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[Cites 2, Cited by 0]

Delhi District Court

Smt. Roshni Devi vs . Smt. Darshana & Ors. on 29 November, 2013

     IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE­17 
                  (CENTRAL), TIS  HAZARI COURTS, DELHI
                                      SUIT NO. 125/13
                  Smt. Roshni Devi Vs. Smt. Darshana & Ors.
ORDER

1. This order shall decide the application of the plaintiff U/o XXXIX R 1 & 2 CPC seeking to restrain the defendants their accomplices and servants from taking forcible possession of the latrine forming part of property no. N­47, Ground Floor, Double Storey, Malka Ganj, Delhi - 110 007 till the disposal of the suit.

2. The plaintiff has filed the present suit for permanent injunction inter­alia stating that she is the owner of a portion of the premises comprising two rooms, kitchen, one store, bath and latrine forming part of the property no. N­47, Ground Floor, Double Storey, Malka Ganj, Delhi - 110 007 by virtue of a registered relinquishment deed. The plaintiff alleges that after purchassing the latrine blocks of flat no. N­43 and N­45, Malka Ganj, Delhi in November, 2011 and converting it into a residence, defendants no. 1 and 2 tried to take forcible possession of the latrine of N­47 just adjacent to the latrine block N­43 and N­45 by putting a steel Almirah in front of the gate of the latrine. The plaintiff objected to the said illegal activities of the defendants and asked them to remove the same. The matter was reported to the police vide DD dated Suit No. 125/13 Smt. Roshni Devi Vs. Smt. Darshana & Ors. 1/6 15.11.2011 and the police with great difficulty was able to persuade the defendants no. 1 to 4 to remove the steel Almirah from the gate of the latrine of the plaintiff. On 14.11.2011 plaintiff along with her family members had gone to a marriage ceremony and during the night when here three daughters returned to the residence at N­47, Malka Ganj the defendants attacked her daughters and son of the plaintiff namely the plaintiff and her family members were resisting the attempts of the defendants to take forcible possession of the latrine forming part of the property no. N­47, Ground Floor, Double Storey, Malka Ganj, Delhi - 110 007. The daughters and the son of the plaintiff namely Gaurav received grievous injuries and MLC's were prepared. The plaintiff made a complaint against the defendants vide a number of applications against their continuous attempt to take forcible possession of the latrine in question. A Kalandra dated 15.11.2011 was filed by the police against the parties to the present suit. In the said proceedings vide final order dated 25.05.2012 the defendants were directed to furnish their personal bond/surety bond U/s 117 Cr.P.C. to maintain peace in future for a period of one year w.e.f. 25.05.2012. After the passage of one year defendants were again making illegal attempts to take forcible possession of the latrine. On 26.07.2013 the defendants tried to forcible dispossess the plaintiff from the possession of the latrine in question (the suit property). They were unsuccessful in doing so because of the help of the neighbours and the children of the plaintiff. The Suit No. 125/13 Smt. Roshni Devi Vs. Smt. Darshana & Ors. 2/6 police officials did not lodge the plaintiff's complaint. In the application U/o XXXIX R 1 & 2 CPC, the plaintiff states she has a prima facie case.

3. The defendants no. 1 and 3 to 6 have filed a joint written statement. Defendant no. 2 is ex­parte. In the preliminary objections the contesting defendants state that the double storey quarters of Malka Ganj including the suit property were constructed as per the lay out plan by the Urban Development Ministry long back and as per the lay out site plan for four ground quarters, four latrine were constructed with separate common passage way with door on the ground floor and it was similarly provided on first floor. However, in the entire double storey colony no store room facilities were provided and it was further alleged that the plaintiff was trying to show the separate common passage way rooms for four latrine as a latrine and her latrine room were shown as store room in order to grab the common passage room in the garb of colony it a latrine. It was alleged that the plaintiff had also encroached at the back side of the Government land for illegally constructing one room. Further, there was no facility for store room in the entire double storey quarters and the present suit had been filed as a counterblast of the complaint case field by defendant no. 1 which was pending in the court of Ld. MM and the plaintiff had threatened for the same to be withdrawn else the defendants would be falsely implicated in a false case. It is stated that the site plan filed by the plaintiff is not genuine and plaintiff has no locus standi to Suit No. 125/13 Smt. Roshni Devi Vs. Smt. Darshana & Ors. 3/6 file the present suit.

4. In the reply to the application U/o XXXIX R 1 & 2 CPC the defendants vehemently opposed the same averring that the plaintiff had no prima facie case and it was prayed that that the application of the plaintiff U/o XXXIX R 1 & 2 CPC be dismissed with costs.

5. Oral arguments were advanced by counsel for plaintiff and arguments were partly advanced on behalf of the defendants. On 26.10.2013 Ld. counsel for defendants had sought one opportunity for placing on record the lay out plan of the colony wherein the suit property lay and an opportunity in this regard was given to the defendants but it was made clear that regardless of whether the said lay out plan was filed or not on the next date the arguments on the injunction application would be heard and the matter would be reserved for orders thereon. On next date the lay out plan was not filed by the defendants neither were further arguments addressed on their behalf. The defendants had been granted an opportunity to file brief written arguments if they so wished but the defendants did not choose to do so. In any case, I am proceedings to decide this application on merits.

6. The plaintiff has filed a site plan of the property in question i.e. property no. N­47, Ground Floor, Double Storey, Malka Ganj, Delhi - 110 007 showing shown the suit property in red mentioning the same being a latrine of the property no N­47. The copy of the relinquishment deed dated 02.02.2012 in Suit No. 125/13 Smt. Roshni Devi Vs. Smt. Darshana & Ors. 4/6 favour of the plaintiff has been filed. A complaint purportedly addressed to the DCP dated 22.11.2011 making allegations against the defendant no. 1, and also the copy of complaint dated 13.08.2012 have been filed by the plaintiff. The copy of the Kalandra as well as the final order dated 25.05.2012 in DD No. 72B dated 15.11.2011 is also on record and counsel for plaintiff pointed out that in the said order the Ld. SEM had observed that the first party therein (i.e. the defendants no. 1, 2 and 4 to 6 herein) to be the aggressors and also found substance in the allegations of the second party (which were included the children of the plaintiff) and therefore the defendants no. 1, 2 and 4 to 6 herein had been ordered to furnish their personal bond/surety bond to maintain peace in future for a period of one year w.e.f. 25.05.2012. The defendants have not filed their own site plan till date and have placed on record certain photographs but it is not clear from the photographs as to what exactly the defendants have sought to show through them.

7. It is well settled that prima facie case does not mean prima facie title, the plaintiff has to show basically that there is a bonafide dispute between the parties which requires trial and in the present case the plaintiff has been able to shown the existence of an imminent threat of forcible dispossession by the defendants from the suit portion as is clear from the copies of the various police complaints and the proceedings before the Ld. SEM as filed by the plaintiff. The defendants claim that the suit portion is a common space and Suit No. 125/13 Smt. Roshni Devi Vs. Smt. Darshana & Ors. 5/6 not a latrine however prima facie there are no documents to corroborate this argument of the defendants and they would have to prove this allegation in trial. The plaintiff relies on a relinquishment deed to show her entitlement to the suit property. The defendants have not specifically denied the possession of the plaintiff qua the suit latrine in dispute. The plaintiff's possession of the suit property has to be protected pending the disposal of the suit. If interim injunction is not granted to the plaintiff then there is a danger that the suit of the plaintiff may become infructuous and irreparable loss and injury would be caused to the plaintiff. The balance of convenience also lies more than infavour of the plaintiff rather than the defendants.

8. In view of the aforesaid discussion the application of the plaintiff U/o XXXIX R 1 & 2 CPC is hereby allowed and the defendants and their accomplices are restrained from taking forcible possession of the suit portion i.e. latrine, forming part of the property no. N­47, Ground Floor, Double Storey, Malka Ganj, Delhi - 110 007 till the disposal of the present suit. Nothing in this order shall be construed on the expression on the merits of the present suit. 

Announced in the open court                              ANJANI MAHAJAN
On 29.11.2013                                            Civil Judge - 17 (Central)
                                                         29.11.2013




Suit No. 125/13              Smt. Roshni Devi Vs. Smt. Darshana & Ors.                 6/6