Delhi District Court
Kamal Chand vs . Ashok Kumar on 20 May, 2019
Suit No. 58801/16
Kamal Chand Vs. Ashok Kumar
Date of Decision: 20.05.2019
THE COURT OF ADMINISTRATIVE CIVIL JUDGE cum
ADDITIONAL RENT CONTROLLER cum COMMERCIAL CIVIL
JUDGE, NORTHWEST DISTRICT
ROHINI COURTS, DELHI
Presided by: Sh. Sunil Kumar Sharma, DJS.
Suit No: 58801/16
Date of Institution: 11.11.2010
Date of final arguments:17.05.2019
Date of final order:20.05.2019
Final order: Dismissed
Sh. Kamal Chand
S/o Sh. Ram Nath
R/o B9/345, Sector3, Rohini
Delhi.
...Plaintiff
VERSUS
1. Sh. Ashok Kumar
S/o Sh. Sohan Lal
R/o Shop No. 344/3, B9, Sector3
Rohini, Delhi.
Also at:
B9/137138, Sector3, Rohini
Delhi.
2. Smt. Urmila Rani
W/o Sh. Ashok Kumar
R/o 344/3, B9, Sector3, Rohini
Delhi.
Also at:
B9/137138, Sector3
Rohini, Delhi.
...Defendants
Page No. 1/12
Suit No. 58801/16
Kamal Chand Vs. Ashok Kumar
Date of Decision: 20.05.2019
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
PLAINT The brief facts necessary for the disposal of the present case are as under:
1) The present suit has been filed by Sh. Kamal Chand (hereinafter referred as "the plaintiff") against Sh. Ashok Kumar (hereinafter referred as "the defendant") with the prayer to restrain him permanently from opening a gate in the left side of the shop bearing no. 344/3, B9, Sector3, Rohini, Delhi, shown in the site plan (hereinafter referred as "the suit property").
It is stated that the plaintiff and the defendant are respectively residing on their addresses mentioned in the memo of the parties. The defendant is also the owner of the shop no. 344/3, B9, Sector3, Rohini, Delhi. The said shop is actually part of three shops made in a DDA Flat. The aforesaid shop of the defendant is presently lying closed and out of the three shops in the aforesaid flat, only one shop bears the private no. 1 and only the said shop is allowed to run by the MCD. The gate of the defendant's shop is open towards the road, but the defendant wants to open its gate by installing a shutter in his aforesaid shop on the left side of its gate and towards the open space infront of plaintiff's residence i.e. H. No. B9/345, Sector3, Rohini, Delhi. The said open space is used by the plaintiff since the time of purchase of his aforesaid house by him. The defendant is intending to encroach upon the aforesaid open space by opening the gate of his aforesaid shop without obtaining Page No. 2/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 any sanction from the competent authority including MCD etc. The defendant on 08.11.2010 at about 09.00 AM, tried to open the gate and wanted to install a shutter in his aforesaid shop towards the open space lying infront of plaintiff's house leading to the exchange of words between the parties. The defendant could not succeed in his ill design due to intervention of the respectable member of the society. Moreover, the defendant is running his aforesaid shop in illegal manner and consistently extending the threats for opening his gate towards the open space without obtaining any sanction from any competent authority. Thereafter, the defendant on 09.11.2010 again abused the plaintiff for preventing him to install his aforesaid gate/shutter in the aforesaid manner. Defendant's aforesaid act in installing the aforesaid gate/shutter will deprive the plaintiff from the use of the aforesaid open space infront of his house. The aforesaid act of the defendant forced the plaintiff to file the present suit.
SUMMONS
2) The summons for securing the appearance of the defendant were ordered to be issued and the same were duly served upon the defendant. The defendant appeared and filed his written statement.
DEFENCE/WRITTEN STATEMENT OF DEFENDANT NO.1
3) It is stated in the written statement that the defendant has no concern with the suit property as the same is being owned/occupied by his wife Smt. Urmila Rani, but the plaintiff has Page No. 3/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 not impleaded her in the present case. The present suit has been filed on the false grounds, without existence of any cause of action and by concealing the material facts from the Court. The plaintiff has raised a three storey building in unauthorized manner without obtaining any sanction from the competent authority. The defendant is residing in H. No. B9/137138, Sector3, Rohini, Delhi and is not the owner of any shop bearing no. B9/344, Sector3, Rohini, Delhi rather his wife Smt. Urmila Rani is the owner of only one room in property bearing no. B9/344, Sector3, Rohini, Delhi. The defendant has no intention to install any shutter as claimed by the plaintiff. The plaintiff has no independent and exclusive rights to use the open/common space outside property No. B9/345, Sector3, Rohini, Delhi and B9/344, Sector3, Rohini, Delhi. The said space can be used by the occupants of all the adjoining properties. Therefore, the suit of the plaintiff is liable to be dismissed.
DEFENCE/WRITTEN STATEMENT OF DEFENDANT NO. 2
4) It is pertinent to mention here that initially the present suit was filed only against the defendant Sh. Ashok Kumar. However, vide order dated 24.07.2013, Smt. Urmila Rani was also impleaded as the defendant no. 2 in the present case. She appeared and filed her written statement on 07.04.2014 claiming that the plaintiff has filed the present suit on the basis of false apprehensions and without existence of any cause of action by concealing the material facts from this Court. The plaintiff has himself raised illegal/unauthorized Page No. 4/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 construction in the form of three storey building and has also encroached upon the municipal land by raising permanent structure of bricks i.e thada. It is submitted that the defendant no. 2 is not the owner of any shop in property bearing no. B9/344, Sector3, Rohini, Delhi rather she owns only one room in the said property. The defendant no. 1 has not installed any shutter as claimed by the plaintiff, moreover, the said open space infront of plaintiff's house is a common space and can be used by all the adjoining property holders. The plaintiff has no right to claim his exclusive/independent rights over the said open space. The plaintiff has no right to stop anyone to make any opening by way of door or window on their walls according to the municipal bylaws. The defendant has no intention to install any such shutter in the manner as claimed by the plaintiff.
REPLICATION
5) The plaintiff has denied the claim of both the defendants by filing the replications.
ISSUES
6) On the basis of pleadings and material available on record, vide order dated 22.05.2014, the following issues were framed:
i) Whether the plaintiff is entitled to the relief of permanent injunction against the defendant for the suit property, as prayed for?OPP.
ii) Whether the suit of the plaintiff is bad for non joinder of the necessary parties?OPD2.
iii) Whether the suit of the plaintiff is without any cause of action?OPD.
iv) Relief. Page No. 5/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 EVIDENCES: 7) Plaintiff's Evidence: i) To prove his case, the plaintiff has examined himself as
PW1 vide affidavit Ex. PW1/A. He has relied upon the copy of the sale deed dated 28.07.2010, executed by Sh. Purshottam Mishra in favour of Kamal Chand/plaintiff herein and his wife Smt. Shyama Devi and the same was marked as Mark A. Site plan of the suit property, which was exhibited as Ex. PW1/2 and three photographs of the suit property, which were exhibited as Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5 respectively.
ii) The witness/PW1 was duly cross examined at length by the learned counsel for the defendants.
iii) The plaintiff did not examine any other witness, therefore, vide order dated 17.05.2016, the plaintiff's evidence was closed.
8) Defendant's Evidence: i) In support of their claim, the defendants have examined
the defendant no. 1 Smt. Urmila Devi as DW1 vide affidavit Ex. DW1/A. She has relied upon the site plan of the suit property, which was exhibited as Ex. DW1/1. (the said site plan is filed in the connected counter claim bearing CS No. 58553/16).
ii) The witness/DW1 was duly cross examined at length by the learned counsel for the plaintiff.
iii) The defendants further examined Sh. S.K. Gupta, Assistant Engineer, MaintenanceI, Rohini Zone, North DMC, Page No. 6/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 Delhi as DW2 to show that the said open space can be used by all the holders of the adjoining properties and the plaintiff has no exclusive rights upon the said space.
iv) The witness/DW2 was duly cross examined at length by the learned counsel for the plaintiff.
v) The defendants did not examine any other witness, therefore, vide order dated 01.05.2019, the defendant's evidence was closed and matter was fixed for final arguments.
9) I have heard the rival submissions of both the learned counsels and perused the entire material available on record and carefully gone through the same.
10) ISSUE WISE FINDINGS: A) Issue No. 1:
Whether the plaintiff is entitled to the relief of permanent injunction against the defendant for the suit property as prayed for?OPP.
i) The onus to prove this issue was upon the plaintiff and in order to discharge the same, the plaintiff has examined himself as PW1 and relied upon the copy of the sale deed dated 28.07.2010, executed by Sh. Purshottam Mishra in favour of the plaintiff and his wife Smt. Shyama Devi, the same was marked as Mark A, and site plan of the suit property was exhibited as Ex. PW1/2 and three photographs of the suit property were exhibited as Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5 respectively.
ii) It is claimed by the plaintiff that the open space infront Page No. 7/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 of his house is used by him since the date of purchase of his house. The defendants are the owner of one shop in the adjoining property bearing no. B9/344, Sector3, Rohini, Delhi. The defendants intends to install a shutter towards the open space infront of his house. The defendants in their written statement have admitted that one room in the property bearing no. B9/344, Sector3, Rohini, Delhi is owned by the defendant no. 1. The defendants have denied the existence of any shop in the aforesaid property. The defendants have also claimed that they have no intention to install any shutter by opening any gate towards the open space lying infront of plaintiff's house. The plaintiff in his deposition as PW1 has himself admitted that site plan Ex. PW1/2 shows the open space infront of his house and the said open space is common space. The said space is used by the occupants of H. No. 345, 346 and 347, Sector3, Rohini, Delhi and he has constructed a raised platform (chabutra) infront of flat no. 345 without obtaining any permission from any authority. It is clarified by him that the said raised platform was constructed for avoiding water logging infront of his house. He has denied that the present case is filed as the defendants have raised objections regarding the unauthorized construction in his flat. The existence of the open space infront of plaintiff's house is admitted by both the defendants with a rider that the same can not be exclusively used by the plaintiff and the plaintiff has no independent/exclusive right to the said open space.
iii) This fact is also proved by the examination of DW2 Sh. S.K. Gupta, Assistant Engineer, MaintenanceI, Rohini Zone, Delhi.
Page No. 8/12 Suit No. 58801/16Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 This witness has deposed that the raised platform infront of H. No. 345 of the plaintiff is an encroachment upon the public land and same has been raised without obtaining any permission/authority from the competent authority. The said raised platform has been made upon the common space meant for the public. The raised platform as shown in Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5 has been made upon the government land. He has also deposed that no door, window or opening exists in property of the defendant no. 1 Ashok Kumar towards the property of Sh. Kamal Chand, plaintiff herein and no such door, window or opening can be erected without obtaining any sanction building plan or approved layout plan. He has also deposed that the raised platform (Chabutra) infront of plaintiff's Kamal Chand has already been demolished.
iv) The deposition of plaintiff as PW1 and the documents placed on record by him as well as the deposition of DW1 and DW2 not only proves the existence of open space infront of plaintiff's house but also that the said open space is meant for the holders of all the adjoining/surrounding properties and the plaintiff can not claim any independent/exclusive right over the same. The plaintiff has failed to bring on record any evidence to show that the defendants have either opened or attempted to put any gate/shutter etc towards the said open/common space. The plaintiff has failed to bring on record any oral or documentary evidence for substantiating his claim regarding the threats extended by the defendants to install the shutter by opening any gate towards the said open space.
Page No. 9/12 Suit No. 58801/16Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 Moreover, the bone of contention between the parties is the raised platform over the common space/public land and the attempt by the defendants to open/install their gate towards the said open space. The aforesaid raised platform in the aforesaid open space has admittedly been already demolished by the competent authority i.e. MCD. This fact has been proved from the examination of DW2 Sh. S.K. Gupta, Assistant Engineer, MaintenanceI, Rohini Zone, Delhi. As far as the contention regarding opening/installing of the gate towards the aforesaid open space by the defendants is concerned, the DW1 in her deposition has categorically deposed that she has no intention to open/install any gate towards the said space. Moreover, the DW2 has also deposed that no door, widow or opening exists in the property of the defendant Ashok Kumar, towards the property of Shj. Kamal Chand, plaintif herein and no such door, widow or opening can be erected without obtaining any sanction building plan or approved layout plan. This shows that the defendants have no right to open or erect any door, widow or opening in their wall towards the aforesaid common open space without obtaining any permission from the competent authority. The plaintiff has failed to prove any attempt by the defendants to open/install any gate etc towards the aforesaid common space. The plaintiff has neither filed nor proved the filing of any such complaint etc with any competent authority. In view of the same, the plaintiff is not entitled to the discretionary relief of permanent injunction. Accordingly, the issue no. 1 is decided against the plaintiff.
Page No. 10/12 Suit No. 58801/16Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 B) Issue No. 2: Whether the suit of the plaintiff is bad for non joinder of the necessary parties?OPD2.
The onus to prove this issue was upon the defendants. It is submitted by the defendant no. 1 that he has no concern of whatsoever nature with the suit property as the said property is owned and possessed by his wife Smt. Urmila Rani. Thereafter, said Urmila Rani was impleaded as defendant no. 2 being a necessary party in the present case. She has also filed her written statement and has also examined herself as DW1 in the present case. In view of the same, the issue no. 2 stands disposed off.
C) Issue No. 3: Whether the suit of the plaintiff is without any cause of action?OPD.
The onus to prove this issue was upon the defendants. It has been held while deciding issue no. 1 that the plaintiff has failed to prove any attempt by the defendants to open/install/erect any gate in their wall towards the aforesaid common space over which raised platform has been constructed by the plaintiff. The said raised platform has already been demolished by the competent authority. Accordingly, the issue no. 3 is decided against the plaintiff.
11) Relief/Conclusion:
In view of the above discussion, it is clear that the plaintiff has failed to prove his case against the defendants on the Page No. 11/12 Suit No. 58801/16 Kamal Chand Vs. Ashok Kumar Date of Decision: 20.05.2019 balance of the probabilities. Accordingly, the suit of the plaintiff is dismissed.
No order as to the cost.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Digitally signed by SUNIL SUNIL KUMAR
KUMAR SHARMA
Date: 2019.06.19
SHARMA 23:33:20 +0530
Announced in the open Court (SUNIL KUMAR SHARMA)
on 20th day of May 2019 ACJcumCCJcumARC(NW)
(This judgment contains 12 pages Rohini Courts, Delhi
and each page has been signed by me)
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