Delhi District Court
Pradeep Kumar Dubey vs Surjeet Kasana Anr Ors on 24 December, 2025
NEHA
IN THE COURT OF MS. NEHA PRIYA PRIYA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER Digitally signed
by NEHA PRIYA
SOUTH, SAKET COURTS, NEW DELHI Date: 2025.12.24
16:02:25 +0530
In the matter of:
CS SCJ No. 83908/2016
CNR No. DLST03-000336-2013
Mr. Pradeep Kumar Dubey
S/o Shri Uday Narayan Dubey
R/o D-75, Badarpur Extension,
New Delhi-110044
..........Plaintiff
versus
1. Mr. Surjeet Kasana
Plot No. D-55, D-66
Badarpur Extension,
New Delhi-110044
2. Mr. Gagan Kasana
Plot No. D-55, D-66
Badarpur Extension,
New Delhi-110044
3. South Delhi Municipal Corporation
(Central Zone)
Through Its Deputy Commissioner,
Dr. S.P.M. Civic Centre,
Minto Road,
New Delhi-110002
4. Kasana Educational And Cultural Society
Through Its President/Manager
Stanford Convent School
Plot No. D-55, D-66
Badarpur Extension,
New Delhi-110044
..........Defendants
Page No. 1 of 29
Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025
Date of institution : 12.02.2013
Date of pronouncement of decision : 24.12.2025
Decision : Decreed
SUIT FOR MANDATORY & PERMANENT INJUNCTION
JUDGMENT
1. Plaintiff has filed this suit seeking demolition and removal of (i) the unauthorized and illegal roof and construction thereon connecting both the buildings situated on opposite plots i.e. plot nos. D-55 and D-56, Badarpur Extension, New Delhi-110044, thereby covering the common passage/approach as well as (ii) the unauthorized and illegal gate installed at the entrance of the common passage/road to the house of the plaintiff and other house of street; and also restraining defendants no. 1, 2 and 4 from raising any kind of construction or installing any gate and/or creating any kind of nuisance or obstruction in future at the entrance of or in the common passage road to the house.
Averments of the plaint
2. Case of the plaintiff is that he is a resident of D-75, Badarpur Extension, New Delhi-110044, and has been residing in the said property with his family since 1995. Defendant no. 1 is the owner of plot no. D-55 & D-56, Badarpur Extension, New Delhi-110044 and is the president/chairman of defendant no. 4, which is a registered society. Defendant no. 3 is the concerned authority empowered to take action against illegal and unauthorized construction i.e. the MCD.
3. It is stated that defendant no. 1 is a local politician and Page No. 2 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 defendant no. 2's wife is also a local councillor. They are father and son, and are running a private school in the name of "Stanford Convent School" at plot no. D-55 & D-56 (inadvertently stated as D-66 in the plaint), Badarpur Extension, New Delhi-110044. The said plots on which the school is situated are located opposite each other, and at the main entrance of the by-lane/approach road to the street on which the house of the plaintiff is located. The said by-lane/approach road is the only passage connecting the house of the plaintiff as well as the other houses situated in the street to the main road, market and rest of the world. The same is a common road/thoroughfare which is used by the residents of the entire street (inclusive of plaintiff) as the only approach road/way/passage to their respective houses.
4. It is further stated that the said school initially admitted students from nursery to 5th standard only, and was located only on plot no. D-55. However, with the passage of time and increase in the number of students and classes (up to 10th), defendant no. 1 & 2 expanded the said school to plot no. 56 as well.
5. It is contended that sometime back, defendant no. 1 & 2, by taking undue advantage of holding two opposite plots, started raising construction of the common roof connecting both the buildings (situated on opposite plots i.e plot nos. D-55 & D-56) thereby covering the common passage/approach road at the entrance despite the objections of the plaintiff and other residents of the street. Not only defendant no. 1 & 2 have illegally and unauthorizedly constructed the common roof connecting both the buildings but have also raised further construction of two storeys on the common roof Page No. 3 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 covering the common passage/main approach road.
6. It is further contended that the objections raised by the plaintiff and other residents of the street to these illegal and unauthorized activities of defendants no. 1 and 2 fell on deaf ears as defendant no. 1 & 2 are very influential persons. The plaintiff was even manhandled by the brother of defendant no. 1, and was threatened with dire consequences. The plaintiff was also threatened that he would be forced to sell his house in case he tried to raise any objection.
7. Thereafter, defendant no. 1 & 2 subsequently got a gate also installed at the main entrance of the said approach road/common road despite the severe resistance and objection of the plaintiff. They also appointed a guard on the said gate, and keep the gate closed and locked for most of the day especially from 7 am till the conclusion of school hours.
8. It is averred that covering of the common road/approach road at the entrance, installation of the gate and keeping it locked is creating lot of nuisance, problem and obstruction to the plaintiff, and 18-20 other families residing in the colony/street, since their only passage has been blocked, and their ingress/ egress has been restricted.
9. It is stated that the plaintiff made complaints dated 04.12.2012 and 24.12.2012 to defendant no. 3, however, no action was taken. Facing threats from defendant no. 1 & 2 and fearing for his and his family's life, plaintiff also made complaints to the concerned police station on 04.12.2012 and to the Deputy Commissioner of Police on Page No. 4 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 24.12.2012 but no action was taken. Plaintiff further made a complaint to Central Vigilance Commission on 28.01.2013 but to no avail.
10. It is further stated that initial written statement filed by the defendant no. 1 and 2 revealed that the school was being run and managed by a registered society, namely, 'Kasana Educational and Cultural Society', to whom the building in question was allegedly leased out by defendant no. 1. It was also claimed that plots no. D-55 & D-56 are situated parallelly to each other instead of being opposite to each other. It was also claimed that defendant no. 2 has nothing to do with the school, school management or the land in question.
11. In respect thereof, in the amended suit, plaintiff contented that he was not aware about 'Kasana Educational and Cultural Society' as it has always been defendant no. 1 & 2 who were holding out to the plaintiff and others as owner of the school. On paper, the said society may seem to have different persons as its members/office bearers alongwith defendant no. 1, but in reality the said society is only a dummy, and actual control of the society as well as of the school lies in the hands of defendant no. 1 & 2. Also, technically defendant no. 2 may not be the owner of the plots but he is the son of defendant no. 1 and has always been actively involved with the defendant no. 1 (who is the owner) in the construction of unauthorized building on D-56, and in installing the gate obstructing the passage/road, and in extending threats to the plaintiff.
12. Lastly, it is stated that being personally aggrieved by the illegal and unauthorized acts of defendant no. 1, 2 & 4, the plaintiff Page No. 5 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 approached the Hon'ble court in a bona fide manner since nobody including defendants has any rights to install the gate and cover common passage thereby restricting the movement of the plaintiff and his family especially when road/passage/approach in question was shown to the plaintiff as the only road/passage/approach to his plot at the time of purchase of his plot, and when the plaintiff and his family members have been using the same since 1995 as the road/passage/approach to their house.
13. Having been left with no other option, plaintiff filed the present suit seeking the following reliefs:
"A) Pass a decree of mandatory injunction in favor of the plaintiff and against the defendant no. 1, 2 & 4, thereby directing the defendants no. 1, 2 & 4 to demolish and remove the unauthorized and illegal common roof and construction thereon connecting both the buildings situated on opposite/parallel plots i.e. plot nos. D-55 & D-56, thereby covering the common passage/approach, and to remove the unauthorized and illegal gate installed at the entrance of the common passage/approach road to the house of the plaintiff;
And in case the defendant no. 1, 2 & 4 fail to comply with the directions of the Hon'ble Court to direct the Defendant No. 3 to demolish and remove the unauthorized and illegal common roof and construction thereon connecting both the buildings situated on opposite/parallel plots i.e. Plot Nos. D-55 & D-56, thereby covering the common passage/approach, and to remove the unauthorized and illegal gate installed at the entrance of the common passage/approach road.
B) Pass a decree of permanent injunction in favor of the plaintiff and against the defendant no. 1 & 2 and 4 thereby restraining them, their agents, workmen, employees, heirs, representatives or any person acting through or under them or on their behalf from raising any kind of construction or installing any gate and/or creating any kind of nuisance, obstructions in future at the entrance of or in the common passage/approach road to the Page No. 6 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 house of the plaintiff and other houses of the street."
Written Statement
14. The suit was opposed by defendant no. 1 & 2 by way of written statement stating that the suit is not maintainable being devoid of any merits; the same is gross abuse of process of law and court; defendant no. 2 has nothing to do with the school and its management; suit is barred under Order I Rule 8, Order VII Rule 4 and Section 91 of CPC as it is filed in representative capacity without seeking leave of the court; the suit is barred by limitation as the construction was completed in 2006-2007 whereas the suit has been filed in February 2013; the plaintiff has not approached the Court with clean hands and is guilty of misrepresentation; the gali/passage in dispute is a private gali which is private land of defendant no. 1; and the construction being old is protected under the provisions of the The National Capital Territory of Delhi Laws (Special Provisions) Act, 2011.
15. On merits, defendants denied and disputed the facts alleged in the plaint. It is stated that the school is being run by defendant no. 4; the construction upon plot no. D-55 and D-56 was raised simultaneously as opposed to averment of the plaintiff; there is no illegal and unauthorized construction in the property; the said gate has been installed at the entrance of the property for safety and security of the school children to avoid any untoward incident, and guards have been deployed at the gate to prevent inconvenience to anyone; there is no hindrance or obstruction caused by covering of the approach road which was left by the defendants out of their own land by installation of said gate; while constructing the school building, a site plan of the Page No. 7 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 building was submitted to MCD on 16.02.2007 and accordingly, an inspection was carried out by MCD officials on 22.02.2007 and Zonal Engineer (W) MCD issued a fitness certificate to that effect; plaintiff has filed false complaints with the authorities; no other occupant of the area ever objected to the same and plaintiff has no cause of action. Thus, suit be dismissed.
16. Defendant no. 3/ MCD, also filed its written statement along with a status report. Defendant no. 3 raised the preliminary objection that the suit is barred for want of statutory notice u/s 477 and 478 DMC Act. It was further contended that the plaintiff did not disclose any cause of action, the gate has been affixed for safety, same was open, there is no ongoing construction or building material found at site, and the construction and school is very old.
17. In the status report filed, it is stated that it is an unauthorized colony; the properties are self numbered; there is no approved layout plan; presently the provisions of 'The National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 are in force, and thus status quo qua the construction as on 08.02.2007 is to be maintained.
18. Defendant no. 4 filed its written statement on the same lines as defendant no. 1 and 2.
Replication
19. By way of replication, averments of plaint were reiterated and contents of written statement of defendants were opposed.
Page No. 8 of 29Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 Issues
20. Vide order dated 20.07.2017, following issues were framed:-
Issue no. 1: Whether the plaintiff has no cause of action and locus standi to maintain the present suit as the passage in question is not common and part of property of defendants? OPD Issue no. 2: Whether the suit is bad for mis-joinder of the parties? OPD Issue no. 3: Whether the suit of the plaintiff is barred under Order 1 Rule 8 and Section 91 of CPC? OPD Issue no. 4: Whether the present suit is barred by limitation? OPD Issue no. 5: Whether the plaintiff has not approached the Court with clean hands and himself raised unauthorized construction on his property? OPD Issue no. 6: Whether the suit property is duly protected under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 and therefore the plaintiff is not entitled to decree of Mandatory Injunction in respect of unauthorized construction and illegal common roof and construction as claimed by the plaintiff? OPD Issue no. 7: Whether the suit property is duly protected Page No. 9 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 and therefore the plaintiff is not entitled to decree of Mandatory Injunction in respect of unauthorized construction and illegal gate installed at the common passage as claimed by the plaintiff? OPP Issue no. 8: Whether the plaintiff is entitled to decree of Permanent Injunction as prayed for in prayer clause (B) of the plaint? OPP Issue no. 9: Relief.
Plaintiff's Evidence
21. Plaintiff Sh. Pradeep Kumar Dubey examined himself as PW-1. He tendered his evidence by way of affidavit as Ex. PW-1/1 and relied upon photographs (three in number), Ex. PW-1/A to C; copy of application dated 04.12.2012 to the SHO PS Badarpur, New Delhi, vide DD no. 58-B dated 04.12.2012 (OSR), Ex. PW-1/D; copy of application dated 04.12.2012 to the Deputy Commissioner, MCD, Jal Vihar, New Delhi, containing acknowledgment towards the receiving of the same, Ex. PW-1/E (OSR); copy of application dated 24.12.2012 to the DCP, Sarita Vihar, New Delhi containing acknowledgment towards the receiving of the same dated 24.12.2012, Ex. PW-1/F (OSR); copy of application dated 24.12.2012 to the Deputy Commissioner, MCD, Jal Vihar, New Delhi, containing acknowledgment towards the receiving of the same dated 24.12.2012, Mark A; copy of application dated 28.01.2013 to the Central Vigilance Commission, INA, New Delhi, received by Dak on 28.01.2013, Mark Page No. 10 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 B; site plan along with certificate under Section 65-B of Indian Evidence Act, 1872, Mark C (colly).
22. During cross-examination, plaintiff exhibited agreement to sell, GPA and affidavit dated 13.09.1996 in respect of his property no. D-75, Badarpur Extn., New Delhi as Ex.PW1/DA (Colly.) (OSR).
23. Ct. Guddu Kumar was examined as PW-2. He brought the copy of order dated 27.07.2016 bearing reference no. 8848-8922/HAR/SED issued by ACP/HQ for Dy. Commissioner of Police, South-East District, New Delhi. As per the said order, all complaints and miscellaneous files pertaining to year 2011 and 2012 of all police stations were ordered to be destroyed. He deposed that as per record, the summoned record of complaint dated 24.12.2012 lodged by Sh. Pradeep Kumar Dubey was not available at office as the same had been destroyed. The copy of order dated 27.07.2016 was marked as Mark A.
24. Brother of plaintiff, Sh. Dilip Dubey was examined as PW-3. He tendered his evidence by way of affidavit as Ex. PW-3/A.
25. ASI Vijay Kumar, PS Badarpur was examined as PW-4. He deposed that summoned record i.e. application/complaint dated 04.12.2012 received vide DD no. 58B dated 04.12.2012 had been destroyed vide order no. 1302-76/HAR/SED dated 06.02.2017, and exhibited its copy as Ex. PW-3/A.
26. Sh. Anuj Rawat, Junior Secretarial Assistant, CVC was Page No. 11 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 examined as PW-5. He produced the original record pertaining to application dated 28.01.2013 submitted by Sh. Pradeep Kumar Dubey (plaintiff) and received vide dak in his office on 28.01.2013 and exhibited its copy as Ex. PW-5/A.
27. Sh. J.K. Khullar, A.E (Building) Central Zone, MCD was examined as PW-6. He brought the record of application dated 04.12.2012 and 24.12.2012 received from plaintiff and exhibited them as Ex. PW-6/A and Mark B6; and also exhibited copy of the relevant register entries as Ex. PW-6/B. Defendant's Evidence
28. Defendant no. 1/Sh. Surjit Singh Kasana examined himself as DW-1. He tendered his evidence by way of affidavit as Ex. DW1/A. He relied upon the documents i.e. photocopies of sale documents i.e. General Power of Attorney dated 11.12.1995, deed of Will dated 11.12.1995, agreement to sell dated 05.12.1995 and receipt dated 11.12.1995, executed by the erstwhile owner in his favour, Ex. DW1/1 (Colly.) (OSR); copy of registration certificate of defendant no.4 society, Ex. DW1/2 (OSR); copy of letter dated 16.02.2007 and site plan submitted by defendant no. 4, Ex. DW1/3 (colly.) (OSR); copy of fitness certificate dated 27.02.2007, Ex. DW1/4 (OSR); 7 photographs, Mark A (colly.), copy of report of S.I. PS Badarpur dated 22.02.2013 alongwith copy of statement of other residents, Mark B (Colly.); copy of National Capital Territory of Delhi Laws (Special Provisions) Second Bill, 2011, Mark C; copy of letter dated 27.11.1992, Mark D; copy of letter dated 10.11.1999, Mark E; copy of acknowledgment dated 29.12.2004, Mark F; copy of Page No. 12 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 acknowledgment dated 28.12.2007, Mark G; and copy of letter dated 12.08.2008 for issuance of Provisional Regularization Certificate to RWA, Mark H.
29. During cross-examination, DW1 exhibited photograph showing two office gates located on the main road to the school buildings as Ex.DW1/X1. He also exhibited photograph showing the main gate in Ex.DW1/X2 at point A. He also exhibited photograph showing main gali (main passage used by residents families of the Kasana Complex) as well as the opened main gate in Ex.DW1/X3 at point A.
30. Sh. Mahesh Chand, Planning Surveyor, Town Planning Department, MCD, Delhi was examined as DW-2. He deposed that the summoned record i.e. one letter dated 27.11.1992 was not available with Town Planning Department.
31. DW-3 Sh. Sandeep Malik, Assistant Section Officer, UC Cell, Urban Development, Govt of Delhi produced the summoned record i.e. attested copy of acknowledgment receipt no. 00588 dated 29.12.2004 and attested copy of letter dated 12.08.2008, Ex.DW-3/1 and Ex.DW-3/2 respectively.
32. DW-4 SI Sudhir Singh, No. 1254D, PS Badarpur, New Delhi deposed that the summoned record had been weeded out being an old record vide weeding out order dated 14.01.2021, copy of which was marked as Mark X.
33. DW-5 Sh. Chaman Lal, Executive Engineer, Division M-II, Page No. 13 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 Central Zone MCD, deposed that as per official record, the summoned record was stolen from the office of EE M-II, Central Zone, Shiv Mandir Marg, Jal Vihar, Lajpat Nagar and to that effect an FIR was lodged by the department on 08.02.2016 with PS Lajpat Nagar vide FIR no. 0104/2016, copy of which was marked as Mark DW5/A.
34. SI Rajiv Kumar, No. D1547, presently posted at PS Vijay Vihar, Rohini, Delhi was examined as DW-6 and proved his report, Ex. DW6/1. He did not produce the original as the same had been destroyed vide order no. 10006-10100 dated 05.06.2024, Ex. DW6/2.
Appreciation of Evidence & Analysis
35. The matter was ably argued by Sh. Akshay Goel, learned counsel for plaintiff; Sh. Bharat Deepak, learned counsel for defendant no. 1, 2 and 4; and Sh. Rajiv Bhardwaj, Ld. Counsel for defendant no.3. I have heard the submissions advanced by the learned counsels and carefully perused the record.
Issue No.1 Whether the plaintiff has no cause of action and locus-standi to maintain the present suit as the passage in question is not common and part of property of defendants? OPD
36. Onus of proof of this issue is on the defendants. Plaintiff has pleaded a specific case and has testified that defendant no.1 & 2 are father and son, and are running a private school at plot no. D-55 & D-56, Badarpur Extension, New Delhi - 110044. The plots on which the school is situated are located just opposite each other, and a gate is installed at the main entrance of the by-lane/approach road to the Page No. 14 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 street on which plaintiff's house is located. The said by-lane/ approach road is the only road/passage connecting his house (and other houses situated in the street) to the main road and market. It is stated that the by-lane/approach road is the common road/thoroughfare, and is used by the residents of the entire street including him.
37. Plaintiff has further testified that defendant no. 1 & 2, despite objections by the plaintiff and other residents of the locality, raised illegal and unauthorised construction being influential persons of the locality. It is also alleged that defendant no. 1 & 2 deputed a guard on the said gate installed at the main entrance, and also threatened the plaintiff with dire consequences.
38. Defendants no. 1, 2 and 4 have set up a defense that in 1995, defendant no.1 purchased 2 bighas and 15 biswas of land in the abadi of village Tajpur, tehsil Mehrauli, New Delhi as per document Ex. DW1/1. In 1996, defendant no.1, sold a portion of the said land at the backside, out of which small residential plots were subsequently purchased by 15-20 people including the plaintiff.
39. It is deposed by DW1 that later on, defendant no.1 being the owner of the above said remaining land, raised construction of 'Stanford Convent School' building in phases and completed the same in the year 2006-2007. The school is run and managed by defendant no. 4 society, duly registered under the Societies Registration Act as per registration certificate, Ex DW1/2.
40. Defendant no.1 testified that during construction of the school Page No. 15 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 building, a private passage was left by him out of his own land at the starting of the school building, thereby covering the said private passage from the first floor of the school building and since then, entire complex i.e. school building and the residential houses at its back are known as 'Kasana Complex'.
41. It is deposed that since teenage students remain in the school during school hours, at the time of constructing the school building, the school authority thought it proper to fix a gate at the entrance of the school much prior to 2006-2007 to avoid any untoward incident, and further deployed day and night guards for the safety of the students and the school building as well as the residents, whose houses are situated at the back side of the school. It is deposed that a small gate remains open at all times and whenever any resident comes by his vehicle, the guard on duty opens the main gate and closes the same after passing of the vehicle, which shows that the gate fixed and guard deployed by the school are for the safety of students and the residents residing at the backside of the school building. It is further deposed that till date, except the plaintiff, none of the residents have raised any objection despite the fact that the said gate is in existence since long.
42. In this regard, defendant no.1 has proved a covering letter dated 16.02.2007 and a building plan Ex DW1/3 which was submitted to MCD by defendant no.4.
43. On the basis of above deposition and documents, it is argued that plaintiff has no cause of action and locus-standi to maintain the present suit as the passage in question is not common passage and is Page No. 16 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 part of property of defendants.
44. Though defendants have stated that there has been no construction after 2007 and relied upon the building plan to substantiate the same, upon perusal of the building plan Ex. DW-1/3, it is evident that building plan is in respect of plot no. D-55 and it does not mention any construction on plot no. D-56. Also, it does not show any basement and shows only two gates whereas DW1 during his cross-examination admitted to existence of basement of the building, and a third gate. The school building fitness certificate issued by MCD on 27.02.2007 also specifies the address of the 'Stanford Convent School' as D-55 only, and does not mention D-56. Thus, it becomes clear that the building upon D-56, the connecting corridor and a third gate (the gate in question which is not reflected in the building plan Ex.DW1/3 relied upon by defendant no.1) were constructed subsequently.
45. It is pertinent to note that in their written statements, defendants no. 1, 2 and 4 claimed that the construction on D-55 and D-56 was carried out simultaneously. Even during cross-examination of PW3, defendant no. 1, 2 and 4 tried to set up a case that construction on both plots took place simultaneously. However, in his cross-examination, DW1 admitted that construction of school took place in a phased manner such that firstly construction was completed on one plot and then on the other thereby raising serious doubt regarding the truthfulness of the manner and time of construction upon plots, as claimed by them.
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46. DW1, in his examination-in-chief, himself deposed that in 1996, he sold a portion of the said land to 15-20 people including the plaintiff. In view of the fact that defendant no.1 admits the purchase of a residential plot by the plaintiff, and the plaintiff is agitating his right to way from the place where gate is installed by the defendants, the suit cannot be stated to be without cause of action.
47. PW1/plaintiff did not prove site plan Mark C by examining the draftsman or even proving that it was in respect of the school (as Mark C mentions address at the top as D-75 and not D-55 and D-56). PW1 also didnot prove photographs Ex.PW1/A to Ex.PW1/C as he neither filed the original thereof nor produced foundational evidence justifying production of secondary evidence by him. However, during cross-examination, DW1 himself admitted the photographs of the school building main gate as well as the gali as Ex.DW1/X1, Ex.DW1/X2 and Ex.DW1/X3, thereby leaving so ambiguity regarding the layout of the buildings, the connecting corridor, the gate and gali.
48. DW1 specifically deposed that a small gate (installed within main gate) remains open at all the times, and whenever any resident comes with his own vehicle, the guard on duty opens the main gate and closes the same after passing of the vehicle. Photographs on record also show that the street where gate is installed, blocks the way of residents of the street. Defendant has failed to produce any sanction plan or permission with respect to installation of the said gate.
49. Plaintiff, who is resident of that street, has a right to pass through the street which leads to main road. The fact that a provision Page No. 18 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 for passing through the gate has been made by the defendants implies that they recognize the right of passage of the residents including the plaintiff. Having the right of way, plaintiff cannot be left at the mercy of the guards of defendants for exercising his right to passage.
50. Though DW1 has deposed that the gate is installed and guard is deployed by the school for the safety of the students and the residents residing at the backside of the school building, as stated above, plaintiff being a resident of that locality and occupying his property in his own right cannot be left at the mercy of the defendants and cannot be dictated as to how and when the gate would be opened. Besides, safety of the students is not compromised by the opening or closing of the gate as the photographs on record reveal that the entrance to D 55 and D-56 are separate (from within the passage) and both entrances have gates with iron grills and locks to ensure safety during school hours. There is no playground, common area, canteen, etc. in the space outside the two buildings, which the students could be using during school hours that requires to be secured by the main gate.
51. While defendants had argued that the passage is on private land, and that they have exclusive ownership over it, the question whether the passage is on private land of defendants or government land is not relevant for the purposes of this suit as DW1 has himself deposed that the passage is common and all residents of the locality are using the same. Ownership of DW1 over plot no. 55 & 56 does not entitle him to close the common passage, which he admits, is used by residents of that locality. Also, as discussed above, till 2007 atleast, when building plan Ex.DW1/3 was submitted, the gate was not in existence and the Page No. 19 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 passage was freely used by the all residents. Accordingly, it is held that plaintiff has cause of action and locus-standi to maintain the present suit, and the passage in question is a common passage.
Issue is answered accordingly against the defendants, and in favour of the plaintiff.
Issue No.2 Whether the suit is bad for mis-joinder of parties? OPD
52. Onus of proof of this issue is on the defendants. Defendant no.1 has taken a preliminary objection that the suit is bad for misjoinder of parties in as much as defendant no. 2 has nothing to do with the school, school management or the land in question.
53. Plaintiff/PW-1 has alleged that defendants no.1 & 2 are father and son, and testified that despite objections raised by the plaintiff and other residents of the locality, they raised illegal and unauthorized construction being influential persons of the locality. It is also alleged that defendant no. 1 & 2 deputed a guard on the gate installed at the main entrance of the street, and also threatened the plaintiff with dire consequences. In this regard, plaintiff proved complaints Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Mark A and Mark B. Although mode of proof thereof was objected by the defendants during evidence of PW1, these are admissible in evidence as Ex.PW1/E and Mark A were subsequently proved by PW6, and Mark B was proved by PW5. Also, original acknowledgment of Ex.PW1/D and Ex.PW1/F were produced during evidence by PW1, and subsequently PW4 and PW2 respectively deposed that the respective original record had been destroyed.
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54. Allegations of the plaintiff against defendant no.2 are specific. Defendant no.2 did not enter the witness box to refute the allegations. Rather, only defendant no.1 examined himself as DW1 and stood in the witness box on behalf of defendant no.2 as well.
55. In his affidavit, DW1 did not depose anything in respect of the allegations made against defendant no.2. The onus to prove that the suit of the plaintiff is not maintainable against defendant no.2 was on the defendants but no cogent evidence has been brought on record to refute the allegations raised against defendant no.2. As such, there is no basis to conclude that suit is not maintainable against defendant no.2.
Accordingly, issue stands decided against defendants no. 1 & 2 and in favour of the plaintiff.
Issue No.3 Whether the suit of the plaintiff is barred under Order 1 Rule 8 CPC and Section 91 of CPC? OPD
56. Onus of proof of this issue is on the defendants. Defendant no. 1, 2 and 4 have claimed that the plaintiff has filed the present suit in a representative capacity without fulfilling the requisites of Section 91 of CPC and Order I Rule 8 CPC, and obtaining the leave of the court as required. However, no evidence has been led by the defendants to establish that the present suit has been filed by the plaintiff as a representative suit.
57. Pleadings and evidence led by plaintiff indicate and establish that the plaintiff, being a resident of the locality and aggrieved by the Page No. 21 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 installation of gate and other unauthorised construction by the defendants, has approached the court in his personal capacity for uninterrupted right to passage and out of safety concerns due to unauthorized construction on the passage. Therefore, the provisions of Order I Rule 8 CPC or section 91 CPC would not be attracted.
Accordingly, the issue stands answered against the defendants, and in favor of the plaintiff.
Issue No.4 Whether the present suit is barred by limitation? OPD
58. The onus to prove that the suit is barred by limitation is on the defendants. It was contended by the defendants that all construction in question was carried out prior to 2007 and that the plaintiff deliberately did not specify the date of construction of D-56 and the common roof connecting the two plots such that suit does not get barred by limitation.
59. While it is true that the exact date of alleged unauthorized construction has not been specified in the pleadings, the plaint as well as affidavit of evidence Ex.PW1/1 did state that the same was a recent occurrence. During cross-examination, PW1 stated that the construction over the passage was raised by defendant no. 1, 2 and 4 approximately six months prior to filing of the suit, and was started approximately one year prior to filing the suit, thereby claiming the construction to have commenced a year prior and completed six months prior to the filing of the suit. He also denied the suggestion that it was concluded in 2007 itself. PW2 also deposed during cross- examination that construction commenced in 2012.
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60. Defendants did not lead any evidence to establish as to when the gate or construction on D-56 or common roof/construction thereon was raised. Infact, during cross-examination, DW1 claimed that the main gate had been in existence since 2002-2003 while he had otherwise simply maintained that the gate was installed prior to 2007, and also deposed that first phase of construction of school commenced in 2002-03. Having main gate installed on the passage prior to construction of the building does not seem probable or believable. Even otherwise, the gate is not specified in building plan Ex.DW1/3 pertaining to 2007. As held in para 44 above, the construction on D-56, the corridor and the main gate were installed after 2007, thus refuting the claim of the defendant that all construction pertains to prior to 2007.
61. Plaintiff cannot be expected to prove a negative fact that no gate/corridor existed prior to 2012 and the burden was of defendants to prove that the gate has been in existence since 2007, however, they failed to do so.
62. As per the provisions of the Limitation Act, 1963, period of limitation in the present case is three years. In view of the evidence led by the plaintiff, and absence of any proof that alleged unauthorized construction in question was concluded by the defendants prior to three years of institution of the present suit, the suit of the plaintiff seeking relief of mandatory injunction for removal of the gate and unauthorized common roof and construction thereon cannot be stated to be barred by limitation.
Accordingly, the issue stands decided against the defendants.
Page No. 23 of 29Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 Issue No.5 Whether the plaintiff has not approached the Court with clean hands and himself raised unauthorized construction on his property? OPD
63. Onus to prove that the plaintiff has not approached the court with clean hands, and has himself raised unauthorised construction on his property, is on the defendants. However, the defendants have not led any evidence to establish that the plaintiff has raised any unauthorized construction on his property, and in the absence of any such proof, the plaintiff cannot be stated to have approached the court with unclean hands.
Therefore, the issue stands answered against the defendants.
Issue No.8 Whether the plaintiff is entitled to decree of Permanent Injunction as prayed for in prayer clause (B) of the plaint? OPP
64. Onus to prove this issue is on the plaintiff. It is contended by the defendants that the entire construction including installation of the gate in question was done prior to the year 2007, and plaintiff has failed to examine any witness (except himself and his brother PW3) that defendants have raised any unauthorized construction. It is also submitted that even defendant no.3 (MCD), in its written statement, corroborated the version of defendants that no unauthorized construction was raised by the defendants and thus, the plaintiff is not entitled to relief of permanent injunction.
65. As discussed in issue no. 1 above, the defendants themselves relied upon a building plan, Ex.DW1/3, which was submitted by them with the MCD in 2007 seeking approval of the construction and also Page No. 24 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 upon School Building Fitness Certificate Ex.DW1/4 issued by the MCD in 2007 certifying its structural safety and giving its no objection. The construction which is in existence as on date including construction of D-56, the gate in question as well as the basement was not in existence in 2007 as it does not feature in Ex.DW1/3. Ex.DW1/4 also mentions the address of the school where inspection was carried out to be D-55. Therefore, it is evident that after the submission of Ex.DW1/3 and issuance of Ex.DW1/4, the defendants have raised further substantial construction in the property.
66. The defendants have not brought any document on record to establish that the construction raised after 2007 was carried out by them after taking requisite permissions from the municipal authority. It is trite that no one in Delhi is permitted to raise any construction without seeking due permission from the lawful authority. Schools are the building blocks of a nation and the students are its future. Being a school, the duty of defendants to obtain all requisite building and operational permissions and certificates becomes all the more significant. The same is not only a legal duty but also a moral and fiduciary duty.
67. Plaintiff has sought relief to restrain the defendants from raising any construction or installing any gate or obstruction at the entrance of, or in, the common passage/approach road to the house of the plaintiff and other houses of the street.
68. In view of the fact that the defendants have already raised construction without seeking requisite permissions, the apprehension Page No. 25 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 of the plaintiff that the defendants may further raise construction obstructing his passage by constructing similar corridors, gate or other unauthorized construction without seeking requisite approvals/ permissions in future is not unfounded, and has sound basis.
69. Thus, in the light of above discussion, plaintiff is entitled to the relief of permanent injunction as sought.
The issue stands decided in favour of the plaintiff, and against the defendant no. 1, 2 and 4.
Issue No.6 Whether the suit property is duly protected under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 and therefore the plaintiff is not entitled to decree of Mandatory Injunction in respect of unauthorized construction and illegal common roof and construction as claimed by the plaintiff? OPD & Issue No.7 Whether the suit property is duly protected under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 and therefore the plaintiff is not entitled to decree of Mandatory Injunction in respect of unauthorized construction and illegal gate installed at the common passage as claimed by the plaintiff? OPP
70. Both issues involve common discussion and are being dealt with together. Defendants are seeking protection under the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 as per which status quo in respect of construction up to 8 February 2007 is to be maintained. Under the said Act No. 5 of 2011, Page No. 26 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 no exception was carved out for streets, lanes, footpath or parks as in terms of its section 2(c), 'encroachment' has been defined to mean 'unauthorised occupation of Government land or public land by way of putting temporary, semi-permanent or permanent structure for residential use or commercial use or any other use'.
71. As per findings in issue no.1 and 4 above, defendants no.1, 2 and 4 did not obtain any sanction/permission qua construction on plot no. D-56 or construction of the common roof and construction thereon or for installation of gate at the common passage. Thus, the aforesaid construction is unauthorized. Defendants no.1, 2 and 4 have also failed to prove that the unauthorized construction in the form of gate installed at the common passage, connecting corridor/roof between D-55 and D-56, and construction thereupon was carried out prior to 2007.
72. As the defendants have not brought any evidence on record to establish that the construction was raised prior to 08.02.2007, in absence of any such evidence, no protection can be extended to unauthorised construction raised by the defendants under provisions of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2011, as the same is not applicable.
These issues are accordingly decided against the defendants.
Issue No.9 Relief
73. In the light of above discussion, the suit stands decreed for relief of mandatory and permanent injunction, with costs, in favour of Page No. 27 of 29 Pradeep Kumar Dubey v. Surjeet Kasana & Ors. CS SCJ 83908/2016 24.12.2025 plaintiff and against the defendants.
74. Defendants no. 1, 2 and 4 are hereby directed (i) to demolish and remove the unauthorized common roof/corridor and construction thereon connecting the buildings situated on opposite plots i.e. Plot Nos. D-55 and D-56, Badarpur Extension, New Delhi-110044 above the common passage, and (ii) to remove the unauthorized and illegal gate installed at the entrance of the common passage/approach road to the house of the plaintiff i.e. D-75, Badarpur Extension, New Delhi-110044, as shown at point A in Ex.DW1/2.
75. In case defendants no. 1, 2 and 4 fail to comply with the aforesaid directions, defendant no. 3/MCD shall carry out the necessary demolition/removal action as directed above as per law.
76. Defendants no. 1, 2 and 4 are also restrained from raising any construction or installing any gate and/or creating any obstruction at the entrance of or in the common passage/approach road to the house of the plaintiff i.e. D-75, Badarpur Extension, New Delhi-110044, as shown in Ex.DW1/X3.
77. It is clarified that since aforesaid unauthorized construction pertains to prior to June 2014, demolition action, if any, shall be carried out in accordance with laws including the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2023, and such other laws, rules and regulations and fire and building safety norms as applicable from time to time.
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78. Decree Sheet be drawn accordingly.
79. File be consigned to Record Room after due compliance.
Digitally signed by NEHA NEHA Date:
PRIYA PRIYA 2025.12.24 16:02:29 +0530 NEHA PRIYA Senior Civil Judge-cum-Rent Controller South District, Saket Court, New Delhi/24.12.2025 All the twenty nine pages of this judgment have been checked and signed by me. Digitally signed by NEHA NEHA Date:
PRIYA PRIYA 2025.12.24 16:02:38 +0530 NEHA PRIYA Senior Civil Judge-cum-Rent Controller South District, Saket Court, New Delhi/24.12.2025 Page No. 29 of 29