Delhi District Court
Vijay Pal vs Gul Mohammad on 23 December, 2023
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IN THE COURT OF SH. RAKESH KUMAR-II JSCC/ASCJ-GUDN
JUDGE NORTH ROHINI COURTS: DELHI
CS SCJ NO. 718/2018
CNR NO. DLNT030012882018
1. Vijay Pal
S/o Sh Gayadin
R/O E-155, Shahbad Daulatpur,
Delhi.
2. Savitri
W/O Vijay Pal
S/o Sh Gayadin
R/O E-155, Shahbad Daulatpur
Delhi-110042.
......... PLAINTIFFS.
VERSUS
1. Gul Mohammad
R/o H. No. 16, Block -29,
J.J colony, Shahbad Daulatpur,
Delhi.
2. Devnath Chauhan
R/o H. No. 19, Block -29,
J.J colony, Shahbad Daulatpur,
Delhi. ...... DEFENDANTS.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 1
Date of Institution : 06.06.2018
Date of Order/Judgment : 23.12.2023
JUDGMENT
1. Vide this judgment, I proceed to dispose of the suit filed on behalf of Plaintiffs for declaration, permanent as well as Mandatory injunction against the defendants.
PLAINT
2. As per averments of the plaint, the brief facts are that the plaintiff is owner of plot no. 17, Block C-29, Shahbad Dairy, Delhi. The area measuring 12.5 square yards allotted by Slum and J.J Department M.C.D/D.D.A presently known as Delhi Urban Shelter Improvement Board and The plaintiff no.2 is owner of plot no. 18, Block- 29, Shahbad Dairy, Delhi area admeasuring 12.5 square yards allotted by slum and J.J Department M.C.D/ D.D.A presently known as Delhi Urban Shelter Improvement Board. Both plots are adjoining to each other. It is further averred that in back side of the plots of the plaintiffs there are adjoining plots no. 16 and 19 which belong to the defendants. Defendants no.1 Gul Mohammad is the owner of plot no. 16, Block C-29, Shahbad Dairy, Delhi area admeasuring 12.5 square yards allotted by Slum and J.J Department M.C.D/ D.D.A presently known as Delhi Urban Shelter Improvement Board. by Slum and J.J Department M.C.D/ D.D.A presently known as Delhi Urban Shelter Improvement Board. It is further averred that the gates of all four houses of plaintiffs and defendants were opened into a common Porch (khancha) 9 x 9 feet area and Porch directly connected to the Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 2 gali provided by the department. It is further averred that the plaintiff had opened the gates of their respected houses no. 17 and 18 on back side road have been using these houses for sweet shop. The defendants have closed upon the land of common Porch. The porch is opened to the gali of the colony provided by the department. It is further averred that the respective position of houses of plaintiff and defendants and common Porch and respective gates and encroachment by the defendants are clearly shown in site plan. It is further averred that the defendant no.1 has closed the main gate and window of the house of the plaintiff no.2 and infringed the right of easement of light, Air, Ventilation, Use of common Porch and way to street of the plaintiff no. 2 and the defendant no.2 has closed the main window of the house of the plaintiff no.2 and constructed the wall upon the main entrance of the house of the plaintiff no.2 and left 2' feet wide street for the entrance for both plaintiffs houses and infringed the right of Easement of light, Air, Ventilation, Use of common Porch and way to street and constructed three storey building. It is further averred that the defendant no.1 constructed three storey building in very short period and construction work have been carrying on day and night since 8 to 9 months. The plaintiff requested to the defendants several times to restrain the encroachment from Porch but they have deaf ears and did not listen the request of the plaintiff and carrying on the work in night. It is further averred that the plaintiff have been opened the doors of their houses on the road that is not legally allowed but for their livelihood they are carrying on their sweet shop but it is apprehension to them that Municipal Authority can seal their shop at any time without notice to them. So it is very necessary to remove the encroachment of the defendants for the common Porch to excess the plaintiff to their houses hence this suit.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 3PRAYER
3. On the basis of averment made in the plaint, plaintiff sought following reliefs from the court.
A. Declaration:- Declaring that defendants have encroached upon the land of common porch connecting among the respected houses of ,plaintiff and defendants house no. 17, 18 16,19 pocket C- 29, J.J colony, Shahbad, Dairy Delhi as shown in red in site plan plot allotted by Slum and J.J Department presently known as Delhi Urban Shelter improvement board infringing the easement right of light, Air, Ventilation, passage to the house of the plaintiff for which plaintiff are legally entitled to get remove this encroachment there from as shown in site plan in green.
B. Mandatory Injection:- Directing the defendants to remove the encroachment from the land of common Porch shown in red in site plain attached. Among the respective houses of the plaintiffs and defendants house no. 17,18,16 and 19 pocket C- 29 J.J Colony, Shahbad Dairy Delhi.
C. Permanent Injection :- Restraining the Defendants from creating any encroachment upon the land of common porch shown in red site plan attached, among the respective houses of plaintiffs and defendants the house no. 17,18,16 and 19 pocket C-29, J.J Colony, Shahbad Dairy, Delhi in manner to deprive the plaintiffs from their easementary right of light, Air, Ventilation and way/Passage to street.
WRITTEN STATEMENT FILED BY DEFENDANT NO. 1.
4. It is relevant to note that Defendant no 2 was declared Ex. Parte on 16.10.2018. WS was filed by defendant no 1. In defense, defendant no. 1 Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 4 submitted that the present suit is false, frivolous and baseless, therefore the present suit is liable to be dismissed. It is further submitted that the plaintiffs have claimed for the equitable relief of permanent and mandatory injunction and declaration in the suit by concealing present the material facts from this Hon'ble Court, therefore the suit is liable to be dismissed. It is further submitted that the suit filed by the plaintiffs is not maintainable and also liable to be rejected under Order 7 Rule 11 of C.P.C. because the suit is filed by the plaintiffs, who are not the real owners of property for which the relief is claimed in the present suit by the plaintiffs. It is further submitted that 8. That the plaintiffs are not the actual owner of the suit properties and the plaintiff No.1 has purchased the plot No.17, Block C-29, Shahbad Dairy, Delhi from Joginder S/o Sh. Uday Singh R/o 375, Gaon Main Lambi Gali, Shahbad Daulatpur Village, Delhi-110042, but the actual allottee / owner of the said property bearing No.C-29/17 is Moti Lal S/o Sh. Sarju and the plaintiff No.2 has also purchased the plot No. 18, C-29, Shahabd Dairy, Delhi from Sh. Ram Rattan S/o Sh. Jeewan Lal R/o 10/33, Shahbad Dairy, Delhi-110042, but the actual allottee / owner of the said property bearing No. C-29/18 is Phool Chand S/o Jagdish. It is pertinent to mention here that as per terms and conditions of the Slum & J.J. Department (M.C.D.) / D.D.A. and Delhi Urban Shelter Improvement Board (DUSIB) are that properties are not transferable to any other person in any terms and conditions. Hence, the present suit is liable to be dismissed with heavy cost.
ISSUES
5. Vide order dated 16.10.2018, the following issues were framed:
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 5Issue no.1 Whether the plaintiff is entitled to the decree of declaration in his favour and against the defendants, as prayed for? OPP Issue no.2 Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendants, as prayed for?OPP Issue no.3 Whether the plaintiff is entitled to the decree of permanent injunction in his favour and against the defendants, as prayed for?OPP Issue no.4 Whether the site plan filed by the plaintiff in respect of the suit property is false and fabricated document? OPD Issue no.5 Whether the plaintiff has locus standi to file the present suit? OPD1 Issue no.6 Whether the suit property is not transferable as per the terms and conditions of the Slum & J.J. Department (M.C.D.) /D.D.A. and DUSIB as it effects the right on the parties?OPD1 Issue no.7: Relief EVIDENCE
6. To prove its case, the plaintiff examined himself as PW-1.
7. Plaintiff examined himself as PW-1, who tender his evidence by way of affidavit Ex. PW 1/A and relied on following documents:-
1. Site plan is Ex.PW1/1.
2. Copy of receipt of Municipal Corporation of Delhi dt. 13.11.1997 is Ex.PW1/2 (OSR).
3. Copy of allotment letter dt. 13.11.997 is Ex.PW1/3 (OSR).Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 6
4. Copy of affidavit of Moti Lal mentioned as Ex.PW1/4 and now the same be read as Mark A.
5. Copy of receipt of Municipal Corporation of Delhi dt. 13.01.1998 is Ex.PW1/5 (OSR).
6. Copy of allotment letter dt. 30.03.1998 in the name of Phool Chand is Ex.PW1/6 (OSR).
7. Copy of letter dt. 05.11.1997 is Ex.PW1/7 (OSR).
8. Copy of letter dt. 01.05.1998 is Ex.PW1/8 (OSR).
9. The four original photo of the suit property are Ex.PW1/9 (colly).
10. Copy of GPA dt. 13.10.2004 in favour of Savitri dt. 01.12.2004 is Ex.
PW1/0 (OSR) (running into four pages).
11. Copy of Will dt. 13.10.2004 in favour of Savitri is Ex.PW1/11 (OSR).
12. Copy of GPA dt. 01.12.2010 is Ex. PW1/12 (OSR).
13. Copy of agreement to sell dt. 01.12.2010 is Ex.PW1/13 (OSR) (running into three pages).
14. Copy of affidavit dt. 01.12.2010 is Ex. PW1/14 (OSR).
15. Copy of receipt of Rs.1,00,000/- is Ex.PW1/15 (OSR).
16. Copy of possession letter dt. 01.12.2010 is Ex.PW1/16 (OSR)
8. No defence has been led by the defendant no. 1.
9. This Court has heard the arguments, advanced on behalf of both the parties and also gone through the evidence on record.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 7ANALYSIS AND FINDINGS OF THE COURT
10. Issue wise findings of the court are as follow:-
Issue no.1 Whether plaintiffs are entitled to the decree of declaration in their favour and against the defendants, as prayed for? OPP The onus to prove above issue no 1 is on plaintiffs. In the case in hand plaintiff no 1 and 2 are husband and wife. It is claimed by plaintiffs that defendants have encroached upon the land of common porch connecting among the respected houses of plaintiff and defendants bearing house no. 17, 18 16,19 pocket C- 29, J.J colony, Shahbad, Dairy Delhi as shown in red in site plan plot allotted by Slum and J.J Department presently known as Delhi Urban Shelter improvement board infringing the easement right of light, Air, Ventilation, passage to the house of the plaintiff for which plaintiff are legally entitled to get remove this encroachment therefrom as shown in site plan in green. The site plan filed by plaintiff vide Ex. PW1/1 perused.
It is the case of plaintiffs that plaintiff no. 1 is owner of plot no 17, pocket C- 29, J.J colony, Shahbad, Dairy Delhi and plaintiff no 2 is the owner of plot no 18 ,pocket C- 29, J.J colony, Shahbad, Dairy Delhi. Plaintiffs further claimed that in back side of the plaintiff plot there are adjoining plot no 16 and 19 belonging to defendants. Defendant no 1 is the owner of plot no 16 and defendant no 2 is the owner of plot no 19.
It is also clear from material on record that the property of plaintiff as well as defendants were allotted by slum and JJ department/ DUSIB. It is claimed by plaintiff that gates of all four houses of the Plaintiffs and Defendant were opened into a common porch (Khancha) 9X9 feet area and Porch directly Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 8 connected to the gali provided by the department. It is further claimed that the Defendants have encroached upon the land of common porch. It is further claimed by the plaintiffs that the Defendant no.1 has closed the main gate and window of the house of the Plaintiff no.2 and infringed the right of easement of light, Air,Ventilation, use of common porch and way to street of the Plaintiff no.2 and the Defendant no.2 has closed the main window of the house of the Plaintiff no.2 and constructed the wall upon the main entrance of the house of the Plaintiff and left 2 feet wide street for the entrance for Plaintiffs houses and infringed the right of easement of light, Air, Ventilation, Use of common porch and way to street and constructed three storied building.
In the case in hand admittedly plaintiffs were not the original allotee of the property bearing plot no. 29/17 and 29/18. Documents filed by the plaintiffs show that above said property no. 29/17 was allotted to Moti Lal and property bearing no. 29/18 was allotted to Phool Chand. Perusal of material on record shows that plaintiff no. 1 has purchased the property from Joginder through customary document like GPA, Agreement to sale, Will etc but actual allottee of suit property was Moti Lal who was allotted suit property by slum and JJ department. Perusal of material on record shows that plaintiff no 2 has purchased the property from Ram ratan through customary document like GPA, Agreement to sale, Will etc but actual allottee of suit property was Phool Chand who was allotted suit property by slum and JJ department. In the case in hand plaintiffs have claimed that the defendant have encroached the area of common porch. It is further claimed by the plaintiffs that easementary right of light, Air, ventilation, use of common porch and way to the street was infringed by defendants as defendants have encroached the area of common porch.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 9In the case in hand plaintiffs have claimed that their easementary right of light, Air, ventilation, use of common porch and way to the street have been infringed however plaintiffs have not filed any documentary evidence or any material on record to show since when plaintiffs have been using the easementary right of light, Air, ventilation, use of common porch and way to the street as a matter of right against the defendants. It is also relevant to note that no certified or approved site plan or layout of the colony issued by slum and JJ department/DUSIB was filed by the plaintiffs to show that there was a common porch of 9 x 9 feet and above porch was directly connect to street provide by the slum and J.J. department when property was initially allotted to the concerned allottee.
In the case in hand, admittedly, Plaintiffs were not the allottee of the suit property. In the case hand plaintiffs have filed the site plan Ex.PW1/1 however plaintiffs have not filed any layout of the colony or certified site plan of the colony which was approved by the slum and JJ department at the time of allotment to the concerned allottee. Plaintiffs have even not examined the original allotee to prove the fact that there was a common porch connecting to Gali at the time of allotment of the property by slum and JJ department. Considering the fact that plaintiffs were not the original allottee and there is nothing on record to show that slum and JJ department has marked the area shown in the site plan Ex. PW1/1 as a common porch area, connecting to the Gali, court is of view that on the scale of preponderance of probability, plaintiffs remains failed to prove that there was a common porch area demarcated by slum and JJ department and thus defendants have encroached the land of the common porch connecting the respective houses of plaintiffs.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 10In view of the above discussion issue no. 1 is decided against the plaintiffs and in favor of the defendants as Plaintiffs remained failed to prove that there was a common porch area demarcated by slum and J.J. Department and Plaintiffs had right over any area demarcated as common porch area.
11. Issue no.2 Whether the plaintiffs are entitled to the decree of mandatory injunction in their favour and against the defendants, as prayed for?OPP The onus to prove above issue is on plaintiffs.
Plaintiffs have sought mandatory injunction directing the defendants to remove the encroachment from the land of common Porch shown in red in site plain attached among the respective houses of the plaintiffs and defendants house no. 17,18,16 and 19 pocket C- 29 J.J Colony, Shahbad Dairy Delhi.
Keeping in view the finding on issue no 1 that plaintiffs were unable to prove that there was a common porch demarcated by the slum and JJ department at the time of allotment of property, plaintiffs remain failed to prove that there was encroachment by the defendants on the common porch shown in red in site plan Ex. PW1/1 therefore issue no 2 is decided against the plaintiffs and in favor of the defendants.
12. Issue no. 3 Whether the plaintiffs are entitled to the decree of permanent injunction in his favour and against the defendants, as prayed for?OPP The onus to prove above issue is on plaintiffs.
Plaintiffs have sought permanent injunction thereby restraining the Defendants from creating any encroachment upon the land of common porch shown in red site plan attached, among the respective houses of plaintiffs and defendants bearing the house no. 17,18,16 and 19 pocket C-29, J.J Colony, Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 11 Shahbad Dairy, Delhi to deprive the plaintiffs from their easementary right of light, Air, Ventilation and way/Passage to street.
Keeping in view the finding on issue no 1 that plaintiffs were unable to prove that there was a common porch demarcated by the slum and JJ department at the time of allotment of property, plaintiffs remain failed to prove that there was encroachment by the defendants on the common porch shown in red in site plan Ex. PW1/1 therefore issue no 3 is decided against the plaintiffs and in favor of the defendants.
13. Issue no.4 Whether the site plan filed by the plaintiffs in respect of the suit property is false and fabricated document? OPD1 The onus to prove above issue is on Defendants. However, Defendants have not led any evidence to show that the site plan filed by Plaintiffs in respect of suit property is false and fabricated. There is nothing material on record to show that the site plan filed by Plaintiffs in respect of suit property is false and fabricated. Therefore, issue no. 4 is decided against Defendants.
14. Issue no.5 Whether the plaintiffs have locus standi to file the present suit? OPD1 The onus to prove above issue is on Defendants. However, Defendants have not led any evidence to show that the Plaintiffs have no locus standi to file the present case. Beside vague suggestion during cross examination, Defendants have neither filed any material on record nor led any evidence to show that Plaintiffs have no locus standi to file the present case. Therefore, issue no. 5 is decided against Defendants.
Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 1215. Issue no.6 Whether the suit property is not transferable as per the terms and conditions of the Slum & J.J. Department (M.C.D.) /D.D.A. and DUSIB as it effects the right of the parties?OPD1 The onus to prove above issue is on Defendants. However, Defendants have not led any evidence to show that suit property is not transferable as per the terms and conditions of the Slum & J.J. Department (M.C.D.) /D.D.A. and DUSIB as it effects the right of the parties. It is relevant to note that Plaintiff no. 1 had denied the suggestion put on behalf of Defendant no. 1 during cross examination that allottee was not entitled to sale or transfer the abovesaid plot to Plaintiffs. During cross examination, Defendant no.1 had shown clause 4 of document Mark A to Plaintiffs, however, besides showing above document Mark A, Defendants have neither proved above document mark A nor led any evidence to show that suit property purchased by Plaintiffs is not transferable. It is relevant to note that Defendants have neither filed any material on record nor led any evidence to show that suit property purchased by Plaintiffs were not transferable. Therefore, issue no.6 is decided against Defendants.
16. In view of above discussion particularly keeping in view finding on issue no 1, 2 and 3 suit filed by the plaintiff stands dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the Open Court on the day of 23rd December 2023 (Rakesh Kumar-II) JSCC/ASCJ/Gudn. Judge North, Rohini Courts, Delhi/23.12.2023 Vijay Pal & Ors. Vs. Gul Mohammad & Ors. 13