He argued that the defenda n t no.1 proved the site plan of the property no. 9562 /A Ex. DW 1 / 1 consisting of one room and open space in the said suit. He argued that the defenda n t no.3 / M CD has not stated anything w.r.t. una u t h o rized constr uc tion in the suit property. He argued that the said suit was decreed on 30.04.20 0 1 and therefore, the case of the plaintiff that the defenda n t no.1 constr u cte d a courtyard by encroachi ng MCD land and merging Sewer man h all is false.
29. Onus to prove the Issue no.4 was upon the plaintiff. The specific case of the plaintiff is that the defenda n t no.1 and 2 removed the sewer man hole and converted it into a courtyard. It is also the case of the plaintiff that the defenda n t s constr uc ted a Chajja over the roof of the suit property and constr u cting an additional room in the suit property.
30. The plaintiff has not led any evidence to prove his case. There is no evidence to prove encroac h m e n t of the MCD land in front of the suit property. The defenda n t no.3 / M CD stated in its written stateme n t that the defenda n t no.1 closed the sewer line and converted the same into an Angan. It was stated that the sewer line was maintaine d by Delhi Jal Board. The plaintiff has not impleaded Delhi Jal Board as a party to the suit nor examined any witness to prove closure of sewer and merger with the open space in front of the property of the defenda n t no.1. The plaintiff has not examined any witnes s from the MCD to prove that the said Chajja over the roof of the suit property was constr uc ted un a u t h orizedly by the defenda n t no.1 and 2. The plaintiff alleged that the defenda n t no.1 and 2 were constr u c ting an additional room in the suit property. The plaintiff has not filed any site plan as to indicate the location of the said room allegedly constr u cte d by the defenda n t no.1 and
2. He has not led any evidence to prove that the defenda n t no.1 and 2 were constr u cting any room in the suit property. The plaintiff has not filed any photograp h to show that the defenda n t no.1 and 2 were constr u cting any additional room in the suit property.
31. In view of the afore said discus sion, I conclude that the plaintiff failed to discha rge the onus placed upon him to prove the issue no.4.
Suit No.175A/09 page no. 11/ 11 Accordingly, the Issue no. 4 is decided in favour of the defenda n t no.1 and 2 and against the plaintiff.
Relief:
32. In view of the foregoing discus sion, the suit for Perma ne n t Injunction filed by the plaintiff against the defenda n t s is dismissed. No order as to costs.
33. Decree sheet be prepared accordingly.
34. File be consigned to Record Room.
Annou nced in open court today the 29 th March, 2010.
(SANJAY SHARMA) JSCC cum ASCJ cum Guardia n Ju dge (West), Delhi 29.03.2 0 1 0