Delhi District Court
Capt Jeet Singh vs (1) Sh. Gaj Raj Singh on 31 October, 2013
Suit No. 244/13
IN THE COURT OF MS. SHEFALI SHARMA CIVIL JUDGE (NORTH):
ROHINI COURTS: DELHI
Suit No. 244/13
Capt Jeet Singh
S/o Sh. Khushi Ram
R/o Vill. Mubarkpur Dabas,
Delhi. ......Plaintiff
Versus
(1) Sh. Gaj Raj Singh
S/o Late Sh. Sheesh Ram
r/o Village Kirari Suleman Nagar
near Nangloi, Delhi
(2) Sh. Babala
S/o Late Sh. Gianender Singh
r/o Village Kirari Suleman Nagar
near Nangloi, Delhi
.......Defendants
Date of Institution : 20.01.2010
Date Reserve for orders : 31.10.2013.
Date of Decision : 31.10.2013
Judgement
It is the case of the plaintiff that on 03.12.1988 the plaintiff had purchased
two plots bearing Private Numbers 33 & 34 ad measuring 100 sq. yards each out
Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 1/11
Suit No. 244/13
of khasra no. 14/25 situated in the Revenue Estate of Village Mubarakpur Dabas
Delhi in the colony known as "Surat Vihar" from Sh. Manegy Ram , Ram
Kanwar and Attar Singh all sons of Surat Singh vide GPA, agreement to sell,
affidavit etc.dt. 03.12.1998 for sale consideration of Rs. 40,000/ and the physical
possession of the suit property was handed over to the plaintiff on the same day.
That defdt no.1 & 2 have also purchased two plots of land measuring 500 sq yrds
adjoining to plot no. 34 belonging to the plaintiff having purchased the same
from defdt no. 3. That the plaintiff had constructed a boundary wall in the year
1997 with wire fencing around the suit property and was enjoying the suit
without any hindrance until defedt no. 1 in active connivance of defdt no.2 & 3
got installed an iron gate which is opening in the property of the plaintiff. That
defdt no. 1 neither took the consent of the plaintiff or took consent of his family
members before installation of the said gate. When the plaintiff objected and
requested the plaintiff to remove the said gate, he refused to do so . That on
19.09.2009 the defdts were removing and throwing away the bricks from the
boundary wall of the plaintiff and which constrained the plaintiff to file the
written complaint at PS Aman Vihar dt. 28.04.2009 but of no avail . Hence the
present suit for injunction seeking the relief that directing the defendants
especially defdt no.1, their heir, legal representatives, agents, assigns to remove ,
dismantle and to permanently close the "Gate" shown at points X to Y in the site
plan.
2. Defendant no. 1 & 3 vide their joint written statement denied the
Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 2/11
Suit No. 244/13
averments made in the plaint. It is specifically stated that there is no such plot
bearing no. 3334 as alleged by the plaintiff . That as per the chain of documents
there is a road/gali (18 F) which is existing at the site to which the plaintiff is
claiming to be the owner as his plots. It is further submitted that in the site plan
prepared by RWA Surat Vihar the road is clearly depicted . That plaintiff has no
right or interest in the common gali . That neither the plaintiff is the owner nor
in possession of the suit property nor the suit property consists of two plots as is
alleged by the plaintiff & rather is a common gali hence suit of the plaintiff is
liable to be dismissed.'
3 The WS of defdt no. 2 has reiterated the stand taken by defdt no.1 & 3 in the
WS which is not being repeated herein for the sake of brevity. Defdt no. 2 has also
emphasised that the gate is existing on the plots of the defendant no.1 & 2 for the last
several years. Further it is submitted that the defdt no.1 & 2 are the owners in
possession of their respective plots and it is the plaintiff who is trying to encroach upon
the Road/Gali (18 Ft) to which he is alleging to be his plots.
4. The plaintiff had filed replication to the written statement of defendants wherein the
plaintiff denied the averments made by the defendants in their written statement and
reiterated and reaffirmed the contents of the plaint. The same not being reproduced
herein for the sake of brevity.
5. From the pleadings of the parties following issues were framed by my ld.
Predecessor by order dated 27.08.2011.
Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 3/11
Suit No. 244/13
1.Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? (OPP)
2. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP.
Any other relief as prayed.
6. The plaintiff in support of his case adduced one witness PW1 who is the plaintiff himself who vide his testimony Ex. PW1/A reiterated the contents of the plaint and relied on documents Ex. PW1/1 to PW1/7. Ex. PW1/1 is the site plan. Ex. PW1/2 to Ex. PW1/5 are the copies of agreement to sell, GPA dt. 03.12.98, Ex. Pw1/6 is the complaint dt. 28.06.2001 Ex. PW1/7 is the complaint dt. 19.09.2009.
7. The defendant adduced three witnesses D2W1 is one Sh. Arun Kumar who is defdt no.2 in the present case who vide his testimony D2W1 reiterated the contents of the WS and relied upon the documents as D2W1 collectively which are the copies of the transfer documents viz GPA executed by Gajraj Singh in favour of defdt no.2. Ex. D2W1 Collectively are the property papers dt. 01.01.99. D2W1/2 are the property papers dt. 14.10.99.
8. DW2 is defdt no.1 who vide his affidavit as DW2/1 reiterated the contents of the WS and relied upon the documents , already documents filed by defedt no.
1.
9. DW3 is Sobaran Singh who is President of Surat Vihar who vide his oral Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 4/11 Suit No. 244/13 testimony testified that the Surat Vihar Sudhar Smiti is a registered society. The copy of the registration certificate is marked A. The memorandum of association of the society is Ex. DW3/1. He testified that being President, he got prepared the site plan of the colony which is Ex. DW3/2 and list of the owners of the plot is Ex. DW3/2. He testified that there is no plot of plaintiff in the colony namely Surat Vihar and that the plaintiff is wrongly claiming to be owners of the two plots of the north side which is infact a common road in the gali.
10. Plaintiff also adduced one Mr. Ravinder Kumar as PW2 in rebuttal plaintiff's evidence who had brought the original record of GPA executed in favour of the defdt no. 1 dt. 26.10.99 Ex. PW2/A, deed of will dt. 26.10.99 in favour of defdt no. 1 Ex. PW2/B. The GPA of Sh. Lal Chand in favour of defdt no.1 is Ex. PW2/D1 and another will in favour of defdt no.1 is Ex. As PW2/D2 dt. 01.11.1990.
11. I have heard the arguments of Ld Counsel Mr. B.S. Solanki for the plaintiff and Ld counsel Mr Deepak Khatri for the defendant and meticulously perused the record.
12. My issuewise findings is as follows:
1. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? (OPP)
2. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP.
13. Both issues taken up together being interconnected. The onus to prove the said issues was upon the plaintiff.
Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 5/11 Suit No. 244/13 It is the case of the plaintiff that the defendants have constructed an iron gate in the adjoining premises which opens in the property of the plaintiff and the same is causing hindrance to the plaintiff. On the other hand, the defdts denied the allegations made in the plaint and have taken the stand that plaintiff is not the owner of the suit property and the plots as alleged by the plaintiffs is actually a common gal and the defendants have rightly installed an iron gate in the common gali.
14. Thus, the moot point of controversy between the parties is whether the property of the plaintiff is a common gali as alleged by defendant or not. Vide the testimony of PW1 plaintiff has proved that on 03.12.1988 the plaintiff had purchased two plots bearing Private Numbers 33 & 34 admeasuring 100 sq. yards each out of khasra no. 14/25 situated in the Revenue Estate of Village Mubarakpur Dabas Delhi in the colony known as "Surat Vihar" from Sh. Manegy Ram , Ram Kanwar and Attar Singh all sons of Surat Singh vide GPA, agreement to sell, affidavit etc.dt. 03.12.1998 for sale consideration of Rs. 40,000/ and the physical possession of the suit property was handed over to the plaintiff on the same day. That defdt no.1 & 2 have also purchased two plots of land measuring 500 sq yrds adjoining to plot no. 34 belonging to the plaintiff having purchased the same from defdt no. 3. That the plaintiff had constructed a boundary wall in the year 1997 with wire fencing around the suit property and was enjoying the suit without any hindrance until defedt no. 1 in active connivance of defdt no.2 & 3 got installed an iron gate which is opening in the property of the plaintiff. That defdt no. 1 neither took the consent of the plaintiff or took consent of his family members before Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 6/11 Suit No. 244/13 installation of the said gate.
The dimensions of suit property are :
North: Other's plot South: Plot of 10,11,12,31,32, 36 East: Road 24 Ft West: Road 20 Ft
15. From the documents Ex. PW1/2 to PW1/5 which are GPA , Agreement to Sell etc the plaintiff has proved that he has some lawful right in the suit property. Thus, the onus had shifted upon the defendant to show that the property of the plaintiff is situated on a common gali and hence suit is liable to be dismissed. The defendants have adduced DW3 who is the President of Surat Vihar Society. Not a single document has been filed by the said witness to show his authorization to depose on behalf of the society. There is nothing in his examination in chief to show as to how and when he was elected as a President of the society. He has relied on the site plan Ex. DW3/2. The said site plan has not been prepared by any Government/authorized agency. Not a single avernment has been made in his examination in chief as to how and at whose instance the site plan was got prepared by the said witness. Thus not much weightage could be given to the site plan filed by DW3.
16. Further he has categorically stated that in the north side of plot of Gaj Raj Singh defdt no.1 there is a gali and there is no plot of the plaintiff and in fact on the north side of the plot of defendant no. 1. there is a common gali. At this stage, it is imperative to Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 7/11 Suit No. 244/13 appraise the testimony of PW2 from the Revenue Department who is an independent witness, Mr. Ravinder Chhikara who had brought the original documents from revenue department executed in favour of defdt on 26.10.99 i.e. Ex. PW2/A and PW2/B & further the documents exhibited as PW2/D1 and PW2/D2 dt. 01.11.99 in favour of defdt no.1. At the very outset, it is pertinent to note that Sh. Lal Chand had executed the same set of documents i.e GPA and Will dt. 26.10.99 and then again on 01.11.99 in a span of 4/5 days in favour of defdt no. 1 regarding the same property. There is no explanation afforded by the defendant as to why the same set of documents qua the same property and between the same person i.e. Lal Chand and defdt no.1 were got executed. This raises serious doubts on the defence taken by defdt no.1. I have carefully gone through the documents dt. 26.10.99 Ex. PW2/A and B as well as the document dt. 01.11.99 executed 5 days hence Ex. PW2/D1 and D2. Although the said documents are regarding the same property yet in both the set of documents the dimensions have been modified. In the documents Ex. PW2/A and PW2/B the dimensions of the property of the defdt no. 1 are:
East : gali 8 F , West: road 20 F North: Other Plot South: main road.
17. Whereas in the set of document dt. 01.1.99 Ex. PW2/D1 and D2 in place of North "other plots". Now there is road/gali of 18 F . It is surprising that in the documents dt. 26.10.99 north side reflects other plots (i.e. can be the plot of the plaintiff) then how 5 Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 8/11 Suit No. 244/13 days hence when the similar documents have been executed, the dimension got changed to a gali/road 18 feet. No explanation has been afforded by the defendant in this regard.
PW2 is an independent witness and there is no reason why his testimony should be disbelieved. Further the registered documents brought by the PW2 carry more weightage then the oral testimony of DW3.
18. Thus it is clear that on the North side of the defdt plot there was a "other plots" and no gali as was alleged by the defdts As stated above plaintiff through his testimony and that of PW1 & PW2 has proved that he is in possession of the two plots on the North side of the defendants plot. No substantial documentary evidence has been adduced by the defdt to rebut the same. Thus, from the evidence adduced on behalf of both the parties it can be safely inferred that there was no gali and therefore installation of the iron gate which opens into the suit property of the plaintiff and not in the gali as alleged by the defendants is creating hindrance . In these circumstances, this court is of the opinion that plaintiff has proved his case. This issue is decided in favour of the plaintiff and against the defdts.
19. Relief: In view of my findings in the aforesaid issue, defendants are directed to remove /dismantle and to permanently close the "Gate" shown at points X to Y in the site plan towards the property of the plaintiff i.e. bearing no. 33 & 34, Surat Vihar, Village Mubarakpur Dabas, Delhi (admeasuring 200 sq yrds falling in Khasra no. 14/25, situated in revenue estate of village Mubarak and Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 9/11 Suit No. 244/13 defdts are restrained from causing any interference or obstruction in any manner whatsoever in the peaceful enjoyment by the plaintiff of his property bearing no. 33 & 34, Surat Vihar, Village Mubarakpur Dabas, Delhi. Decree Sheet be prepared accordingly. No order as to cost. File be consigned to the record room.
Pronounced in the open court
today on 31.10.2013 (SHEFALI SHARMA)
CIVIL JUDGE (NORTH) ROHINI, DELHI
31.10.2013
Cap Jeet Singh Vs. Gaj Raj Singh & Anrs
10/11
Suit No. 244/13
31.10.2013
Present: None.
Vide separate judgment, the suit of the plaintiff is decreed. Defendants are directed to remove /dismantle and to permanently close the "Gate" shown at points X to Y in the site plan towards the property of the plaintiff i.e. bearing no. 33 & 34, Surat Vihar, Village Mubarakpur Dabas, Delhi (admeasuring 200 sq yrds falling in Khasra no. 14/25, situated in revenue estate of village Mubarak and defdts are restrained from causing any interference or obstruction in any manner whatsoever in the peaceful enjoyment by the plaintiff of his property bearing no. 33 & 34, Surat Vihar, Village Mubarakpur Dabas, Delhi. Decree Sheet be prepared accordingly. No order as to cost. File be consigned to the record room.
(SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI, DELHI/ 31.10.2013 Cap Jeet Singh Vs. Gaj Raj Singh & Anrs 11/11