Delhi District Court
Bimla Tokas vs Ramwati on 1 December, 2025
IN THE COURT OF ANUBHAV JAIN,
LD. DISTRICT JUDGE-05, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
DLND010146812018
RCA DJ No. 101/2018
In the matter of:
Bimla Tokas,
W/o Sh. Jagdish Tokas,
R/o H.No. 205, Village Munirka,
New Delhi-110067
...Appellant
Versus
1. Ramwati
W/o Sh. Satish Kumar,
R/o Plot No. 484,
Behind Gupta Property,
Sector-19, Dwarka, New Delhi
2.Narender
S/o Sh. Timan Singh,
R/o 205, Front Portion,
Munirka, New Delhi
3. Geeta Chaudhary
W/o Sh. Narender
R/o 205, Front Portion
Munirka, New Delhi ...Respondents
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of institution of Appeal : 01.12.2018
Date when judgment reserved : 26.11.2025
Date of Judgment : 01.12.2025
RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 1 of 15
JUDGMENT
1. Present judgment shall dispose of the appeal filed by the appellant against the judgment dtd. 01.10.2018 passed by Ld. Senior Civil Judge, Patiala House Court, New Delhi, whereby suit of the appellant was dismissed. For the sake of convenience, in the presetn judgment, parties shall be referred as per their original nomenclature in the suit.
FACTS OF THE CASE AS PER THE PLAINT:
2. Present suit for permanent & mandatory injunction was filed by the plaintiff against the defendant.
2.1. It is stated by the plaintiff in her plaint that she is W/o. Sh. Jagdish Tokas and is residing in the property bearing No. House No. 205, Village Munirka, New Delhi-110067 since 1996. (hereinafter referred to as 'the suit property'). It is further stated that the husband of the plaintiff alongwith his brother Satish Kumar had jointly inherited the said suit property from their father namely, Sh. Hardatt Singh and after the death of Sh. Hardatt Singh in 1995, both of his aforesaid sons jointly constructed the suit property upto four stories on the said plot in two separate portions, admeasuring about 160 sq. yards.
2.2. It is further stated that after the completion of the construction in 1996 both the brothers partitioned the said floor between them, whereby Sh. Satish Kumar had taken front portion of the suit property and rear portion of the suit property came to the share of husband of the plaintiff. It is further averred that in middle of two portions of the suit property there is a common RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 2 of 15 shaft of 10 ft. x 10 ft. for ventilation, drainage, sewage, supplying of common water pipes.
2.3. It is further stated that Sh. Jagdish Tokas has transferred his share of the suit property in the name of plaintiff vide sale deed dated 22.06.2006. Further, defendant No. 1 who is the real sister of husband of plaintiff purchased the suit property upto third floor from Mr. Satish Kumar out of his respective share in 2003.
2.4. It is further stated, that in January 2015 the defendant no. 2 representing himself to be purchaser of share of defendant No. 1 started construction on the roof of third floor of the suit property which was owned by defendant no. 1 and constructed more floors on the suit property. Further, during the process of construction, defendant No. 2 in active connivance with defendant No. 3 started closing the common shaft which was left open for the purpose of ventilation, common duct, drainage, common pipelines etc. It is further alleged that the plaintiff objected for the construction carried out by the defendants and a number of police complaints were made in this regard.
2.5. It is further stated that at the time of construction of the suit property, the defendants have covered more than half of common shaft which was of about 10 ft. x 10 ft and further, installed a window on the common wall of the suit property opening towards the plaintiff's house. It is further alleged that the plaintiff requested many times not to block the common shaft but the defendants did not pay any heed to the request of the plaintiff RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 3 of 15 and defendants carried out the construction on the shaft and blocked the shaft at fifth and sixth floors.
2.6. By way of present suit, plaintiff has sought that defendant be restrained from construction / blocking of common shaft till forth floor. Plaintiff has further sought mandatory injunction that defendants be directed to remove blockage of shaft by demolishing the illegal construction made in the shaft from ground floor up till 7th floor.
WRITTEN STATEMENT BY DEFENDANT NO. 2 AND 3:
3. Separate written statement was filed by Defendant no.2 & 3, whereby beside denying the averments so made by plaintiff in his plaint, both the defendants alleged that there is no common shaft in the house of the defendant no. 2. It is stated that in the portion/property of defendant no.2, there is an iron Jaal admeasuring 5 ft. X 5 ft., for light and air and there is no water pipe line or sewer line going through the same iron Jaal. It is further stated that the place where the said iron jaal are erected on each floor of the defendant no.2 is open and the same is not closed on any floor as alleged nor plaintiff has any concern with said iron jaal since same is exclusively in the portion of the defendant no.2.
3.1. It is further averred that there is similar iron jaal in the portion of the plaintiff also, but the plaintiff with malafide and bad intention concealed the said fact.
3.2. It is further alleged that the present suit is filed by the plaintiff in collusion with defendant no.1, they being relatives. RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 4 of 15 Answering defendants further prayed for dismissal of suit so filed by the plaintiff.
ISSUES :
4. That on the basis of pleadings filed by the parties, Ld. Trial Court framed following issues vide Order dated 01.07.2016:
1.Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from carrying out construction or blocking the common shaft of ground floor, first floor, second floor, third floor and fourth floor as shown in red colour in the site plan of the suit property? OPP
2. Whether the plaintiff is entitled to a decree of mandatory injunction of directing the defendants to remove the blockage of the shaft by demolishing the illegal construction made in the shaft from the ground floor to the top floor and to open the duct in the suit property on fifth, sixth and seventh floors of the suit property? OPP
3. Whether the suit is liable to be dismissed for concealment of material facts? OPD 2 and 3.
4. Whether the suit is liable to be dismissed for want of cause of action against the defendants no. 2 and 3? OPD 2 and 3
5. Whether the suit filed by the plaintiff is in connivance with the defendant no. 1? OPD 2 and 3.
6. Whether the suit is time barred? OPD 2 and 3. RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 5 of 15
7. Whether the suit is liable to be dismissed for deficiency in court fees? OPD 2 and 3.
8. Relief.
EVIDENCE:
5. Further, during the course of the evidence, plaintiff examined herself as PW-1, Sh. Devki Ram Tokas as PW-2, Sh. Harvinder Singh as PW-3, Sh. Deendayal as PW-4 and Sh. Jagdish Singh as PW-5.
6. On the other hand, Sh. Narender Kumar examined himself as DW-1 and Ms. Geeta Chaudhary as DW-2.
IMPUGNED JUDGMENT DATED 01.10.2017:
7. After completion of the evidence, Ld. Trial Court vide judgment dated 01.10.2018 dismissed the suit as filed by the plaintiff.
7.1. With respect to issue no.1, it was observed by Ld. Trial Court that same has become infructuous in lieu of statement dated 29.04.2016, given by the plaintiff that the construction in the suit property is already completed.
7.2. Qua issue no.2, Ld. Trial Court decided the same in favour of defendant and against the plaintiff, while observing that there is nothing on record to show that there exist any common shaft between the portion in possession of party or that any construction RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 6 of 15 was ever raised by defendant no.2 & 3 after purchasing the same from defendant no.1.
7.3. Ld. Trial Court further did not give any findings upon issue nos. 3,5, 6, & 7.
7.4. Further with respect to issue no.4, same was decided in favour of defendant, wherein it was observed that there was no right in favour of plaintiff, which was curtailed by the defendants.
APPEAL:
8. The present appeal is filed by the appellant on the grounds that the Ld. Trial Court did not rely upon the testimonies of the witnesses, wherein the construction of Iron Jaal was duly admitted by the defendant.
9. Reply to the same was filed by the respondent wherein the averments made in the appeal are denied and respondent prayed for dismissal of the present appeal.
ADDITIONAL EVIDENCE:
10. It is pertinent to state in here that during the pendency of present appeal, an application under Order XLI Rule 27 CPC was filed by the appellant, whereby he seeks to produce additional evidence, however, the said application was dismissed by Ld. Predecessor Court vide order dated 29.04.2025.
11. I have heard the arguments so led by Ld. Counsels for the parties and perused the case file carefully.
RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 7 of 15 OBSERVATIONS:
12. It is the case of the plaintiff that after inheriting the property in dispute by her husband namely Jagdish Tokas and his brother Satish Sharma from their father, they raised construction upon the same upto four stories, in two separate portions and while the front portion was kept by Satish Sharma, the rear portion came into the share of husband of plaintiff.
It is a grievance of the plaintiff that in between the said two portions, there was a common shaft measuring 10 ft. by 10 ft. for ventilation, drainage etc, however, defendant nos. 2 & 3 raised further construction and covered the said shaft thereby obstructing the ventilation, drainage etc. in the said building.
13.On the other hand, in the defence so raised by the defendants / respondents, they denied existence of any such common shaft in the house. Answering defendants admitted having an Iron Jaal, however, it is stated that same was merely admeasuring 5 ft. by 5 ft. only for the purpose of light and air and same is made in portion of each plaintiff and defendant and that plaintiff has nothing to do with the Iron Jaal erected in the portion by defendant.
ISSUE NOS. 3,5,6 AND 7:
14.Before proceedings further with the main contentions so raised by the parties with regard to covering of common shaft/Iron Jaal, this court deems it relevant to state herein that the Ld. Trial Court in the impugned judgment dated 01.10.2018 has not return any finding upon the issue no. 3,5,6 and 7, despite observing that no evidence was led by the defendants on the said issues. As such, this court proceed further to return findings on the abovesaid issues firstly.
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15.With respect to issue nos. 3 and 5 i.e.
3. Whether the suit is liable to be dismissed for concealment of material facts? OPD 2 and 3
5. Whether the suit filed by the plaintiff is in connivance with the defendant no. 1? OPD 2 and 3 Since both the issues are matter of fact and required evidence to be proved and since no such evidence is filed by the defendants in support of the said averments, both the said issues are decided against the defendants and in favour of plaintiff.
16.With respect to issue no. 6 that is the suit is time barred, it is stated by defendant no. 3 in her written statement that the construction in the suit property was completed in the year 2009 and the plaintiff has failed to approach the court within three year as per prescribed period of limitation.
17.Although, no arguments were led upon the said issue by Ld. Counsel for the respondent, however, this court does not find any merits in the same, since as per the facts averred in the plaint by the plaintiff, the cause of action in favour of plaintiff is continuous, since it is alleged that due to covering of the shaft the ventilation, drainage, common pipes etc are being obstructed.
18.With respect to issue no. 7 that there is deficiency in court fees, it is pertinent to state herein that by way of present suit, plaintiff has sought relief of permanent and mandatory injunction and has valued each reliefs at Rs. 130/- each and the plaintiff has paid court fees of Rs. 30/- upon the same.
19.On the other hand, defendant has not stated or mentioned or argued as to how the present suit is bad for deficiency of court fees. In RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 9 of 15 view of the same, since there is no evidence or arguments led by defendants in support of their contentions, the present issue is decided in favour of plaintiff and against the defendants.
COMMON SHAFT
20. Now coming upon the main grievance so raised by the plaintiff/appellant by way of present suit, with respect to covering of common shaft, it is pertinent to state herein that, although, as per the plaintiff, during the time of raising of construction by Jagdish Tokas and Satish Sharma on two separate portions of the property, a shaft was made measuring 10 ft. by 10 ft., however, the plaintiff never placed on record any such partition deed, whereby the respective portions of Jagdish Tokas and Satish Sharma were demarcated nor any site plan (prepared or approved at the time to raising of any such construction) is placed on record to show the respective portions of the parties or the alleged common shaft. It is further pertinent to state in here that the plaintiff was cross- examined in this regard, wherein she stated as under:
...I cannot say whether any document regarding partition between my husband and his younger brother is on record or not. I cannot tell even by looking at the file whether or not any such document is on record. I cannot say whether any such document was ever prepared. I never gave any information to any authority including MCD regarding partition. I cannot say whether there is any document to show the existence of the common shaft as mentioned in para 3 of my affidavit...
21.It is further pertinent to state in here that the defendant in their written statement denied existence of any such common shaft in the property. Further, neither of the defendants were cross-examined by Ld. Counsel for the plaintiff with respect to existence of any common shaft or coverage of the same, nor any question with respect to the same was put to any of the witness.
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22. It is further pertinent to note herein that as pe the plaintiff, her husband namely Jagdish Tokas transferred the rear portion in the property in favour of plaintiff by virtue of registered sale deed. The said sale deed is also placed on record Ex. PW-1/C. Even the said sale deed so executed by Jagdish Tokas in faovur of plaintiff with respect to property in dispute, there is no mention of any common shaft in the said property.
23. As such, in absence of any partition deed between the parties or sanctioned site plan or any other evidence with respect to said common shaft, it cannot be determined that there was any common shaft in existence, which was agreed upon by the parties to use as common.
IRON JAAL
24.However, in the written statement as well as during the course of cross-examination, it is duly admitted by the defendant that there existed an Iron Jaal in the property. It is further admitted that the size of the said Jaal was reduced over and above the 3 rd floor of the property. For the sake of convenience, relevant portion of the cross- examination of DW-1 namely Narender Kumar and DW-2 namely Geeta Chaudhary is being reproduced as under :
CROSS EXAMINATION OF NARENDER KUMAR .... When I stayed with the plaintiff, the front portion where I am staying, was constructed upto third floor. At that time, the iron jaal was already there in the suit property. I cannot state the exact width of the said jaal but it was the same as it exists today. It is correct that I have cut-shots the size of jaal on the upper floor when I constructed the upper floors. RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 11 of 15 There was a bore on the ground floor of the suit property which has been closed as on date due to MCD directions....
CROSS EXAMINATION OF GEETA CHAUDHARY:
....It is correct that the size of jaal has been reduced from its original size over and above the third floor of the suit property. ...
25.As such, from the admissions so made by the defendants, it is clear that there used to exist an Iron Jaal over the suit property, size of which was subsequently reduced upon further construction.
26. In view of the same, the question which requires determination is whether the said Iron Jaal, size of which stated to be reduced, lies within the common portion or was within exclusive possession/ownership of the defendant herein.
27.The burden lies upon the plaintiff to show/prove that the said Iron Jaal lies in the area which is for the purpose of common usage of owners of both the portions of the property.
28.From the entire pleadings so made by the plaintiff in his plaint, it is not clarified as to how much area / share in the said plot come within the share of each Jagdish Tokas and Satish Sharma or the covered / constructed area by each of the party over the same. The plaintiff has not even placed on record any approved or sanctioned site plan of the property.
29.The plaintiff in order to prove his case has examined 4 other witnesses, beside herself. The plaintiff during the course of her cross-examination (dtd. 08.08.2017) averred that there is a 2 x 2 foot net (Jaal) in the rear portion of the suit property. No such RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 12 of 15 averment was made by the plaintiff in her entire pleadings. Further, as per the plaintiff herself, she raised construction over the suit property up till 5th floor without obtaining any permission with regard to the same.
..... The house in which I am staying is constructed up to 4 th floor including the ground floor. In 1996, it was constructed up to 3rd Floor including the ground floor and one floor was got constructed by me in 2001-02. I do not know whether any initimation was ever given to MCD regarding completion of construction. I myself never gave any intimation......
......At the top, on the 4th floor, I am staying and it is also a two room set. It is incorrect that I have oncsturcted a room at the fifth floor. (Vol. That only a store is constructed at the roof.) The room at the roof is 8 x 6 foot. It is avery small rooom. No toilet is constructed at the roof....
30.It is further pertinent to state in here that while in the plaint, it is stated by the plaintiff that the common shaft is measuring 10 x 10 foot, however in the cross-examination, it is mentioned that the shaft is 6' x 8'. Relevant portion of the cross examination of the plaintiff dated 04.08.2017 is being reproduced herein for the sake of convenience:
"It is wrong to suggest that the front and the back portion of the suit property are separate. (Vol. That there is a common shaft in between.) The shaft is 6'x8'. It is wrong to suggest that there is no commons shaft between the two portion. It is correct that there are separate water meters, electricity meters and water tanks for the front and back portion of the suit property."
31.As such, apart from contradictions as to the area of the alleged iron shaft, the plaintiff has failed to show or prove that during the alleged partition between the parties, it was agreed that any Iron Jaal or any common shaft will be maintained. In fact, the plaintiff herself has raised construction over the property without obtaining any sanction from concerned authorities.
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32.It is further pertinent to state in here that PW-2 Sh. Devi Ram Tokas stated during the course of his cross-examination that the property in question consists of three floors and plaintiff Bimla did not carry out any construction in the said house.
The said averment is opposed to that of the plaintiff, since the plaintiff herself during the course of her cross-examination has stated she raised construction in her portion in the year 2001-2002 and in the year 2004.
Further, PW-3 Sh. Harwinder stated during the course of his cross-examination that the property of plaintiff is constructed upto 5 storey.
33. The plaintiff has also examined her husband namely Jagdish Singh Tokas as PW-5. Sh. Jagdish Tokas although in his affidavit of evidence has stated that the premises in question was constructed upto 3rd floor by him and his wife in the year 1996, however, during the course of cross-examination, it is stated by Sh. Jagdish Tokas that their house is constructed upto 4th floor since year 1996.
The said testimony is in contradiction of that of PW-2 who stated that the property is constructed upto 5 floors and also that of the plaintiff who stated that she has constructed one room over the roof of the 4th floor.
34.The plaintiff further in order to prove her case has examined one Sh. Deendayal as PW-4 who in his affidavit in evidence has averred to have raised construction of the property of Defendant no.2 Narender, however, during the course of cross-examination, he denied knowing plaintiff or anything regarding property in issue.
35.As such, considering the overall evidences, so relied upon by the plaintiff in order to prove her case, there is clear contradiction with RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 14 of 15 respect to number of floors constructed in the said property. Even, there is nothing on record which could have shown or prove that there was any common shaft in existence. Infact, as stated above, not even a single question was put to defendant witnesses, by Ld. counsel for the plaintiff, with respect to existence of any shaft. Further, there is contradiction in the pleadings as well cross examination of the plaintiff, with respect to the measurement of the said Iron Jaal.
36. Further, even if for the sake of arguments it is believed that grievance of the plaintiff is with regards to closure of Iron Jaal by the defendant and not that of shaft, then again, plaintiff has not adduced any evidence to show that said Iron Jaal was in common area. Infact, plaintiff in her cross examination herself admitted that there exists Iron Jaal on the rear side (i.e. portion of the plaintiff) of the property.
37.In view of the discussion made above, since there is no evidence led with regard to existence of any common shaft in the property in dispute or that there exist any Iron Jaal in the common area of the property, this court finds no merits in the present appeal and the same stands dismissed.
38.No order as to cost. Decree sheet be prepared accordingly.
39.File be consigned to record room after due compliance.
Digitally signed by ANUBHAV ANUBHAV JAIN Announced in the open Court JAIN Date: 2025.12.01 on 01.12.2025 02:34:19 +0530 (Anubhav Jain) District Judge-05 (New Delhi District) Patiala House Courts, New Delhi RCA DJ No. 101/2018 Bimla Tokas Vs Ramwati Page No. 15 of 15