Delhi District Court
Virender Singh vs Mukesh Kumar (Since Deceased) on 10 April, 2023
IN THE COURT OF MS. AMARDEEP KAUR
CIVIL JUDGE-I, PATIALA HOUSE COURT, NEW DELHI
CNR No. DLND03-000796/2014
CS No. 57610/2016
Virender Singh
S/o Sh. Samey Singh
R/o 218, Munirka Village,
New Delhi-110067. ... Plaintiff
Versus
1. Mukesh Kumar (since deceased)
S/o Sh. Bhagwan Singh
Through LRs
2. Surjo Devi
W/o Sh. Bhagwan Singh
3. Beena
W/o Sh. Mukesh Kumar
4. Vikram
S/o Sh. Mukesh Kumar
All R/o 218, Munirka Village,
New Delhi-110067.
5. South Delhi Municipal Corporation
Through Deputy Commissioner
Green Park, New Delhi. ... Defendants
Date of Institution : 25.09.2014
Date of Reserving Judgment : 24.03.2023
Date of Judgment : 10.04.2023
Final Decision: Partly decreed
CS No. 57610/2016 Page No. 1 of 16
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. By filing the present suit, the plaintiff has prayed for a decree of permanent and mandatory injunction in favour of the plaintiff and against the defendants, their agents, assignees, subordinates, servants, associates, representatives etc. directing them to remove the construction of verandah (chajja) and stairs from the area of common gali of suit property bearing municipal no. 218, Munirka Village, New Delhi-110067 or in alternate to pass a decree of mandatory injunction against the defendants directing them to allow the plaintiff to put a stair and to open a window in common gali between the property of plaintiff and defendants.
CASE OF PLAINTIFF
2. It is the submission of the plaintiff that the plaintiff and defendants are related through common ancestors. It is further submitted that the parties are in possession of different portions of the property bearing municipal no. 218, Munirka Village, New Delhi-110067, pursuant to a family settlement between their elders. It is further submitted that the defendants have constructed a verandah (chajja) from ground to top and also placed a cemented slab as stairs to enter the same in the common space which is a 5ft wide gali left by the forefather of the parties for use of all. It is further submitted that when plaintiff started construction of third floor in his own portion of the suit property, the defendants raised strong objection to opening of windows of the suit property towards common gali and to placing of a cemented slab to be used as stairs to enter plaintiff's portion of the suit CS No. 57610/2016 Page No. 2 of 16 property from 5ft wide common gali, despite having themselves raised illegal construction over the 5ft wide common gali. The plaintiff has therefore approached this court seeking directions against the defendants to remove the illegal construction upon the suit property or in alternate to allow them to use the common gali to their own advantage.
CASE OF DEFENDANTS
3. Defendants in their written statement denied the case of plaintiff and submitted that the plaintiff in garb of the present false and frivlous suit is trying to raise illegal and unauthorized constructions. It is further submitted that the plaintiff has already covered his portion of the common gali and has also encroched upon the portion as alloted to the defendants by their forefathers. It was further submitted that the present suit is barred by res- judicata owing to a previous suit between the parties bearing no. CS 560/2007 which was disposed of by the court after recording of statement of the parties. It was further submitted that contrary to the claim of the plaintiff, the defendants have raised construction in their own portion within the permissible limit without flouting any rules and regulations.
REPLICATION
4. The plaintiff has filed Replication to the Written Statement of defendants reiterating the facts contained in the plaint. He has further denied all the contentions raised by the defendants in their Written Statement.
ISSUES FRAMED
5. In view of the contending submissions made in the pleadings filed by CS No. 57610/2016 Page No. 3 of 16 both parties, following issues were framed vide order dated 12.08.2016:-
i) Whether the present suit is bared by provisions of section 11 CPC as the matter in issue was decided finally by the court of Sh. Sumit Dass, Ld. Civil Judge in Suit no. 560/07 vide order dated 12.10.2007? OPD
ii) Whether the construction being raised by the plaintiff in his property bearing no. 218. Munirka Village is illegal and unauthorized encroachment of common gali has been made by the plaintiff? OPD.
iii) Whether the suit is bad for non-joinder of necessary parties DDA and MCD? OPD.
iv) Whether the plaintiff is entitled to mandatory injunction in his favour and against the defendants directing the defendants to remove construction of varandha/jhaja and stairs from the common gali?
OPP.
v) Whether the plaintiff is entitled to permanent injunction in his favour and against the defendants restraining the defendants from hindering the opening of gates, windows and staircase in the common gali by the plaintiff? OPP.
vi) Relief.
EVIDENCE LEAD BY PLAINTIFF
6. The plaintiff examined two witnesses in support of his case.
7. Plaintiff no.1, Sh. Virender Singh examined himself as PW1, deposed vide his affidavit Ex. PW1/A1 in consonance with the averments of the plaint and relied upon the following documents:-
i) Copy of suit no. 560/2007 Mark PW-1/A.
ii) Copy of order dated 12.10.2007 Mark PW-1/B. CS No. 57610/2016 Page No. 4 of 16
iii) Copy of legal notice dated 12.09.2014 Ex. PW-1/C.
iv) Postal receipt Ex. PW-1/D.
v) Site plan of suit property Ex. PW-1/E
vi) Photographs mark PW-1/F(colly.).
vii) Status report of local commissioner Ex. PW-1/G.
8. Sh. Satish Kumar, stepped into the witness box as PW-2 and deposed vide his affidavit Ex.PW2/A on the lines of PW-1.
9. Both witnesses were duly cross examined by the defendants. Thereafter, evidence of the plaintiff was closed on 31.08.2018 and the matter was listed for evidence of the defendants.
EVIDENCE LEAD BY DEFENDANT
10. Three witnesses were examined in support of the defence.
11. Sh. Mukesh Kumar, defendant no. 1 was examined as DW-1. He deposed vide his affidavit Ex. DW-1/A and relied upon the documents i.e. Copy of joint statement of plaintiff and defendant no. 1 recorded in CS No. 560/07 (Mark A).
12. Smt. Beena Devi was examined as DW-2. She tendered her examination in chief by way of affidavit Ex DW2/A. She deposed on the lines of DW-1 and relied upon the same documents. Further, Smt. Babli was examined as DW-3 who deposed by way of affidavit Ex DW3/1.
CS No. 57610/2016 Page No. 5 of 1613. All witnesses were duly cross examined by the plaintiff and Defence evidence stood closed on 15.11.2022. Thereafter final arguments were heard on behalf of both parties and matter was reserved for judgment.
APPRECIATION OF EVIDENCE AND ISSUE WISE FINDINGS
14. I have perused the record in light of the relevant legal provisions and arguments advanced by both parties. After weighing the rival contentions and after appreciating the evidence adduced by the plaintiff, my issue-wise findings are as below :-
Issue No.1: Whether the present suit is bared by provisions of section 11 CPC as the matter in issue was decided finally by the court of Sh. Sumit Dass, Ld. Civil Judge in Suit no. 560/07 vide order dated 12.10.2007? OPD.
15. The onus to prove this issue is upon the defendant.
16. Section 11 of the C.P.C. which deals with res-judicata reads as below:
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
17. Therefore, there are three essentials of the general principle of res- judicata viz:
CS No. 57610/2016 Page No. 6 of 16a. A decision by a Competent Judicial Tribunal which is final, b.It must determine the same questions as are sought to be controverted in the litigation in which the plea of res judicata is raised, and c. Parties to the proceedings in which the plea of res judicata is raised must be the same as were parties to the decision which acts as res judicata.
18. I have perused the pleadings of the previous suit bearing no. 560/2007 titled Mukesh Kumar vs. Samey Singh and Virender Kumar disposed off by the court of Ld. CJ on 12.10.2007 and compared the same with that of the present suit.
19. While the suit bearing no. 560/2007 was filed by the present defendant against one Sh. Samey Singh and the present plaintiff with the submission that the defendants are trying to raise illegal construction upon the roof of the plaintiff and therefore plaintiff is entitled to a decree of injunction restraining the defendants and further seeking directions to remove/demolish unauthorized construction already raised, in the present suit the plaintiff (who was defendant no. 2 in the previous suit) has sought injunction against defendants from encroaching upon a gali common to both the parties and to further seek directions against the defendant to remove/ demolish unauthorized constructions allegedly raised by them over the said common gali. Therefore, while in the previous suit the subject matter for determination was that whether the defendant has infringed the exclusive right of the plaintiff to the 'roof top' of his property by raising or attempting to raise CS No. 57610/2016 Page No. 7 of 16 unlawful construction, the question for determination in the present suit is if the defendants have encroached upon a 'common gali' by way of unlawful construction disabling the plaintiff from enjoying their rights upon the same and therefore, entitling them to a decree of mandatory and permanent injunction. Clearly, the issues in the two suits are not substantially or directly identical.
20. Further, it is also pertinent from record that the previous suit bearing no. 560/2007 titled Mukesh Kumar vs. Samey Singh and Virender Kumar was not decided on merits by a competent court but was instead disposed of by the court of Ld CJ upon a settlement between the parties. Therefore, it cannot be said that the issues raised in the previous suit between the parties were heard and finally decided by the court for the order to act as res- judicata to the subsequent suit between the parties i.e. the present proceedings.
21. Therefore, issue no. 1 is decided against the defendant and in favour of the plaintiff.
Issue no. 2: Whether the construction being raised by the plaintiff in his property bearing no. 218, Munirka Village is illegal and unauthorized encroachment of common gali has been made by the plaintiff? OPD.
22. The onus to prove this issues is upon the defendant.
23. All defence witnesses i.e. DW-1, 2 & 3 have submitted in their deposition on oath that the plaintiff has already covered his part of the CS No. 57610/2016 Page No. 8 of 16 common gali with illegal construction and also encroached upon the area of the defendant. He has further submitted that the construction upon the area as occupied by the plaintiff is illegal and unauthorized and same has been carried out without getting any sanctioned plan from SDMC. It has also been submitted that the plaintiff has constructed an illegal door and window in the common gali by extending his covered area by 2 to 3 inches ahead of the original construction. However, none of the witnesses have placed on record any document to support their submissions. Neither the original or last sanctioned plan of the property of plaintiff was brought on record nor any site plan of the property of plaintiff as it exists today has been tendered in evidence to allow this court to compare the two and determine existence of any illegal/unsanctioned construction, if any. The defence witnesses have also not placed on record any photographs of the alleged illegal construction. No witness has been summoned from any municipal authority to support their submission that the alleged construction is illegal.
24. Therefore, issue no. 2 is also decided against the defendant and in favour of the plaintiff.
Issue No. 3: Whether the suit is bad for non-joinder of necessary parties DDA and MCD? OPD.
25. An application under Order 1 rule 10 CPC was moved by the plaintiff for impleadment of SDMC and DDA as defendants in the present suit. The said application was allowed vide order dated 22.12.2016 and both SDMC and DDA were impleaded as defendants who have duly contested the matter. Accordingly, the above issue has now turned infructuous and its CS No. 57610/2016 Page No. 9 of 16 determination is no more warranted.
Issue no. 4: Whether the plaintiff is entitled to mandatory injunction in his favour and against the defendants directing the defendants to remove construction of varandha/chajja and stairs from the common gali? OPP.
26. Plaintiff has examined himself as PW-1 wherein he has deposed that the property bearing no. 218, Munirka Village, New Delhi -110067 is the ancestral property of both the parties. The parties were awarded separate share through a family settlement in the year 2007. It is further submitted that a common space of 5ft was left between the portion of plaintiff and the defendants wherein the defendants have now illegally constructed a three storey building and a varandha from 1st floor to top floor. It is further submitted that the common space also has a sewer line laid by MCD. It is further deposed that the defendants have put a slab as staircase in the said common gali to enter their premises. However, the defendant did not cross examine the witness on the above said submissions and constrained its examination to peripheral questions, unrelated to the claim of the plaintiff. Further, on the contrary, the defendants have made various suggestions to PW-1 suggesting that the gali as alleged by the plaintiff is a common space. Relevant portion in this regard is replicated as below:-
"... .... It is wrong to suggest that my main entrance is from the front gali and the present entrance is my second entrance from the common gali in dispute. .... It is wrong to suggest that I have already used space of the common gali.... It is wrong to suggest that I have installed the gate and raised the fresh construction in order to harass the defendants herein and to further occupy the space in common gali despite having already used the space alloted to me by my forefathers". (sic) CS No. 57610/2016 Page No. 10 of 16
27. Therefore, the defendants by way of above said suggestions have admitted the case of the plaintiff that the 5ft gali between the property of plaintiff and defendant is common in interest and right, to both the parties. Further, since no cross examination is done by the defendants in regards to the deposition of witness PW-1 that the defendants have raised illegal construction of three storey building upon the common space/gali and thereby infringed the rights of the plaintiff, this court has no reason to disbelieve the un-controverted testimony of PW-1 in this regard.
28. Further, PW-2 Sh. Satish Kumar who is the elder brother of plaintiff, has also deposed on similar lines as PW-1 and submitted that defendants have raised a three storey building on their portion of the property and also constructed a varandha/chajja from 1st Floor to top Floor in the common space of 5ft/gali which was left open by the forefathers of the parties to be enjoyed jointly by all the parties. He further submitted that the defendants have also placed a slab to be used as staircase to enter their room in the common gali. The witness further deposed that the plaintiff has not encroached upon any portion of the common gali and had simply razed the old structure existing on the property prior to the family partition and constructed a new structure on the same portion. The witness was duly cross examined by ld. Counsel for defendant no. 1 to 4. However, the cross examination was silent in regards to the illegal construction raised by the defendant as deposed by witness PW-2 in his chief.
29. Therefore, the defendants did not make any attempt to disprove the CS No. 57610/2016 Page No. 11 of 16 claim of the plaintiff by raising credible doubt upon the testimony of witnesses by way of cross examination. Therefore, in absence of cross examination of witnesses in regards to their deposition on oath regarding the issue of unauthorized illegal construction, this court is constrained to believe that the defendants have admitted the claim of the plaintiff in this regard.
30. The defendants have also not lead any evidence in their testimony to disprove the submissions made by palintiff. The testimony of DW-1 is silent upon legality of the construction raised by him as alleged by the plaintiff. Evidence by way of affidavit of DW-1 (Ex. DW-1/A) has focused upon the illegal construction including unlawful opening of doors and windows, raised by the plaintiff in the common gali. However, no attempt has been made by witness DW-1 to deny the claim of the plaintiff that the defendants have raised illegal construction as submitted by him in his plaint and later in his evidence. Further, DW-1 in this cross examination has submitted that he got the site plan of his property sanctioned from SDMC prior to its construction, however no such document showing approval/sanction/ permission has been placed on record by the witness.
31. DW-2 Smt. Beena Devi w/o Sh. Mukesh Kumar (DW-1) deposed on similar lines as DW-1 and submitted that the plaintiff has covered his portion of common gali with illegal construction and has also covered area belonging to the defendant and is now attempting to open doors and windows towards the privacy of the answering defendants. However, much like DW-1, testimony of DW-2 as well, is silent upon the legality of constructions raised by the defendants as submitted by the plaintiff and witnesses in their CS No. 57610/2016 Page No. 12 of 16 deposition. Further, the witness in her cross examination, contrary to the submissions made by DW-1 has submitted that no sanction was obtained from MCD before constructing their own property in the year 2006. Relevant portion of the testimony recorded on 16.01.2019 is reproduced as below:-
"... My property was constructed in the year 2006. We have not obtained any sanctioned plan from MCD while raising the construction... ..."(sic).
32. DW-3 Smt. Babli who is the sister-in-law of DW-1 deposed on similar line as DW-1 and DW-2 and submitted that the plaintiff has covered his part of common gali with illegal construction and has also covered the area of the defendant. It is further submitted that the plaintiff is now trying to open window and door towards the privacy of the defendants. However, DW-3 also did not dispose anything about the construction upon the property of defendants.
33. Therefore, in view of the discussion above, it stands established that the alleged gali of 5ft between the properties of the plaintiff and that of the defendants as shown in the site plan Ex. PW-1/E is common to the plaintiff as well as the defendant. It further stands established by way of un-rebutted testimony of PW-1 and PW-2 that the defendants have raised illegal construction without any sanction or approval from the competent authority over the common gali wherein the parties share joint interest. Therefore, it is clear from the evidence led on record that defendants by raising illegal construction upon the common gali have infringed the rights of the plaintiff and therefore he is entitled to a decree of injunction in his favour and against CS No. 57610/2016 Page No. 13 of 16 the defendants, directing the defendants to remove construction of varandha/chajja and stairs from the common gali.
34. Accordingly, issue no. 4 is decided in favour of the plaintiff and against the defendants.
Issue no. 5: Whether the plaintiff is entitled to permanent injunction in his favour and against the defendants restraining the defendants from hindering the opening the gates, windows and staircase in the common gali by the plaintiff? OPP.
35. The onus of the present issue is upon the plaintiff. As discussed above that the gali of 5ft as shown in the site plan Ex. PW-1/E has already been established to have common interest for both the parties.
36. The plaintiff in the present suit has prayed that he may be allowed to open door and windows in the common gali. He has examined two witnesses in support of his case. However, none of the witnesses have placed on record any sanction /permission from competent authority which has approved the change in construction/ site plan of the property in compliance of the bylaws prevailing in the area. Even otherwise, it has been admitted by the plaintiff's witnesses that the suit property of the plaintiff has an entrance from the side of the main road which has been clearly marked on the site plan Ex. PW-1/E and the plaintiff has failed to render any reason as to why the present gate and windows are insufficient and why he needs to open new windows and doors towards the common gali shared between the parties.
CS No. 57610/2016 Page No. 14 of 1637. In presence of an alternate remedy already available with the plaintiff i.e. the entrance being used till date, no grounds are made out to grant mandatory injunction as prayed, which itself is an equitable relief.
38. Accordingly, issue no. 5 is decided against the plaintiff.
RELIEF
39. For the reasons assigned hereinabove, the suit of the plaintiff is partly decreed. He is granted the following reliefs:
i) A decree for permanent and mandatory injunction is passed in favour of the plaintiff and against defendant no. 1 to 4 directing them to remove/demolish illegal construction upon the varandha/chajja and slab/staircase in the common gali as shown in site plan Ex. PW-1/E, within 60 days from today.
ii) Further, a decree for permanent and mandatory injunction is passed in favour of the plaintiff and against defendant no. 5 (SDMC) directing them to immediately remove/demolish illegal construction upon the varandha/chajja and slab/staircase in the common gali as shown in site plan Ex. PW-1/E, if defendant no. 1 to 4 fails to do within 60 days from today.
iii) Costs of the suit is also awarded to the plaintiff.CS No. 57610/2016 Page No. 15 of 16
40. Decree sheet be prepared upon payment of deficient court fees, if any. Further, certified copy of the site plan be annexed with the decree sheet. Plaintiff is directed to take steps in this regard.
41. File be consigned to record room after due compliance.
Digitally signed by AMARDEEP AMARDEEP KAUR KAUR Date: 2023.04.10 16:15:59 +0530 Announced in the open Court (AMARDEEP KAUR) on 10.04.2023 Civil Judge-I, New Delhi CS No. 57610/2016 Page No. 16 of 16