Delhi District Court
Zile Singh vs Satish Yadav on 15 May, 2021
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
RCA DJ No. 82/19
CNR No. DLWT010049792019
In the matter of :-
Zile Singh
S/o Sh. Shiv Lal
R/o WZ-556-557, Village Madipur
New Delhi- 110063.
.......... Appellant
Vs.
1. Satish Yadav
S/o Sh. Hari Ram Yadav
R/o WZ-554, Village Madipur
New Delhi- 110063.
2. South Delhi Municipal Corporation
Through Dy. Commissioner (SDMC)
A.E. Building, Vishal Enclave, Rajouri Garden
New Delhi- 110027.
3. S.H.O.
P.S.- Punjabi Bagh
New Delhi- 110026.
.......... Respondents
APPEAL U/O 96 CPC
AGAINST JUDGEMENT & DECREE DATED 20.05.2019
PASSED BY LD. TRIAL COURT
Date of institution : 02.07.2019
Judgement Reserved on : 27.04.2021
Date of Decision : 15.05.2021
Zile Singh Vs. Satish Yadav Page No. 1 / 16
JUDGEMENT
1. Present appeal was filed by appellants namely Zile Singh against respondents namely Satish Yadav, South Delhi Municipal Corporation and S.H.O., thereby challenging the judgement and decree dated 20.05.2019 passed by Ld. Trial Court in civil suit no. 9225/16 titled as Zile Singh Vs. Satish Yadav & Ors.
2. Appellant herein was plaintiff and respondents herein were defendants before Ld. Trial Court. In order to avoid any confusion, parties will be referred with the same designation with which they were referred before Ld. Trial Court, in my subsequent paragraphs.
3. Record of Ld. Trial Court reveal that plaintiff had filed the suit for permanent and mandatory injunction alleging that H. No. WZ 556 & 557, Village Madipur, Delhi, belongs to him, wherein, he was residing as said houses were his ancestral properties. Defendant no. 1 namely Satish Yadav was the neighbour of plaintiff. Defendant no. 1 was constructing his house near the houses of plaintiff and had encroached upon 4 ft wide terrace upon the street which was hardly 6ft wide. Defendant no. 1 was the owner of H. No. 554, Village Madipur, Delhi. Said encroachment had resulted in a situation wherein plaintiff could not go inside his house. Said encroachment by defendant no. 1 started since 28.01.2016. As such, defendant no. 1 had constructed terrace/ balcony/ chajja with pillars in the street. Despite various requests, defendant no. 1 did not stop the said illegal construction. Plaintiff made complaints to defendant no. 2 and 3 on 29.01.2016 and 30.01.2016, but of no avail. Defendant no. 1 Zile Singh Vs. Satish Yadav Page No. 2 / 16 threatened plaintiff that plaintiff should abstain from complaining any authority regarding the activities of defendant no. 1. Defendant no. 1 had boasted that one Surender Yadav, SHO, was his relative and as such, police cannot do any help to plaintiff. The illegal construction done by defendant no. 1 as such obstructed the sunlight air and other natural resources as house of plaintiff was located in the last part of the street. Defendant no. 1 had covered almost complete street in front of his house. Since, defendant no. 1 was not stopping the said construction so, plaintiff moved the court by filing the present suit. In the prayer clause, plaintiff sought following reliefs from the court :-
"i) To pass a decree of mandatory injunction in favour of plaintiff and against the defendants, thereby directing defendant no. 2 and 3, their officials, agents etc. to demolish the illegal and unauthorized construction raised by defendant no. 1 in the street of front and back side of property no.
WZ-554, 556 & 557, Village Madipur, Delhi, as shown in the site plan.
ii) To pass a decree of permanent injunction in favour of plaintiff and against defendants, thereby directing defendant no. 1, his legal heirs, associates etc. from raising illegal construction in the street of front and back side of property no. WZ-554, 556 and 557, Village Madipur, Delhi as shown in the site plan."
Zile Singh Vs. Satish Yadav Page No. 3 / 164. Defendant no. 1 filed Written Statement-cum-Counter Claim, in which, he took preliminary objections viz., that plaintiff had concealed material facts from the court; that site plan filed by plaintiff was false; that true location of house of defendant no. 1 i.e. H. No. 554, was not properly mentioned in the plaint and that defendant no. 1 had not constructed any chajja/ balcony towards the western side of H. No. 554. He explained that plaintiff had covered whole of the gali between H. No. 554 and H. No. 557 by putting a balcony/ chajja in H. No. 557. Both houses no. 554 and 557 belong to plaintiff. Further, plaintiff had covered the sewer line of MCD, as a result of which, defendant no. 1 was facing hardship to connect his sewer line from his house bearing no. 554. The width of the gali was not 6 ft. between house no. 554 and 557, rather it was 4 ft. As such, plaintiff had covered 4 ft. gali, one year back when he constructed his house bearing no. 557. So, chajja on the first floor of house no. 557 was constructed by plaintiff towards eastern side and that is why, plaintiff had covered whole of the gali. He prayed that suit lacked cause of action and must be dismissed. On merits, he refuted the averments of the plaint and reiterated the aforesaid preliminary objections. Same are not repeated here for the sake of brevity.
5. Defendant no. 1 also stated that his house on property no. 554, was an old construction about 100 years old, so it was in bad condition. He denied that he had made any construction illegally in the gali as alleged in the plaint. As per him, his balcony towards north side of house no. 554 was 3 ft. wide and it was constructed on his private land. Width of the gali towards the northern side of house no. 554 was about 7 ft. but Zile Singh Vs. Satish Yadav Page No. 4 / 16 defendant no. 1 had left 3 ft. wide land out of his property no. 554 and in the same way 2 ft. wide private land had been left out of property no. 554 towards southern side of said house. It was plaintiff who had constructed pucca chabutra thereby blocking the sewer line of defendant no. 1. Based on said reply, he prayed for dismissal of suit of the suit.
6. In the counter claim, defendant no. 1 had claimed that plaintiff had constructed a balcony and a latrine/bathroom of first floor of property no. WZ-557, by covering 3 ft. wide area of common gali, which was illegal in nature. The pucca chabutra in the common gali, constructed by plaintiff on the manhole of sewer line was illegally done. Further, he claimed that plaintiff had raised stairs on the north side of property no. WZ-554, belonging to defendant no. 1 and thus in that manner had made illegal encroachment in the common gali. Based on said averments, he prayed that decree of mandatory injunction may be passed in his favour and against plaintiff, thereby directing plaintiff to remove entire illegal and unauthorized construction. He further prayed that defendant no. 2 may be directed to demolish entire illegal and unlawful construction done by plaintiff over the common gali in house no. 556 and 557 as shown in the site plan annexed with his counter claim. He also prayed that defendant no. 2 be directed to remove/demolish all the encroachment from the common gali as shown in the yellow colour in the site plan.
7. Defendant no. 2 filed Written Statement taking preliminary objections viz.; that suit was barred U/Sec. 477 and 478 of DMC Act, that suit lacked cause of action that property no. WZ-554, Madipur Zile Singh Vs. Satish Yadav Page No. 5 / 16 Village, New Delhi was inspected by the official of defendant no. 2 and it was found that said construction was being done after demolishing old structure without any sanctioned building plan. So, said property was booked U/Sec. 343 and 344 of DMC Act on 09.02.2016. In this regard, 'work stop notice' U/Sec. 344 (ii) of DMC Act, was sent to police station concerned. As such, action was taken against said property as per provision of DMC Act. On merits, case of the plaintiff was challenged on the basis of denial.
8. Plaintiff filed Replication to the Written Statements of defendant no. 1 and 2 by denying the version of said defendants and reiterating his version as mentioned in the plaint. Same needs no repetition.
9. Plaintiff filed Written Statement in response to the counter claim of defendant no. 1 in which, he denied the version of defendant no. 1 and reiterated his version as mentioned in the plaint. Same needs no repetition.
10. Defendant no. 3 despite service neither filed any Written Statement nor contested the matter.
11. After pleadings of the parties, following issues were settled :-
i) Whether the suit is barred by provision of Section 477 & 487 of DMC Act ? OPD 2.
ii) Whether the plaintiff has no cause of action against the defendants ? OPD 1 & 2.Zile Singh Vs. Satish Yadav Page No. 6 / 16
iii) Whether the suit of the plaintiff is not maintainable ? OPD 1.
iv) Whether the defendant is entitled to the decree of mandatory injunction as prayed in Counter Claim ? OPD.
v) Whether the defendant no. 1 has no cause of action against the plaintiff ? OPP.
vi) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for ? OPP.
vii) Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for ? OPP.
viii) Relief.
12. Matter was then fixed for plaintiff's evidence.
13. Plaintiff examined his wife Smt. Angoori Yadav as PW2, who tendered her evidence by way of affidavit Ex.PW2/A in which, she reiterated the contents of the plaint. Same needs no repetition. She relied upon documents viz. Site Plan- Ex.PW1/1, Photographs- Ex.PW1/2 to Ex.PW1/5, Copy of application dated 29.01.2016- Ex.PW1/6, Copy of Application dated 30.01.2016- Ex.PW1/7 and Copy of application sent to MCD- Ex.PW1/8.
14. Plaintiff examined himself as PW1 and tendered in evidence his affidavit Ex.PW1/A. He faced cross-examination partially. During course of recording of his cross-examination, he filed special power of attorney in favour of his wife PW2- Smt. Angoori Devi and abstained from facing complete cross-examination by citing health issues. So, his evidence, Zile Singh Vs. Satish Yadav Page No. 7 / 16 was not completed as he did not face complete cross-examination. After examining his wife, plaintiff's evidence was closed and matter was fixed for defendant's evidence.
15. Defendant no. 1 examined himself as DW1 and tendered evidence by way of affidavit Ex.DW1/A, in which, he reiterated the contents of written statement. Same needs not repetition. He relied upon the documents i.e. Site Plan- Ex.DW1/1 (colly), Photographs- Ex.DW1/2 and Copy of complaint dated 12.02.2016- Ex.DW1/3. After examining himself, defendant no. 1 closed his evidence.
16. Defendant no. 2 and defendant no. 3 did not lead any evidence.
17. Subsequently, matter was fixed for final arguments. After hearing final arguments, matter was fixed for judgment.
18. Ld. Trial Court dismissed the suit of plaintiff and counter claim of defendant no. 1 vide impugned judgment and decree dated 20.05.2019.
19. Plaintiff has challenged the said judgement and decree by way of present appeal.
20. In the grounds of appeal, plaintiff has claimed that Ld. Trial Court had not passed impugned judgment and decree as per law. He claimed that Ld. Trial Court had not appreciated the pleadings and evidence led by the parties correctly and had come to the wrong conclusion.
Zile Singh Vs. Satish Yadav Page No. 8 / 1621. After hearing arguments on present appeal, matter was fixed for judgment.
22. Plaint formed the basis of this litigation. A closer look of the plaint is required for appreciating the grievances of plaintiff.
23. In the plaint, plaintiff has claimed that defendant no. 1 was constructing his house in the neighbour of plaintiff and had encroached upon 4 ft. wide terrace upon the street which was hardly 6 ft. wide. In support of said averments, plaintiff did not refer to any document. It was not clear as to on what basis, plaintiff had claimed that defendant no. 1 had encroached about 4 ft. vide terrace in the street and width of said street was 6 ft. The site plan filed by plaintiff Ex.PW1/1 was bereft of any measurements. Plaintiff did not explain as to whether he had measured himself the said 4 ft. wide encroachment on the street or it was done by somebody else. Plaint was silent with regard to said aspect. Lack of details in that regard did not probablize the case of plaintiff.
24. Coupled with the same, plaintiff did not specify the details of his house bearing no. WZ 556 and 557, Village Madipur, Delhi, for showing the specific way to ingress and outgress in said properties. It was material omission on his part and plaintiff had claimed categorically that due to said illegal construction by defendant no. 1, he had stopped making ingress and outgress in his house. The site plan Ex.PW1/1 was silent with regard to specific details regarding the portion from which ingress and outgress in properties of plaintiff could be done. It again made the case of plaintiff vague and improbable.
Zile Singh Vs. Satish Yadav Page No. 9 / 1625. Plaintiff further claimed that due to said illegal construction done by defendant no. 1, sunlight, air and other natural resources were obstructed. He also claimed that his house was located in the last part of the street and defendant no. 1 had covered almost complete street in front of his house. Again, said averments were not supported by any detailed site plan. I failed to appreciate as to how sunlight, air and other natural resources were obstructed by defendant no. 1 based on site plan Ex.PW1/1.
26. Plaintiff further claimed that defendant no. 1 was raising illegal construction in a very fast speed, day and night. Again, plaintiff did not refer to any specific details of the persons who were so raising illegal construction at the instance of defendant no. 1 at the concerned site in question. Even otherwise, it was not the case of plaintiff that defendant no. 1 himself was doing illegal construction. Plaintiff referred to the photographs Ex.PW1/2 to Ex.PW1/5. Those photographs only indicated that some construction was being done by some persons but how those photographs linked defendant no. 1, was not proved by plaintiff.
27. The net result is that, contents of plaint lacked specific details and therefore, they did not probablize the case of plaintiff.
28. Plaintiff had the occasion to prove his case when this matter was fixed for plaintiff's evidence. He tendered in evidence his affidavit Ex.PW1 on 06.07.2017. He was cross-examined partially on that day. Subsequently, on 18.08.2017 plaintiff filed special power of attorney through his counsel in favour of his wife Smt. Angoori Yadav.
Zile Singh Vs. Satish Yadav Page No. 10 / 16Subsequently, on 15.11.2017, counsel for plaintiff submitted that plaintiff did not want to examine himself because of deafness. So, cross- examination of plaintiff was never completed.
29. The fact that plaintiff had faced partial cross-examination and in between abstained from facing complete cross-examination indicated that he shied away from facing cross-examination. The said conduct did not inspire the confidence of this court. More so where, in special power of attorney executed on 17.08.2017, it was noted that plaintiff was not able to attend court proceeding due to old age and illness, which was contrary to the submission made by his counsel on 15.11.2017, wherein, it was claimed that plaintiff did not want to cross-examine himself due to deafness. Now, whether plaintiff was deaf or ill with some other diseases was not clear. Plaintiff did not file any medical record in support of his said claims. The special power of attorney Ex.PW1/1A was not supported with any medical record of plaintiff. The said attorney was not witnessed by anybody and the 'column witness' was blank. In such circumstances, the only possibility which I see was that, plaintiff did not want to face acid test of cross-examination for proving his veracity. Since, plaintiff had claimed equitable reliefs from the court, so he should have shown equity to the court by removing aforesaid doubts. He did not do so and therefore, his incomplete evidence only improbablized his own case.
30. Moving further, plaintiff had examined Smt. Angoori Yadav, who was his wife. This witness simply reiterated the contents of the plaint in her examination-in-chief Ex.PW2/A. She did not mention in her affidavit Zile Singh Vs. Satish Yadav Page No. 11 / 16 as to how she came to know about the facts mentioned by her in her affidavit. It was not her case that she had personal knowledge about the facts mentioned therein. At the end of the day, she was an attorney of plaintiff and she could not take the place of plaintiff with regard to the facts, which were within the personal knowledge of plaintiff. Those facts included the allegations of illegal construction by defendant no. 1 leading to obstruction of natural resources used by plaintiff and with regard to extent of said illegal construction in the street. Details of the said aspects, could have been answered by plaintiff himself. His attorney i.e. his wife as such could not have answered those questions in his place. Reliance in this case is placed upon the case law titled as Janki Vashdeo Vs. Indusind Bank Ltd., AIR 2005 SC 439
31. PW2 in her testimony as such failed to remove the aforesaid shortcomings. She deposed that she had no sanctioned site plan of house no. 557, which indicated that house in which she was living, was illegally constructed. If that is so, then Ld. Trial Court rightly concluded that plaintiff had not shown equity to the court by not raising his own house legally.
32. PW2 admitted the fact that there was no chajja or window in the house of 554 towards her house bearing no. 556-557. That deposition as such contradicted the claims of plaintiff made in plaint wherein, plaintiff had stated that chajja/ balcony constructed by defendant no. 1 as such had obstructed the sunlight, air and other natural resources of plaintiff's house. Said contradiction did not probablize the case of plaintiff.
Zile Singh Vs. Satish Yadav Page No. 12 / 1633. PW2 further conceded that said house bearing no. 556 was constructed about 60 years back and there was no sanctioned plan for the said house from MCD. Again, once plaintiff had moved the court seeking equitable reliefs, he should have shown equity to the court by showing that the house in which, he was living was living constructed. It was not done by plaintiff, based on the testimony of PW2 and therefore, Ld. Trial Court rightly dismissed the suit of plaintiff.
34. PW2 was cross-examined by defendant no. 2 on 15.05.2018. She was cross-examined by defendant no. 1 on the same day. In the cross- examination which was done by defendant no. 1, she deposed that no chajja/ window in house no. 554 was constructed towards her house bearing no. 556-557. Surprisingly, counsel for defendant no. 2 suggested to this witness that defendant no. 1 had raised chajja towards gali and said chajja had stopped air and light in the property of plaintiff. It indicated the possibility of collusion between plaintiff and defendant no. 2 as defendant no. 2 in the written statement had denied the construction of chajja but surprisingly had suggested construction of said chajja to PW2. I failed to understand as to why such suggestions were given to PW2 in the wake of pleadings of defendant no. 2.
35. Coupled with the same, PW2 did not remember the year when alleged unauthorized construction was being raised by defendant no. 1. She was not aware about the area of house no. 554 belonging to defendant no. 1. She did not remember the exact year when house no. 557 was purchased by plaintiff from Amar Singh Yadav, who was Zile Singh Vs. Satish Yadav Page No. 13 / 16 brother-in-law of PW2. She was not having precise knowledge as to whether Amar Singh Yadav was or was not registered owner of property no. 557. The net result is that, her testimony revealed that she lacked knowledge regarding relevant facts. As an attorney, she had falsely sworn her affidavit Ex.PW2/A to the effect that she was well conversant with the facts and circumstances of this case. Therefore, testimony of PW2 was neither trustworthy nor reliable.
36. Plaintiff through the testimony of PW2 had placed on record site plan Ex.PW1/1. I have already appreciated the veracity and relevance of said site plan in my preceding paragraphs. Suffice, it is to say that no executable decree can be passed based on said site plan. I discarded it accordingly.
37. Plaintiff filed photographs Ex.PW1/2 to Ex.PW1/5. I have already appreciated the relevance of said photographs in my preceding paragraphs. Same needs no repetition.
38. Plaintiff filed his complaints Ex.PW1/6 to Ex.PW1/8. In all those complaints, plaintiff nowhere stated that due to illegal construction done by defendant no. 1, air, sunlight and other natural resources were obstructed in his house. Infact, in the said complaints, it was noted that illegal construction done by defendant no. 1 had resulted in a situation wherein, house of plaintiff i.e. WZ 557, Madipur Village, New Delhi, was in danger. I failed to understand as to what plaintiff meant by "his house in danger". The said aspect was not mentioned in the plaint and Zile Singh Vs. Satish Yadav Page No. 14 / 16 in the evidence led by plaintiff. The said complaints did not refer to house no. WZ-556, Village Madipur, Delhi, which is mentioned in the plaint and the evidence led by plaintiff. Those complaints were vague in nature as they did not specify the extent of illegal construction allegedly being done by defendant no. 1. Therefore, I discarded those complaints as they did not probablize the case of plaintiff.
39. The net result is that testimony of PW2 and evidence led by PW2 did not probablize the case of plaintiff. Ld. Trial Court rightly discarded her testimony and also the partial/incomplete testimony of PW1.
40. So far as defendant no. 1 is concerned, he did not admit the case of plaintiff in his testimony. He refuted the case of plaintiff which was put to him by way of suggestions. No suggestion was put to him to the effect that he had made illegal construction in the street by encroaching upon that street to the extent of 4 ft. No question was put to him by plaintiff with regard to the manner in which sunlight, air and other natural resources in the house of plaintiff based on his illegal construction. He was cross-examined with regard to location of properties of plaintiff and defendant no. 1. So, his cross-examination was done by plaintiff with respect to irrelevant aspects. His testimony as such did not probablize the case of plaintiff.
41. Before coming to the conclusion, I must mention here that case of plaintiff failed for another reason. The reason is that case of plaintiff was based on illegal construction allegedly being done by defendant no. 1 on Zile Singh Vs. Satish Yadav Page No. 15 / 16 the government land. The case was also based on the claim that said illegal construction was causing obstruction to sunlight, air and other natural resources, coming in the property of plaintiff. Said averments could have been probablized by plaintiff by examining concerned officials of MCD/ defendant no. 2. All the record concerning illegal construction in the area where said illegal construction was allegedly being done by defendant no. 1, falls under the domain of defendant no. 2. So, defendant no. 2 is the concerned authority which could have probablized the case of plaintiff. As such, plaintiff did not examine any of the witnesses from the office of defendant no. 2. Infact, Written Statement of defendant no. 2 was based on denial of aforesaid claims, raised by plaintiff. Said response of defendant no. 2 did not probablize the case of plaintiff. It means that concerned authority which could have probablized the case of plaintiff, did not support the case of plaintiff. In such circumstances, plaintiff did not prove his case. That is another reason why I found that plaintiff was not entitled to any reliefs.
42. The net result is that plaintiff failed to prove his case based on preponderance of probabilities. Ld. Trial Court rightly dismissed the suit of plaintiff. All the issues were rightly decided by Ld. Trial Court. Appeal accordingly stands dismissed. No order as to cost. Decree-Sheet be prepared, accordingly. Trial Court Record be sent back alongwith copy of this judgement.
Announced in the open Court [PRASHANT SHARMA]
Dated : 15.05.2021 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Zile Singh Vs. Satish Yadav Page No. 16 / 16