Delhi District Court
Prem Chona vs Sh. Kanwaljit Singh Dhillon on 9 December, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURTS, NEW DELHI.
CS DJ No.9701/16
Prem Chona
S/o Sh. Beli Ram Chona
R/o C-549, Defence Colony
New Delhi.
.... Plaintiff
Versus
1. Sh. Kanwaljit Singh Dhillon
R/o 123, Jor Bagh,
New Delhi - 110 003.
2. M/s. I.G. Builders & Promoters
Pvt. Ltd. Through its Director/Partner/
Sole Proprietor
Having their Office at :
C-581, Defence Colony
New Delhi - 110 024.
3. Dy. Commissioner
Central Zone (SDMC)
Lajpat Nagar, Near Jal Vihar
New Delhi
... Defendants
Date of Institution : 08.03.2016
Date of Decision : 09.12.2021
JUDGMENT
A suit for mandatory and permanent injunction has been filed by the plaintiff for directing defendants to remove the illegal encroached construction adjacent to the dividing wall of the property bearing No.C-549, Defence Colony, New Delhi (hereinafter referred to as the "the suit property") and rectify as CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 1 of 27 per the sanctioned plan of the defendants and also to restrain the defendants from raising any further construction adjoining the dividing wall and the stilt / open parking area of the suit property and for Mandatory Injunction to direct defendant no.3 to verify as to whether the construction carried out in the suit property is in accordance with the sanctioned plan.
1. Facts in brief are that the plaintiff is the sole and absolute owner of property bearing No.C-549, Defence Colony, New Delhi i.e. the suit property, admeasuring 325 Sq. Yards by virtue of Conveyance Deed dated 22.02.2005 executed in his favour by President of India. It is a built up 50 years old residential property having ground, first, second and rear portion of the third floor with open terrace. The plaintiff along with his wife and daughters is living in the suit property. The building has been constructed on load bearing walls which was a common building structure technique in those days.
2. It is asserted that on 30.06.2015, defendant no.1, owner of the adjoining property bearing No.C-548, started excavation in his plot for reconstruction but he compromised the precautions to be taken by him while carrying out the demolition. On 22.06.2015, the plaintiff saw a JCB inside the adjoining premises for demolition. The plaintiff immediately contacted Sh. Balbir Singh and enquired from him as to why that defendant no.3 had brought in JCB machine for demolition even though he had agreed not to use the said machine. Huge blows were given by JCB to the adjoining common wall which had an effect like an earthquake because of which cracks developed in the building of CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 2 of 27 the plaintiff. On 23.07.2015, while the plaintiff was undergoing a surgery, he was informed by the domestic servant that huge noise was coming and even cracks had emerged in the floors and the walls of the suit property. Various meetings took place between the representative of the plaintiff and defendant but the issue could not be resolved.
3. It is submitted that since the house of the plaintiff was declared unsafe by the Structural Engineer, the plaintiff after discharge from the hospital, shifted to an apartment in the Green Park, New Delhi. Thereafter, the necessary repairs in the plaintiff's property were carried out by Structural Engineer. When the requests and submissions of the plaintiff did not yield any result, he filed a suit defendants bearing CS (OS) No.41/2015 for permanent injunction against the defendants and for damages in the sum of Rs.67,20,000/-, which is pending in the court of learned District Judge.
4. The plaintiff has further submitted that in the pending suit bearing No.41 of 2015, both the parties were directed by the Hon'ble court to file their respective approved sanctioned plan to ascertain the exact position. The sanctioned plan of the property of defendant no.1 was accordingly supplied to the plaintiff by defendants no.2 and 3. On perusal of the site plan, it was noticed that the shape and size of plot No.C-548 has been shown incorrectly and it did not match the exact shape of the plots as existing on the site. According to the respective site plan, the two properties did not coincide and on comparison it was found that the lower right corner of the plot at C-549 is an CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 3 of 27 obtuse angle while the angle on lower left corner of C-548 is a right angle and not an acute angle. But this was not shown in the site plan. Furthermore, as per the site plan, there should have been a 7 feet wide void between the two sites but the same does not exist physically.
5. It is further submitted that while the construction was being carried out, screen/sheets had been erected around the site of the construction and the property of the defendant was not visible. Behind the screens, defendants encroached upon the property of the plaintiff and also defaced it. It is only when the screens were removed that the plaintiff noticed that the defendants have demolished half of the exterior wall of the suit property i.e. at least 6 inches thick portion all along the length between C-548 and C-549 as is visible in the photographs No.1 and 2 annexed with the plaint. This fact was brought to the knowledge of the defendants and Sh. Balbir Singh who is the representative of the defendants no.2 and 3 and the property was measured immediately and the version of the plaintiff was found to be correct.
6. It is submitted that due to the damages caused in the suit property because of the encroachment done by the defendants, the plaintiff had to get the retrofitting done for the weak foundation, which happened because their half exterior wall was demolished while encroachment was done by the defendants. The suit is therefore, filed for mandatory injunction to direct the defendants to remove the illegal encroached construction adjoining to the wall of the suit property and CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 4 of 27 permanent injunction to restrain the defendants from raising further construction adjoining the wall. A decree for mandatory injunction has also been sought to direct defendant no.3 to verify if the suit property has been constructed as per the sanctioned plan.
7. Defendant no.1 in his written statement has taken preliminary objection that the plaint does not disclose any cause of action. It is asserted that the plaintiff had moved out of the suit property in 2014 when the construction of the third floor of his property commenced. The plaintiff has made a false submission that he was present in his house at the time when the excavation process in the plot of the defendant started.
8. It is further claimed that the suit is barred under Order 2 Rule 2 CPC as the previous suit bearing No.41 of 2015 has been filed by the plaintiff wherein same relief has been claimed by the plaintiff. The defendant has claimed that the property of the plaintiff is an old construction which does not have strong foundation, a fact which is also admitted by the plaintiff that the structure is weak. The plaintiff in October / November 2014 started construction of his third floor and also did some structural changes to the ground, first and second floor of his building. The construction of third floor may have further weakened the already weak structure because of which cracks may have developed and damage may have occurred. It is further claimed that the plaintiff did not obtain any proper sanction from municipality and the changes made by him in his property are illegal. The plaintiff has carried out unauthorized and illegal CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 5 of 27 construction on the third floor premises of his property. It is further submitted that as per the Agreement defendant no.2 undertook the liability for any damage, if any, caused to the third party. Therefore, defendant no.1 has been wrongly impleaded as a party. Any damages if caused to the property of the plaintiff, is the liability of defendant no.2. Moreover, the same had occurred because of the changes and constructions carried out by the plaintiff himself. It is asserted that the present suit has been filed solely with intent to blackmail the defendants and the suit is liable to be dismissed.
9. On merits, it is denied that the defendant had chipped the wall by 6 inches and constructed pillars into the wall of the plaintiff. It is submitted that suit is without merit and is liable to be dismissed.
10. Defendant no.2 in his written statement has taken the objections on the suit of the plaintiff being barred under Order 2 Rule 2 CPC. It is also claimed that the present suit is the gross abuse of process of law. There is an error apparent in the site plan of the property which has been filed by the plaintiff. The contents of the Report dated 29.02.2016 given by Arvind Bhatnagar, Architect is also highly suspicious as it seems to have been created at the behest of the plaintiff to extract money from the answering defendant. It is further asserted that false allegations have been made by the plaintiff that while raising construction screens had been erected which is in contradiction and an improvement of the facts mentioned in earlier suit bearing No.41 of 2015.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 6 of 2711. It is also submitted that the plaintiff has no locus standi to file the present suit. It is submitted that the property bearing No.C-548, Defence Colony has been constructed by the defendants in accordance with all the applicable laws and after obtaining proper sanctioned plan. It is submitted that there is no encroachment made in any part of the plaintiff's property and the suit is without any cause of action.
12. On merits, all the averments made in the plaint are denied and it is claimed that the suit is liable to be dismissed.
13. Defendant no.3/SDMC in its written statement took similar objections that the suit is barred under section 477 and 478 of the DMC Act. The suit does not disclose any cause of action and seems to have been instituted only to settle personal issues with the defendant. The present suit is not tenable against the answering defendant and is also barred under section 41 (h) and (i) of Specific Relief Act.
14. It is further submitted that the properties in question were inspected by field staff on 22.11.2017 and also by Ex. Engineer on 24.11.2017 and the inspection revealed that building plan for property No.C-548 was sanctioned vide No.76/OL/SP/B/HQ/SDMC/2015 for the construction of residential building comprising of basement, Stilt, Ground Floor, First Floor, Second Floor and Third Floor on plot measuring 316.89 square meter. The building plan was released on 07.05.2015 having validity up to 06.05.2020. The Occupancy CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 7 of 27 Certificate was given vide File No.17/CC/B/CZ/2016 dated 12.02.2016 against the said building plan. It is submitted that the plot No.C-548 was found to have a frontage dimension of 14.55 meter and the rear dimension was found to be 17.37 meter, which is as per the sanctioned plan. Likewise, for the property bearing No.C-549, frontage dimension was found to be 14.65 meter and the rear dimension was found to be 14.85 meter, which also is as per the sanctioned building plan. It is asserted that the site inspection revealed that the status of plaintiff's property as given in the plan is not accordance with regularization plan. At site, there is a toilet, bathroom and pota-cabin on the fourth floor which is not shown in the sanctioned plan. As per the record, Building plan for plaintiff's property was last sanctioned in the year 2014 for additions and alterations in the old structure.
15. It is further submitted that in the Inspection, it was noted that the front wall measuring approximately 6 inches of plaintiff's (sic) property falls in the suit property, giving an impression of encroachment on the land of plaintiff's property. Detailed measurement was therefore, done at site and it was found that front portion of plaintiff's property to the extent of 1.68M is on government land.
16. On merits, all the averments were denied for want of knowledge.
17. The plaintiff in his replications to the written statement of defendants reaffirmed the averments made in the plaint.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 8 of 2718. Issues in the pleadings were framed by my predecessor on 29.01.2019 which are as under:
1. Whether the suit is barred by the provisions under Order II Rule 2 CPC? OPD
2. Whether defendants have carried out illegal encroachment and construction in the suit property? OPP
3. Whether plaintiff is entitled to mandatory injunction as prayed? OPP
4. Whether plaintiff is entitled to permanent injunction as prayed in prayer clause (b) of plaint? OPP
5. Relief.
19. Plaintiff in support of his case examined PW1 Ms. Atika Chona, his daughter. She proved her affidavit of evidence Ex.PW1/X. The documents relied upon are Ex.PW1/2 to Ex.PW1/10. Certificate under section 65B of IEA is Ex.PW1/Y and Ex.PW1/Y1.
20. PW2 Arvind Bhatnagar has proved his inspection report dated 29.02.2016 as Ex.PW-1/D-2/X-8.
21. Defendant no.1 Kanwaljit Singh Dhillon appeared as DW1 and tendered his affidavit of evidence as Ex.DW1/A. The collaboration agreement dated 08.05.2015 is Ex.DW1/1. The witness was duly cross examined by the plaintiff.
22. DW2 Gireesh Chaudhary is the director of defendant no.2 who tendered his affidavit in evidence, CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 9 of 27 Ex.DW2/A and proved the documents in support of his case as Ex.D2W1/1 to Ex.D2W1/9.
23. DW3 Sh. Raman Lal Sharma, UDC, Building Department, SDMC proved the building plan of property No.C- 548 of the defendant as Ex.DW3/1. Completion certificate is Ex.DW3/2. Copy of letter dated 23.02.2016 issued by the SDMC is Ex.DW3/3. The copy of occupancy certificate dated 18.05.2016 is Ex.DW3/4.
24. Detailed testimony of the witnesses shall be considered subsequently.
25. Learned counsel for the plaintiff has argued that defendant no.1 is the owner of adjoining property bearing No.C- 548, Defence Colony. He had started fresh construction after demolishing the earlier structure and caused damaged to the property of the plaintiff for which he has filed a separate suit for damages which is still pending trial. The sheets were erected around the plot at the time of raising construction because of which the plaintiff was not aware of the extent and nature of construction being carried out by the defendant. After the construction was complete, the sheets were removed and the construction carried out by defendant no.1 became visible. The site plan of the construction carried out on the plot by the defendant no.1, was filed for the first time in the suit for damages pending between the parties and it is only then the plaintiff was able to have the first look at the site plan. The plaintiff noticed CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 10 of 27 from site plan and the construction carried out in the adjoining plot that it was a mirror image of the sanctioned plan that was constructed.
26. It is argued that the property of the plaintiff was constructed 50 years back and the right wall of the plot of the plaintiff's property was at an obtuse angle as per the sanctioned plan. The left wall of defendant no.1 adjoining to the plot of the plaintiff is shown to be at right angle in the sanctioned plan, which is not possible. It is evident that the encroachment has been made on the property of the plaintiff while constructing the wall by defendant no.1. Defendant no.1 has chipped into the boundary wall of the plaintiff to the extent of 5 inches to 7 inches along the length of the plot and RCC columns have been constructed into the chipped wall of the plaintiff. This has led to the weakening of the structure and foundation of the property of the plaintiff for which he had to get retrofitting.??? The plaintiff became aware of this encroachment only after the construction was completed and the sheets were removed. He could not have possibly claimed the relief in respect of encroachment into his property in his earlier suit for damages. The bar of Order 2 Rule 2 CPC is therefore, not applicable to the present case.
27. It is further argued that SDMC (defendant no.3) had filed the status report on 22.11.2017. It is quite evident that wall of the defendant has not been raised in accordance with the sanctioned plan. The plaintiff has also proved the report of PW2 Arvind Bhatnagar, Architect, Ex.PW1/9 which also corroborates CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 11 of 27 that there is an encroachment into the wall of the plaintiff. It is submitted that the the plaintiff has been proved the encroachment into boundary wall of and the defendant be directed to remove the encroachment into wall of the plaintiff.
28. Learned counsel for defendant no.1 has argued that the only document which is the basis of proving encroachment into wall of the plaintiff is the report Ex.PW1/9 of PW2 Arvind Bhardwaj, the Architect. It is evident from the bare perusal of this report that the Architect has not visited the site or taken photographs himself but has prepared his report while sitting in his office on the basis of sanctioned plan and photographs provided to him by the plaintiff. No actual measurements have been taken by him on the site. The Report of SDMC also establishes that there is no encroachment in any part of the property of the plaintiff. Rather it establishes that plaintiff has encroached upon the government land on the front side. It is further argued that the photographs, on which reliance has been placed, have not been proved in accordance with law. There is no evidence proving the encroachment on the property of the plaintiff and the suit of the plaintiff is liable to be dismissed.
29. Learned counsel for defendant no.2 has argued that the plaintiff has placed on record his site plan, Ex.PW1/7 wherein front is shown to be 12.8 mtr. However, this site plan is not verified by MCD. The report of MCD shows that the frontage to be 14.65 mtr. Furthermore, Completion Certificate has been duly issued after the inspection establishing that the construction CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 12 of 27 has been raised as per the sanctioned plan and there is no encroachment into property of the plaintiff. On the other hand, the plaintiff has not placed on record his Completion Certificate.
30. It is further argued that the plaintiff had earlier filed a suit for injunction against the defendant but withdrew the same unconditionally; certified copy of the order is Ex.D2W1/4. In view of this unconditional withdrawal, the plaintiff's suit is barred under Order 2 Rule 2 CPC. Furthermore, defendant no.2 is only a Builder and is not a necessary and proper party to this suit. Furthermore, no objection was taken by the plaintiff when the plinth/foundation was laid. Report of the Architect is not only motivated as he is known to the plaintiff but his Report is also not reliable. The photographs Ex.PW1/2 to Ex.PW1/6 have also not been proved as PW1 Atika Chona has admitted in her cross examination that she was not aware as to who had taken the pictures. It is argued that the suit of the plaintiff is liable to be dismissed.
31. Ld. Counsel for defendant No.3 SDMC argued that they have filed their Inspection Report in respect of the two properties giving the actual measurements of the two properties as they exist on the site.
32. I have heard the arguments of learned counsel for the parties and perused the evidence recorded therein. My issue- wise findings are as under:
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 13 of 27FINDINGS ON ISSUE NO.1 Whether the suit is barred by the provisions under Order II Rule 2 CPC?
33. A preliminary objection has been taken on behalf of the defendants that the plaintiff has already filed a suit for damages caused to his premises on account of construction carried out by the defendant in the adjoining plot bearing No.C-
548. It is submitted that the relief claimed in the present suit could have been claimed in the earlier suit and therefore, the present suit on the same cause of action is barred under Order 2 Rule 2 CPC.
34. Order 2 Rule 2 CPC reads as under :
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation: ...
35. It is evident from this Section that the earlier suit filed by the plaintiff was in respect of damages caused due to the digging in the adjoining plot by the plaintiff by the defendant for CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 14 of 27 construction leading to weakening of the foundation of the house of the plaintiff for which retrofitting had to be carried out. During the pendency of the suit, as the construction in the adjoining plot was nearing completion the cement sheets which had been erected around, were removed. According to the plaintiff, the interiors of the plot of the defendant were not visible because of erected sheets and it is only when the sheets were removed that the plaintiff realized that the defendants had chipped its outer wall by 5 to 7 inches along its entire length alongside the property of the defendant no.1and had constructed its own RCC pillars by encroaching into the property of the plaintiff.
36. It is quite evident from the averments made in the plaint that the encroachment into the property of the plaintiff was noticed subsequently and this cause did not exist at the time of institution of the earlier suit. The record shows that an application under Order 39 Rule 1 & 2 CPC dated 05.03.2016 was filed by the plaintiff in regard to this alleged encroachment in the earlier Suit but the same was withdrawn as it was a new cause of action that had arisen during the pendency of the suit. The plaintiff had an option of either amending the suit or to file a fresh suit on this new cause of action which has arisen subsequently.
37. Order 2 rule 2 CPC bars only such reliefs which were already available at the time of filing of the earlier suit and not in regard to the cause of action which may arise subsequently. In the present case, the alleged encroachment by erection of the CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 15 of 27 pillars had been done subsequently which came to the knowledge of the plaintiff during the pendency of the earlier case. The bar of Order 2 Rule 2 CPC is therefore, not attracted.
Issue no.1 is decided in favour of the plaintiff and against the defendants.
FINDINGS ON ISSUE NO.2 -
Whether defendants have carried out illegal encroachment and construction in the suit property?
38. It is an admitted position that house of the plaintiff bearing No.C-549 and the house of defendant no.1 bearing No.C- 548 are on adjoining plots. It is further not in dispute that in the year 2015, defendants started reconstruction of the building on his plot by demolishing the earlier existing structure. It is also not in dispute that the plaintiff was aggrieved by the damage allegedly caused to his premises on account of use of JCB and construction being carried out by defendant no.1 in his plot for which he filed a separate suit for damages. The plaintiff has claimed that on completion of construction in plot No.C-548, the screens which had been erected around the plot, were removed and the plaintiff noticed that the exterior wall of the plaintiff which was common with the plot of defendant no.1, had been chipped all throughout its length from 5 inches to 7 inches and the defendant had constructed his RCC columns into the boundary wall of the plaintiff.
39. It was further explained that the plaintiff had raised construction in his plot about 50 years back when the CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 16 of 27 construction technique involved raising of the building on load bearing walls. The exterior wall of the plaintiff was the load bearing wall and by chipping and reducing his thickness, the foundation of the wall structure was weakened on account of which he had to get the retrofitting done.
40. Before adverting to the evidence led by the parties, it would be appropriate to first refer to the assertions made in the plaint. Para 17 of the plaint in regard to encroachment which reads as under:
"17. That it is pertinent to mention here, that when screens were removed from the plaintiffs side, it was noted that the defendants (C548) had demolished half of the exterior wall of C549 (plaintiff) by atleast six inches thick portion all along the length between C548 and C549, which is in the area of the plaintiff as shown in the photographs no.1 and 2 annexed herewith."
41. The submissions made are that the plaintiff noticed that half of the exterior wall was chipped to the extent of "atleast six inches" into the wall of the plaintiff. There is no specific scientific or objective parameter or any measurement to establish the alleged encroachment but was based on physical observation of the plaintiff and that too in the nature of a guess.
42. It is further mentioned in paragraph 18 of the plaint that plaintiff immediately brought this fact to the knowledge of defendants no.2 and 3 and Mr. Balbir Singh who is the representative of defendants no.2 and 3 measured the wall and CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 17 of 27 found the version of the plaintiff to be correct. Though these submissions have been made in the plaint but there is neither any date given nor any cogent evidence led to prove that the site was measured and it was noted that there was chipping of the wall of the plaintiff. Sh. Balbir Singh becomes the most relevant witness and also the measurement taken by him becomes the most relevant piece of evidence. However, neither Sh. Balbir Singh appeared as a witness nor the alleged measurement taken by him in support of the claim of the plaintiff, has been placed on record. The best evidence was the testimony of Sh. Balbir Singh and the measurements taken by him. Sadly, the measurements have not found place on the judicial record creating a doubt if any such measurement was ever taken by Balbir Singh as claimed.
43. The principal witness examined by the plaintiff is PW1 Atika Chona, daughter of the plaintiff who has deposed that she is unmarried and has been residing with the plaintiff/her father since 2010 and continued to reside with him during the period from 2014 to 2016 and is aware of the facts in hand. She has deposed that the common boundary wall between her plot and the plot no.C-548 has been chipped from 5 inches to 7 inches and RCC columns have been built into their wall. As already mentioned above, her claim rests largely on her subjective conclusions drawn from her visual observations. She has drawn support for her assertion from photographs Ex.PW1/2 to Ex.PW1/6, which had been taken by her from her mobile phone and is supported by the certificate under section 65B of Indian Evidence Act, Ex.PW1/Y. CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 18 of 27
44. The defendants in the cross examination had challenged the authenticity and veracity of photographs and had suggested that they were not according to the site. Defendant no.2 confronted PW1 in the cross examination with the photographs Ex.PW1/D-2/X-1 to Ex.PW1/D-2/X-5, the original photographs of which were filed by the plaintiff in civil case No.9363/16 which were admitted by PW1. Photograph Ex.PW1/D-2/X1 pertains to the stage of excavation being carried out in plot No.C-548. From these photographs what is clearly visible is that the wall of the house of the defendant was separate though adjoining to the wall of the house of the plaintiff. What is evident from this photograph is that both the plot of plaintiff and of defendant no.1 had two separate adjoining walls marking their respective plots. Ex.PW1/D-2/X-2 and Ex.PW1/D-2/X-5 again shows a reinforced wall being constructed on the plot of defendant no.1. The PW-1 in her cross examination has admitted that a separate wall was being constructed in the plot of defendant.
45. The similar situation is depicted in the photograph Ex.PW1/D-2/X-1 which also mentions that there were two separate walls of the two building. This fact is further reinforced by the photograph Ex.PW1/3 on which reliance has been placed by PW1 herself. The thickness of the wall which is visible makes it apparent that these are two parallel walls of 12 inches each which are adjoining to each other.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 19 of 2746. The plaintiff has relied upon the photographs Ex.PW1/2 to Ex.PW1/6. They have been taken from outside and do not establish anything. They have been taken from an angle and do not conclusively establish that it is the wall of the plaintiff that has been chipped. Rather from photograph Ex.PW1/2 and Ex.PW1/3, it apparently seems that 6 inches wall that has been chipped is that of defendant no.1 in which the RCC pillars have been built by the defendant no.1.
47. The best evidence to prove that there was an actual encroachment into the wall of the plaintiff was to prove the exact measurement of the wall. The next piece of evidence relied upon by the plaintiff is the report of PW2 Arvind Bhatnagar who gave his inspection report dated 29.02.2016, Ex.PW1/9 (Ex.PW1/D2/X8), wherein also it has been observed that there was chipping of the wall of the property of the plaintiff encroached upon by the defendants. The first significant thing which emerges is his admission in the cross examination by defendant no.3 (SDMC) that he did not take the measurement of the property No.C-548 i.e. adjoining property as he was not allowed to enter the premises. He has deposed that he took the measurement only of property of the plaintiff. He has further admitted in his cross examination that he had visited the property No.C-548 personally but had not taken any measurement for the purpose of preparing his Report.
48. PW2 Arvind Bhatnagar has further admitted in his cross examination that the sketch of plot at C-548 as shown in picture no.2 of his report Ex.PW1/9 is as per his own assumption CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 20 of 27 and drawing of C-548 as provided to him by the plaintiff Prem Chona.
49. It may further be noted that a suggestion was given to PW2 Arvind Bhardwaj that the photographs referred to in his Report dated 29.02.2016 were not taken by him or that the same had been provided to him by the plaintiff. He denied that the photographs had been supplied to him by the plaintiff. The bare perusal of the report dated 29.02.2016, Ex.PW1/9 shows that the print of the photographs has been annexed on one page forming part of the report. One of the photograph (picture No.1) is identical to photograph Ex.PW1/2 that was taken by the plaintiff. Though, the prints of other two photographs have been attached with the Report but the said three pictures do not establish encroachment into the wall of the plaintiff as they have been taken from outside and do not prove anything. In this context, it would also be relevant to observe that it is only a printout of four photographs that has been attached by the Architect but he has failed to file the actual printout or to prove that these have been taken by him. Also no Certificate under section 65B of Indian Evidence Act to establish the authenticity and to prove these photographs has been filed along with the report. The four photographs relied upon by PW2 Arvind Bhatnagar do not support his conclusion that there was an encroachment by 5 inches to 7 inches into the wall of the plaintiff.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 21 of 2750. A specific question was put to him about how he came to the conclusion that 6 inches of exterior wall of plot of the plaintiff had been demolished along with the entire length. He responded by deposing that originally this wall was 12 inches wide, he later noticed that columns have been constructed inside part of load bearing wall of the house of the plaintiff. This reinforcement wall was visible from the terrace of the house of the plaintiff. He further deposed that it can only be said that approximately 6 inches has been demolished and at some place it can be 7 inches while at other places it might be 5 inches.
51. It is quite evident from the testimony of PW-2 Arvind Bhatnagar that his conclusion of there being encroachment into the wall of the building of the plaintiff is purely based upon what was apparently visible from the outside the House no.C-548 and also is conjectural. The photographs on which reliance has been placed by him in his report do not support his conclusion. His own admission that he never took the measurement finally clinches the issue of his Report being of no value to support the case of the plaintiff.
52. It is further deposed by PW-1 Ankita Chona that pursuant to the directions of this Court dated 11.02.2016, the plaintiff and defendant no.1 filed their respective sanctioned plan which are Ex.PW1/7 and Ex.PW1/8. According to these sanctioned plans, it the size of the plot ot the plaintiff was 12.65 mtrs. from the front while it was 14.85 mtrs. from behind while the size of the plot of C-548 is 14.63 mtrs. from the front and CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 22 of 27 17.37 mtrs. from behind. The comparison of the two sanctioned plans show that the lower right corner of plot of the plaintiff is an obtuse angle. Since plot No.C-548 was the adjoining plot, the wall adjoining to the plaintiff's plot should have been at an acute angle but in the sanctioned plan it has been shown as a right angle. Furthermore, if the two site plans are kept adjacent to each other, there should have been a 7 feet void between the two plots but admittedly it does not exist physically. This also shows that the construction on the defendant's plot has not been carried out in accordance with the sanctioned plan. This again reinforces that there has been encroachment made into the plot of the plaintiff.
53. First and foremost, it is admitted by PW2 that there has been no void of 7 feet between the two plots. Likewise, as admitted in his cross examination that the one side of the house of the plaintiff is alongside to house no.C-549 belonging to the plaintiff and that the wall is common between the two houses. It is quite clearly borne out from the sanctioned plans and the size of the plots that plot number C-549 of the plaintiff was narrower from front while the plot of defendant no.1 was wider from the front. It is also evident from the report of SDMC according to which plot No.C-548 was found to have a frontage dimension of 14.55 meter and the rear dimension of 17.37 meter. The property bearing No.C-549 of plaintiff has frontage dimension of 14.65 meter and the rear dimension of 14.85 meter, which is as per the sanctioned building plan. The Report of SDMC establishes that there is no encroachment done by the defendants into the wall of the house of the plaintiff.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 23 of 2754. It is apparent from the sanctioned plans that though there should have been a void of about 7 feet between the two plots implying that there would be "no man's land" allotted neither to C-548 or C-549 but both have straightened the wall and constructed alongside side each other and this is the only explanation as to why there no longer exists a void between the two plots. There is no encroachment by either the plaintiff or the defendant into the plot by either party but both have straightened the wall by extending it into the void space. Admittedly this has been so when the plots were so constructed about 50 years back as admittedly no void exists between the two plots. This also explains why the angle of the wall of the plaintiff and defendant no.1 is almost at right angle in both the plots. In the light of the admissions made and the report of SDMC coupled with admitted dimensions of the plots, it is proved that no encroachment has been made by defendant no.1 into the plot of the plaintiff.
55. It would not be out of place to mention here that defendant no.3 has examined DW3 Raman Lal Sharma who has proved the Occupancy Certificate Ex.DW3/4. There is no finding by the SDMC that any encroachment has been made into the property of the plaintiff. The SDMC report dated 22.11.2017 also does not mention of encroachment by the defendant though it specifies that front road has been encroached by the plaintiff. The plaintiff has not been able to prove any encroachment by the defendants into any part of his property.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 24 of 2756. The third aspect agitated by the plaintiff was that this boundary wall adjoining to the wall of the defendant was load bearing and because of chipping and reduction in its width, it has led to weakening of the building as well as of the foundation and the plaintiff had to get the retrofitting done. PW1 in her testimony has led no evidence whatsoever in regard to the alleged retrofitting that was carried out by the plaintiff for the claimed reasons. PW2 Arvind Bhatnagar in his cross examination has explained that the destruction of exterior boundary wall would not weaken the structure of the main building. Furthermore, PW2 has admitted that as per his report, Ex.PW1/9 the damage to the structure at the premises of plaintiff was due to the excavation work done in the adjoining plot. He has further deposed that he was not present when the retrofitting of the foundation was done. No evidence whatsoever has been led by the plaintiff that because of the encroachment into the wall of the house of the plaintiff, there has been weakening of the structure requiring retrofitting of the foundation to be done.
57. The onus was on the plaintiff to have proved that there was chipping of 6 inches of boundary wall done by the defendant no.1 and RCC pillars were constructed in the wall. However, as discussed above, the plaintiff has not been able to prove through any cogent evidence that his wall has been chipped or encroachment into his boundary wall has been made.
Issue no.2 is therefore decided against the plaintiff and in favour of the defendants.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 25 of 27FINDINGS ON ISSUE NO.3 -
Whether plaintiff is entitled to mandatory injunction as prayed?
58. The plaintiff by way of mandatory injunction has sought directions to be issued to the defendant for removal of illegal encroachment in the dividing wall of the property of the plaintiff. However, in view of the findings on issue no.2 that there was no encroachment, no mandatory injunction can be awarded in favour of the plaintiff.
59. The plaintiff has also sought directions to be issued to defendant no.3 (SDMC) to verify whether the property No.C- 548 of the defendant has been constructed as per approved sanctioned plan. The defendant no.3 has submitted a report dated 22.11.2017 wherein it has not been mentioned that the construction is in accordance with the sanctioned plan. Furthermore, the occupancy certificate dated 18.05.2016, Ex.DW3/4 could have been given only after the inspection and on finding that there was no construction carried out beyond sanctioned plan, the completion certificate, Ex.DW3/2 was issued. There is no evidence to prove that construction by defendant no.1 has not been carried out in accordance with the approved sanctioned plan.
Issue no.3 is therefore decided against the plaintiff and in favour of the defendants.
CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 26 of 27FINDINGS ON ISSUE NO.4 -
Whether plaintiff is entitled to permanent injunction as prayed?
60. The plaintiff has sought permanent injunction for restraining the defendants from raising further construction in the adjoining wall. However, it is admitted that the construction had already been completed and completion certificate, Ex.DW3/2 has already been issued. Since the construction has already been completed, no relief of permanent injunction can be granted as the same has become infructuous.
Relief:
61. In view of the findings on Issues No.2, 3 and 4, the suit of the plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared.
62. File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court today on 09.12.2021 Principal District & Sessions Judge, South East, Saket Courts New Delhi CS DJ No.9701/16 Prem Chona Vs. Kanwaljit Singh & Ors. Page 27 of 27