Delhi District Court
Kamla Devi vs Laxmi Devi And Ors on 24 August, 2023
Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-017898-2023
RCA No.:- 12/2023
RCA DJ No.:- 79/2023
IN THE MATTER OF :-
1. Kamla Devi
W/o Lt. Sh. Kishan Singh
2. Kishan Singh (since deceased through LR's)
a. Gyan Prakash (Son)
b. Kewal (Son)
c. Jitender (Son)
d. Prakash (Son)
e. Anil (Son)
f. Asha (Daughter)
g. Sapna (Daughter)
All R/o H. No. 10894, Gali Numberdar
Wali, Motia Khan, Sadar Thana,
Delhi-110055 ....Appellants
Versus
1. Smt. Laxmi Devi
W/o Lt. Sh. Than Singh
2. Sh. Narian Singh
S/o Lt. Sh. Than Singh
Both R/o H. No. D-707, Gali No.12,
Mangol Puri, Delhi-110083.
RCA NO. 79/2023 Page 1 of 16
Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
3. Smt. Rani
W/o Lt. Sh. Kuldeep
R/o H. No. 11034, Gali Pipal Wali,
Motia Khan, Near Sadar Thana,
Delhi-110055
4. Station House Officer
Police Station Sadar Bazar
Delhi-110006
5. Delhi Development Authority
Land & Management Department
Through its Commissioner
At Block-B, 3rd Floor, Vikas Sadar,
INA New Delhi-110023
6. North Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Minto Road,
New Delhi-110001 ....Respondents
REGULAR CIVIL APPEAL ON BEHALF OF THE APPELLANTS UNDER SECTION 96 OF CPC READ WITH ORDER XLI CPC AGAINST THE IMPUGNED ORDER DATED 20.05.2023, PASSED BY THE COURT OF SHRI ANUJ KUMAR SINGH, ASCJ, CENTRAL, TIS HAZARI COURTS, DELHI IN CIVIL SUIT NO. 2761/2018, CASE TITLED AS "SMT. KAMLA DEVI & ANOTHER VS. LAXMI DEVI & OTHERS".
Date of institution of the Appeal : 07.06.2023
Date on which Judgment was reserved : 07.08.2023
Date of Judgment : 24.08.2023
RCA NO. 79/2023 Page 2 of 16
Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
::- J U D G M E N T -::
1. The appellants were the plaintiffs and the respondents were defendants before the Ld. Trial Court. Appellants and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. Succinctly, the present appeal has been preferred by the appellants against the order dated 20.05.2023, whereby the application filed by the respondents/defendants no. 1 to 3 under Order 7 Rule 11 CPC was allowed and the plaint was rejected.
PLAINTIFFS'/APPELLANTS' CASE :
2. Plaintiffs had filed the suit for permanent and mandatory injunction before the Ld. Trial Court against the defendants on the following averments:
(i). That on 25.07.2018, defendant nos.1 to 3 have started illegal and unauthorized construction and for that purpose the mason work has been start upon the government land/vacant land bearing no. 10917, Gali Numbardar Wali, Motia Khan, Sadar Thana, Delhi-
110055 (hereinafter called the suit property) without following the norms and rules of building bye laws.
(ii).That the plaintiffs have lodged complaint to the police at 100 number on 25.07.2018 at about 11:00 - 11:30 AM, but all in vain, as the defendant nos.1 to 3 are bent upon to raise illegal and unauthorized construction.
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(iii).That the police officials have not performed their duty properly as they have not informed the Municipal Corporation as well as concerned SDM in regard of the illegal and unauthorized construction from the hands of defendant no.1 to 3.
(iv).That the defendant no.1 to 3 have taken law in their hands, as they very well known about the factum that they do not have any document of title pertains to the suit property, which could established that they have any right upon the suit property, despite the knowledge that the land in question is government land, defendant nos.1 to 3 are doing illegal and unauthorized construction in collusion of the police officials as well as officials of the civic agencies.
(v).That the suit property is vacant Government Land and defendant nos.1 to 3 with their malafide intention have created scene and have tress-passed in the same for the purpose of illegal and unauthorized construction on the Government Land/suit property.
(vi).That on 26.07.2018 defendant nos.1 to 3 have visited the suit property and threatened the plaintiffs and their family members, if they will create any hindrance in erection of the building, they will kill the plaintiffs and their family members and also threatened for dire consequences.
(vii).That on 26.07.2018, the plaintiffs have lodged their resentment to the local police as well as civic agencies by way of speed post, but despite that no action has been taken against the defendant no.1 to 3.
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(viii).That on 19.09.2018, defendant nos.1 to 3 have visited the suit property and started raising illegal and unauthorized construction over the suit property and plaintiff no.2 came to the suit property and made a call at 100 number at about 10:30 AM and 02:00 PM and police officials came to the suit property at about 03:30 PM and police officials have taken the plaintiffs and defendants to the police station and thereafter police officials release both the parties without taking any legal action against the defendant no.1 to 3.
(ix).That the plaintiffs being law abiding citizen have informed the local police as well as civic agencies as they are residing in front of the suit property and duty bound to inform about the encroachment and illegal construction, which is going-on without any norms and rules of the building bye-laws.
(x). That the defendant nos.1 to 3 are doing illegal and unauthorized construction without any sanctioned plan, that is why the officials of civic agencies bound down to take action against them.
(xi).That the plaintiffs have no efficacious remedy except to approach the Hon'ble Court.
WRITTEN STATEMENT ON BEHALF OF DEFENDANTS/RESPONDENTS
3. Respondents/defendants no.1 to 3 had filed the Written Statement on the following averments:
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(i). That the present plaint is not maintainable as it discloses no cause of action as such the present suit is liable to be dismissed under Order 7 Rule 11 CPC.
The plaintiffs has no locus to file the present suit for mandatory and permanent injunction.
(ii). That the suit of the plaintiffs is barred under Specific Relief act as the plaintiffs have no personal interest in the matter.
(iii). That the present suit is nothing but abuse/misuse of the process of law. The previous suit was actively monitored by the present plaintiffs as they remained present on most of the date of hearings of the previous case.
(iv). That the present suit is bad for misjoinder of the parties in the earlier suit. In the earlier suit, Smt. Sudha, who had been residing at the first floor has not been arrayed in the present suit.
(v). That the plaintiffs have not approached to this Hon'ble Court with clean hands and have concealed and suppressed the material and true facts from the court in order to achieve their illegal designs. Hence, the present suit is liable to be dismissed.
4. Respondent/defendant no.5 had filed the written statement on the following averments:
(i). That the present suit of the plaintiffs is not maintainable in the eyes of the law as the land in question is a Govt. land and placed at the disposal of the defendant by virtue of Nazul Agreement 1937 and RCA NO. 79/2023 Page 6 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
Building Byes Law of defendant no.6 are applicant to the suit property.
(ii). That neither the plaintiffs nor defendants no. 1 to 3 have any right, title or interest in the suit land being the Govt. land.
(iii). That the plaintiffs do not disclose any cause of action in favour of the plaintiffs for filing the present suit against the defendants. Hence, the plaint is liable to be rejected under Order 7 Rule 11 CPC.
(iv).That the plaintiffs under the grab of false and frivolous suit are trying to mislead this Court with a view to get a favourable order.
(v). That the present suit is nothing but a mere an abuse and misuse of process of law and to waste the previous time of the Court and is based on false, frivolous and twisted facts. Hence, the suit of the plaintiffs is liable to be dismissed.
5. Respondent/defendant no.6 had filed the written statement on the following averments :
(i). That the suit of the plaintiffs is barred by the provisions of Section 477 and 478 of DMC Act for want of service of statutory notice upon the defendant /North DMC and as such the suit is not maintainable against the North DMC and same is liable to be dismissed.
(ii). That even otherwise, the suit of the plaintiff is not maintainable, in view of the facts that the suit property bearing no. 10917, Gali Numbardar Wali, RCA NO. 79/2023 Page 7 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
Motia Khan, Sadar Thana, Delhi was inspected on 25.09.2019 and during the inspection, no ongoing construction was noticed and some malba/ rubble is lying. The photographs of the property have been taken, which are enclosed with WS. A notice vide order dated 26.08.2019 was sent to the ADC (Land & Estates) NDMC with a request to ascertain whether the ownership of the suit property lies with the North DMC or not. In reply to the said note, it has been clarified that the suit property is not entered in the record of Land and Estate of the North Delhi Municipal Corporation. Copy of said communication is enclosed herewith.
(iii).That the suit of the plaintiff is without any cause of action against the defendant/ NDMC and the same is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC.
(iv).That the plaintiff has unnecessarily dragged the defendant into litigation. The plaintiff has also not come before the Court with clean hands and has concealed the material facts from this court as such the suit of the plaintiff is not maintainable and liable to be dismissed under Section 41 (i) of The Specific Relief Act 1963.
6. The suit filed by the plaintiffs/appellants was rejected vide order dated 20.05.2023 passed by the Ld. Trial Court whereby allowing the application filed by the defendants under Order 7 Rule RCA NO. 79/2023 Page 8 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
11 CPC. Being aggrieved by the said order, the present appeal has been preferred by the appellants.
7. In the aforesaid background, the following points for the determination arise for consideration in the present matter :-
(i) Whether the impugned order and decree is contrary to the law and facts on record?
(ii) Whether appellants are the neighbor of the respondents and entitled to institute the suit against the unauthorized illegal construction raised by the respondents?
8. Arguments were heard. Record perused.
FINDINGS AND CONCLUSION
9. It is urged on behalf of the appellants that the impugned order is illegal and contrary to the law and facts on the record because the Ld. Trial Court has wrongly assumed that the plaintiffs are not residing in instant neighborhood, where property of the respondents/defendants is situated. It is urged that as a matter of fact, suit property is situated just opposite the house of appellants/plaintiffs. He further argued that illegal construction raised by the defendants will cause hindrance in fresh air and sun light of the plaintiffs. It is further argued that plaintiffs have right to intervene in the illegal and unlawful activities of the defendants as despite the complaint to the civic authorities, who are hand in gloves with the defendants has failed to take any action. It is urged that Ld. Trial Court has failed to appreciate that the land in question belongs to Delhi Development Authority which fact is RCA NO. 79/2023 Page 9 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
mentioned in the written statement of respondent no.5. Reliance has been placed by the appellants on the judgment passed by Hon'ble Kerala High Court in case Saina V. Konderi, AIR 1984 KER 170, wherein it was held that a person, who is affected by neighbor's illegal construction which is in infraction of municipal regulation will have the locus to maintain a suit for perpetual injunction. It is argued that the law recognizes a citizen's right to institute a suit with a view to ensure effective implementation of the municipal regulations such as the building rules even in the absence of a specific personal injury to the person suing. Reliance is also placed on the judgment passed by the Hon'ble Andhra Pradesh High Court in Bhagwan Das v. Harish Chetwalt. It is further argued that the Ld. Trial Court has failed to appreciate the contentions of the appellants that father of the appellants had deposited the house tax for the superstructure in the year 1975. It is further argued that Ld. Trial Court has not appreciated that the defendants had not placed on record any document, which could show her entitlement upon the suit property as well as no approved site plan has been placed on record by the defendants.
10. Reply has been filed by the respondents stating that appellants have no cause of action against the respondents and the Ld. Trial Court had passed well-reasoned and well thought order based upon the facts and the judgments of the Hon'ble High Court and Hon'ble Apex Court. It is argued that the appellants have no locus standi to file present appeal as well as the suit against the answering respondents as the dwelling house of the appellants lie in the same locality of same status. It is contended that the present appeal is nothing but the misuse of judicial process and has been RCA NO. 79/2023 Page 10 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
filed with the sole motive to harass the answering defendants and to extort money from them. It is further argued that the appellants are the stranger to the suit property being merely neighbors and does not fall within the category of aggrieved person as they are strangers to the suit property. Reliance is placed on judgment passed in Ayaaub Khan Noor Khan Pathan Vs. The State of Maharashtra and Ors., Civil Appeal No. 7728 of 2012. It is argued that the appellant have not raised the issue whether their legal rights of the light and air or any other legal right is affected by the construction on the suit property by the defendants as prescribed under Section 15 of Easements Act. Reliance is placed on judgment passed by the Hon'ble High Court of Delhi in Rajendra Motwani and Anr. Vs. MCD and Ors., RSA No. 243/2007.
11. The suit had been filed by the plaintiffs/appellants before Ld. Trial Court for permanent and mandatory injunction whereby restraining the defendants no. 1 to 3 not to raise illegal and unauthorized construction upon the suit property, which is government land and also seeking directions against the defendant no.4 to take legal action against the defendants no. 1 to 3. Plaintiffs also prayed for directions to defendant no.6 to demolish the unauthorized, illegal and unlawful construction raised upon suit property.
12. Defendants no. 1 to 3 appeared and filed their written statement. Defendants no. 1 to 3 had contended that they had been residing in the suit property since long, however, when the whole property became inhabitable, the occupants wanted to reconstruct the whole property for the purpose of residence and demolished the whole structure. It is also stated on behalf of defendants that RCA NO. 79/2023 Page 11 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
property on which the plaintiff has constructed his house also belongs to the government, which fact has been concealed by the plaintiffs.
13. Defendant no.5 in his written statement had contended that suit is liable to be dismissed as the suit property being Nazul Land belongs to the government.
14. Defendant no.6 in his written statement had contended that suit filed by the plaintiff is barred by the provisions of Sections 477/178 of the DMC Act for want of service of statutory notice. Defendant no.6 further contended that during inspection of the suit property on 25.09.2019 and no on-going construction was noticed.
15. An application under Order 7 Rule 11 CPC had been filed by the defendants no. 1 to 3 contending that defendants are owner and in possession of the suit property since long and have inherited the property from their forefathers. However, since the property had become inhabitable, the same was demolished for reconstruction. It is also urged on behalf of defendants no. 1 to 3 that earlier a suit was filed Smt. Savitri Devi wife of late Sh. Than Singh for permanent injunction against the suit property claiming that she is co-owner of the property bearing no. 10917, which is the suit property. Said suit was dismissed vide cost vide order dated 09.05.2023. The plaintiffs are sister-in-law and brother-in-law of said Smt. Savitri Devi and the present suit has been filed in collusion with Smt. Savitri Devi with a view to harass the defendants no. 1 to 3. It was urged that the plaintiffs are the strangers to the suit property and being merely neighbour does not have locus to file the suit as no grievance has been raised by the RCA NO. 79/2023 Page 12 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
plaintiffs in the entire plaint. It had been argued that the plaintiff have not raised the issue whether their legal rights of the light and air or any other legal right is affected by the construction on the suit property by the defendants as prescribed under Section 15 of Easements Act. It was further contended that the plaintiffs have no personal interest in the suit property and neither the sufferer of any injury and therefore, they have no locus standi to file the present appeal as well as the present appeal.
16. Perusal of the record reveals that no reply has been filed by the plaintiffs to the application filed by the defendants no. 1 to 3. Ld. Trial Court has fell into error by holding that plaintiffs are not residing at the instant neighborhood where suit property is situated as memo of parties of the plaint shows that the plaintiffs are residing in the same locality where the suit property is situated. However, site plan which has been filed on record before the Ld. Trial Court by the plaintiffs does not show as to where property of the plaintiffs is situated. In the plaint, plaintiffs have shown themselves to be the resident of house no. 10894. The site plan filed alongwith the plaint does not show any house no. 10894. In the site plant an open plot has been shown encircled by red colour and in front of open plot, 1st floor plan is written and on the other side of the open plot, ground floor plan is written. Thus, site plan does not show the place where the property of the plaintiffs is situated. Thus, the site plan does not show the plaintiffs to be the neighbor of the defendant no.1 to 3. In the present appeal, the appellants have urged that their right of air and light will be affected by the alleged construction raised by the defendants no. 1 RCA NO. 79/2023 Page 13 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
to 3 on the suit property, however there is no such pleading in the entire plaint.
17. During the Course of the arguments, this Court has made specific query regarding the earlier suit for injunction filed by one Smt. Savitri Devi and the relation between the appellant and said Smt. Savitri Devi, however no clear reply has been given by the appellant. The contention of the plaintiff that since he resides in the same locality and therefore the very fact that the illegal construction has been carried in the suit property affects his legal right is not tenable, as the plaintiff has failed to show any injury being caused to his legal rights. Perusal of the plaint and judgment passed by the Ld. Trial Court shows that except for the averment that the plaintiff is residing in the same locality, the plaintiff has failed to show that any of his legal right has been affected. Though defendants no.1 to 3 has admitted that the plaintiff lives in the same locality, however the plaintiffs have failed to show that his house is situated opposite to suit property and they are neighbor of the defendant no.1 to 3. Plaintiff has also failed to show that any of his legal rights are affected, thus the plaintiff has no locus standi to file the suit for mandatory injunction. The judgments relied upon by the appellant are not applicable to the facts of the present case as in the present case, Respondent no.5 and 6 have argued that plaintiff has no locus to file the suit as he himself is an unauthorized occupant of the Govt. Land. Respondent no.5 had argued that on inspection, no ongoing construction was found at the site.
18. The Ld. Trial court has rightly relied upon the judgment passed by Hon'ble High Court in Rajinder Motwani vs. MCD RSA RCA NO. 79/2023 Page 14 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
No.243/17 dated 16.10.2017, wherein in para no. 8, the Hon'ble High Court has held as under
"an illegal construction in itself does not give any legal right to a neighbour. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of section 15 of the Easement Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easemenatry rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easement Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of section 15 and 33 of the Easement Act that right to easement of the appellants/plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the appellants/plaintiffs or the appellants/plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/own property."
19. It is no longer res integra that merely by virtue of being neighbor or resident of locality, a person does not become entitled to file a suit to restrain other from carrying out illegal construction. In order to have locus, the party filing the suit must show that by virtue of such construction any of his easementary right has been affected or that the infraction materially diminishes the value of the RCA NO. 79/2023 Page 15 of 16 Kamla Devi & Ors. Vs. Laxmi Devi & Ors.
property of such neighbor or causes any physical discomfort to him.
20. In view of the aforesaid discussion, this court does not find any infirmity in the judgment passed by the Ld. Trial Court.
21. In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The Regular Civil Appeal of the appellants are hereby dismissed.
B. The Parties shall bear their own respective costs.
22. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
23. Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 24th day of August, 2023.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi RCA NO. 79/2023 Page 16 of 16