Delhi District Court
Sh. Radhey Shyam S/O Late Sh. Pyare Lal vs Sh. Satish Kumar on 12 April, 2013
IN THE COURT OF MS. PRABHDEEP KAUR
CIVIL JUDGE : WEST DISTRICT
TIS HAZARI COURTS: DELHI
Suit No. 05/10
Sh. Radhey Shyam S/o Late Sh. Pyare Lal,
R/o H. No. WZ72,
Khampur Village,
New Delhi08.
..............Plaintiff
Versus
Sh. Satish Kumar, Sh. Anil Kumar and
Sh. Mukesh Kumar,
All S/o Late Sh. Ram Kishore,
R/o Village Khampur,
New Delhi08.
..........Defendants
Date of Filing : 13.09.2010
Date on which order has been reserved : 10.04.2013
Date of pronouncement of Judgment : 12.04.2013
Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 1/22
JUDGMENT
1. Plaintiff has filed the present suit for the following reliefs:
(a) To restrain the defendants, their employees, attorneys, servants, successors, assignees, legal heirs etc, permanently from encroaching any portion of the suit property bearing No. WZ72, Khampur Village, New Delhi08 as shown in dark blue color in the veranda and courtyard.
(b) Directions be issued to the defendants to immediately remove the plants placed at point A to A of the site plan of the suit property and be restrained from creating or causing any hindrance in veranda by putting plants at any other place in that area or by placing any other object in that area.
(c) To restrain the defendants, their employees, attorneys, servants, successors, assignees, legal heirs etc, from creating any disturbance in the peaceful living of the plaintiff in the suit property and further restrained from abusing or creating any threat for the plaintiff and his family members.
(d) To restrain the defendants, their employees, attorneys, servants, successors, assignees, legal heirs etc, from creating any hindrance in free egress and ingress of the plaintiff and his family members by any means in the veranda and courtyard of the suit property.
(e) Costs of the suit be also awarded in favour of the plaintiff.
2. Plaintiff's Version: In the present suit the plaintiff stated that the father of the defendants Late Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 2/22 Sh. Ram Kishore was uncle of the plaintiff. This way the defendant No. 1 to 3 are cousin of the plaintiff. The plaintiff is a retired person and he is a senior citizen and is 68 years old. The plaintiff is a peace loving and law abiding citizen. Both the parties to the present suit are living in the property bearing No. WZ72, Khampur Village, New Delhi08 (hereinafter referred as suit property). The site plan of the suit property is filed herewith. No partition took place at any point of time with respect to the suit property. The portion in which the plaintiff is residing is shown in yellow color and the portion in which the defendants are in occupation are shown in orange color in the site plan. The plaintiff has initiated a litigation which is pending at present in the court of Sh. Sameer Vajpai, Ld. Civil Judge, Delhi as suit No. 981/10 titled as "Sh. Radhey Shyam Vs. Sh. Sita Ram." The said is for declaration and in that suit the plaintiff of this suit has sought the relief of declaration thereby declaring one memorandum of partition dated 18.01.1984 and the will dated 29.04.1984 as null and void. The plaintiff again submits that between the plaintiff and defendants' father or the defendants the suit property was never partitioned.
Further, the plaintiff is placing on record certain photographs of the suit property to show more clearly the respective portion in possession of the plaintiff and the defendants. From the type of construction existed at the site clearly shows that the defendants are living in posh side of the property and the plaintiff is not in a position to maintain his portion of the suit property. From the site plan, if we enter in the suit property from Gali side there exist a main gate and immediately thereafter is open veranda followed by courtyard which is in possession of the plaintiff as the left side of Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 3/22 the courtyard have already been covered by the defendants and the open portion is the only place to reach to the back side portion of the plaintiff. However, on the right corner of the courtyard behind the room of the plaintiff there is one latrine and bathroom with staircase which exclusively of the plaintiff. The staircase of the defendants is shown at point D. The defendants with a view to create problems for the plaintiff for use of the courtyard, put certain plants with earthen pots at point A to A. The defendants are having nefarious designs and ultimately they want to create a permanent wall from portion A to A thereby declining the plaintiff's use of the courtyard and also thereby disturbing the approach of the plaintiff to its own portion. Even the plants are creating problems as they are giving fertile land to the mosquitoes. The plaintiff made various report to the police of PS Ranjit Nagar. Before the police station, on 14.08.2010, a compromise was recorded at between the parties. On behalf of the defendants Sh. Satish put his signatures on the compromise dated 14.08.2010. The defendants thereafter refused point blank even for the understanding which was arrived at, at the police station, hence the present suit has been filed.
3. Defendants Version: In the WS, the defendants have denied all the claims of the plaintiff on the ground that the plaintiff is estopped by his act, conduct and acquiescencer from filing the present suit. The present suit is liable to be stayed under section 10 of CPC in view of the admissions in para No. 7 of the plaint. The property stands partitioned, which is also clear from para No. 7 of the plait. The said partition deed at least is indicative of separation between families of parties. In any case, the partition between two families Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 4/22 was effected more than 30 years back and since then the parties are not only enjoying their respective portions but also making improvements, additions and also obtaining electric and water connections. There are three electric meters in portion of plaintiff and similarly three in defendant's portion. The said meters are there separately for more than 30 years. Similarly, water connections are separate and independent. Even the sewer connections are separate and independent and storm water out lets are also independent. All these show the independent constructions raised by parties more than 40 years as per mutual division. The plaintiff has independently covered the veranda falling to his share about 12 years back. Both the parties have separate stairs in their portions for their first floor. The portion, where plants are kept is in alignment of property of defendants.
Further, defendants denied that the plaintiff again submits that between the plaintiff and the defendants' father or the defendants, the suit property was never partitioned. It is submitted that had there been no partition between the parties, there was no reason of partition between the plaintiff and his brothers. Since the plaintiff was raising baseless pleas, the police officials clearly told the plaintiff that in case of breach of peace, he will book both sides U/Sec 107/150 Cr. PC and so both parties gave statements that they will not have any dispute. There was no understanding reached. Even the plaintiff has not pleaded any such understanding.
4. By way of replication the plaintiff has denied all the claims of the defendants on the ground that it is incorrect that the suit property has been partitioned. The so called partitioned deed does not have the signatures of the plaintiff. It is also incorrect that partition between the two families was effected more then 30 years back. Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 5/22 The defendants are bent upon harassing the plaintiff and wants to encroach upon common land thereby creating problems for the plaintiff. No effective partition ever took place between the parties either mutually or otherwise. The plant kept by the defendants are creating hindrance. Not only this, the defendants have opened their doors towards the courtyard of the plaintiff. The defendants have made illegal encroachment by occupying the courtyard and by opening their doors towards the courtyard of the plaintiff. It is submitted that the plants intentionally put by the defendants are creating great problems for the plaintiff and his family members for directly reaching to their rooms.
5. On the basis of the pleadings and arguments on the parties, vide order dated 16.02.2012, the following issues have been framed: (I) Whether the plaintiff is entitled to permanent injunction as prayed in the plaint?OPP.
(II) Relief, if any.
6. In PE, the plaintiff has examined himself as PW1, Sh. Kumar Gautam as PW2 and Sh. Hari Chand as PW3. Plaintiff has relied upon the following documents:
(i) The site plan of the suit property is Ex. PW1/1.
(ii) Photographs of the suit property showing the possession of the defendants are Ex. PW1/2 to Ex. PW1/8.
(iii) Copies of the complaints to the SHO, PS Ranjit Nagar is Ex. PW1/19 to Ex. PW1/11.
(iv) Compromise dated 14.08.2010 before Police is Ex. PW1/12. Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 6/22
7. In DE the defendants have examined Sh. Satish Kumar as DW1 and Sh. Mahender Singh as DW2.
8. My Issue Wise Findings: Issue No. 1 Whether the plaintiff is entitled to permanent injunction as prayed in the plaint?OPP.
(a) The onus to prove this issue is upon the plaintiff. To prove it, the plaintiff has examined himself as PW1 and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the plaint. PW1 was duly cross examined and during cross examination, PW1 has deposed that ".........Suit property is our ancestors' property. Sh. Shankar Lal, Sh. Sultan and Sh. Raghunath were original owner of the property in dispute and other property. There was no partition between Sh. Sultan and my father but Sh.. Raghunath got his separate share. The property of Sh. Sultan and Sh. Shankar Lal were WZ72, 71, 17, 103A, 2253/B9 and another property whose numbers, I don't remember. Except property bearing no. WZ71,72, 17 which remains joint and other property were mutually divided. The properties were partitioned about 40 years back between Sh. Shankar Lal and Piare Lal. It is wrong to suggest that all the properties had been partitioned before 40 years back. It is wrong to suggest that suit property had also partitioned and parties are enjoying their respective possession and owner separately. No partitiondeed was Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 7/22 made with me. It is incorrect to suggest that any memorandum of partition was made on 18.01.1984. I have no knowledge of any will dated:
29.04.1984. I have filed the case against Sh. Balbir Singh and Sh. Sita Ram Singh. Both the parties have raised construction in the portion in their respective possession. I can't tell when I raised reconstruction and when defendant raised construction . Vol. Construction was raised gradually and both the parties using and residing therein. I can't tell if the defendant and their father raised construction before 30 years back, defendant however, raised any construction about 5 or 7 years back on second floor. I constructed only one bathroom at above the point 'X'.
Ex.PW1/1. I raised construction around 2 to 3 years back. Portion marked 'Y' was covered before 2006 by my father. It is correct that the portion shown in red colour and also portion in northeastern side in Ex.PW1/7 is in possession of defendant. Vol. there was no partition taken place between the parties. Defendant are having three electricity connection untitled folder in their separated sides. Two connection are in the name of father of defendants for 30 untitled folder years, while one connection was taken recently. I have two electricity connection separately in the name of my father Sh. Piare Lal and one in my name. Connection in the name of my father are more than 30 years. The water are also separate between the parties and more than 30 years back in their respective portion. Housetax is not separated between the parties and it Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 8/22 charges only on the whole property. It is correct that none of the parties objected by raising construction by any other parties. Vol. I made objections when the untitled folder defendant was making hurdles in my passage. It is wrong to suggest that defendant was making foot any hurdles in my passage. It is correct that Ex.PW1/8 is concerned with the ground floor portion. It is correct that brown colour in photograph and white colour portion belongs to me. It is wrong to suggest that the plants shown in Ex.PW1/8 are in the portion of the defendant and it is also wrong to suggest that this plants are not in any way, creating any hindrance in my passage to my portion. It is correct that in photograph Ex.PW1/2, plants shown are put by me and they are on first floor. It is wrong to suggest that no open portion of the left side have been covered by the defendant. It is wrong to suggest that all the property of the parties stands mutually partition and so there are in their respective possession. It is wrong to suggest that marked as 'A' to 'D' were not lodged and it is also wrong to suggest that the portion wear plant have been put and owned and possessed by the defendants. Parties Suit are having their separate stair case and sever connection and stormwater drains are separate for the respective portion of the parties. It is correct that both the parties are in septate possession of WZ71 and 17 also having walls in between. Vol. there is no partition even for these properties.............."
(b) Further, plaintiff has examined Sh. Kumar Gautam as PW2 and during Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 9/22 examination in chief by way of affidavit, he has deposed that "..........I know the plaintiff since my birth as I am residing in the same village where the plaintiff is residing i.e Khampur Village. I am conversant with the facts of the case. The parties to the present suit are living in the suit property. No partition took place at any point of time with respect to the suit property. I submit that the suit property was never partitioned. The defendants have intentionally put certain plaints with earthen pots at point A to A shown in site plan filed by the plaintiff to create problems for the plaintiff and his family members to have a free excess to their portion. The defendants have intention to put a wall on portion A to A to grab the common area to his portion. As I said no partition ever taken place, therefore, the defendants have no right to grab any portion of the property for his illegal gains.............."
(c) PW2 was duly cross examined and during cross examination, PW2 has deposed that "..............The plaintiff and defendants are having separate kitchen. Both the parties are bearing their own expenses separately. They are doing this since my knowledge. As I am 33 years old so I am having knowledge for 20/25 years. I am not aware if the plaintiff has put the roof over the veranda on the ground floor in the suit property. The plaintiff has renovated the toilet at point mark X in the site plan filed by the plaintiff about 68 months back. I do not know if the parties are having their Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 10/22 separate water, electric and sever connection in the suit property. The defendants are residing in portion shown red and the plaintiff is residing in the portion mark A to F,O,G in the site plan filed by the plaintiff. The portion mark H,F,E,K,L,M,N is the joint occupied portion of the parties. It is wrong to suggest that the portion mark H,O,P,K,L,M,N belongs to the defendants. It is also incorrect to suggest that the plants at point A to A1 are situated in the exclusive property of the defendants. It is also incorrect to suggest that property in suit and other properties already stands partition since the time of father of the defendant. I do not know whether the defendant has ever tried to put any wall at the place where plants are placed or not..................."
(d) Plaintiff has examined Sh. Hari Chand as PW3 and during examination in chief by way of affidavit, he has deposed that "...............No partition took place at any point of time with respect to the suit property............."
(e) PW3 was duly cross examined and during cross examination, PW3 has deposed that ".............I knew father of the defendants. He died about 78 years back. Plaintiff and the father of the defendants were residing jointly. Both of them were having separate mess and separate incomes. Both the parties are occupying the portion in the same fashion as they occupying earlier. This arrangement is going on since the time of their grandfather. Electric Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 11/22 and water connection are separated and they are paying the same separately. House tax is however joint since the time of their ancestors. Because there has not been any wall or separate gate in between the two portions of the parties, so I am saying that there was never any partition. I do not know about any other joint property of the parties except the suit property. Radhey Shyam has not constructed anything in the suit property. I have no knowledge if plaintiff has constructed any bathroom. I do not know if plaintiff has constructed a roof on the veranda of the ground floor. Vol. I have never been inside the suit property except at the time of marriage and functions. I had gone about 6 months or 1 year back to the house of plaintiff as I had a work with the plaintiff. Vol. I play cards along with plaintiff and so I had gone to call him. I have never gone to first floor. The plants are there only on the ground floor. I can not even approximately describe the length of the portion A to A where plants have been put by the defendants. It is wrong to suggest that the plants have been put by the defendants in their own portion. I only know that they are ancestral property. I have no knowledge about the details of the ancestral properties of the parties. ................."
(f) On the other hand, defendants have examined Sh. Satish Kumar as DW1 and during examination in chief by way of affidavit he has reasserted the facts mentioned in the WS, and deposed that "............ No property of the party is joint. The partition between the Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 12/22 family of the plaintiff and defendants had taken place more than 40 years back and it is for this reason the plaintiff has not claimed any partition. The parties are enjoying their respective portions, making improvements, additions and alternations and also obtaining electric and water connections. The parties have been making independent constructions as per mutual division. The plaintiff has independently covered the veranda falling in his share about 12 years back. Both the parties have separated stairs in their portions for their first floors. The portion where plants have been kept is in alignment of the property of the defendants and is in exclusive portion of the defendants..................."
(g) DW1 was duly cross examined and during cross examination, DW1 has deposed that "...............It is correct that I have not filed any documents showing the partition of the suit property between the parties in the present suit. It is incorrect that since no partition took place between the plaintiff and me, therefore, I have not filed any deed of partition. It is further wrong to suggest that no partition took place mutually between the parties. It is correct that the property is an ancestral property. It is correct that there is a common entrance gate for the plaintiff and defendant to enter into the suit property. It is incorrect that no plants were kept at point A to A. It is correct that plaintiff was fighting with me for removal of the plants from the same place. It is also correct that the plaintiff has lodged a complaint to the Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 13/22 police. The plaintiff in habit of lodging the complaint. It is correct that the place shown as A to A in common place. It is incorrect that I had made th encroachment on the common portion by putting the plants. It is incorrect that I have intentionally put the plaint to create the problems to the plaintiff as well as his family members. The portion as shown as A to A in site plan is correctly shown and the same is Ex. DW1/P1. It is incorrect that the plants kept by me are not in alignment portion of property in my possession................."
(h) Further defendants have examined Sh. Mahender Singh as DW2 and during examination in chief by way of affidavit he has deposed that "...............The parties are in separate exclusive possession on the spot. The electric, water and sewer connections are also separated since before my age of discretion. The parties have been making independent constructions as per mutual division. The plaintiff has independently covered the veranda falling in his share about 12 years back. Both the parties have separated stairs in their portions for their first floors. The portion where plants have been kept is in alignment of the property of defendants and is in exclusive portion of the defendants.................."
(i) DW2 was duly cross examined and during cross examination, DW2 has deposed that "..............I am landlord. I am graduate as well as a Diploma Holder in Physical Education. I am the neighbor to the plaintiff. I was on visiting terms Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 14/22 but after the death of elders of defendant, I am seldom going to the house of the plaintiff. I am seeing the parties who are living in the property in dispute are living in their separate portion. I have seen the bills regarding electricity and water meters. However, I can not tell the date and period since when plaintiff and the defendants are having their separate connections. I have not seen any major construction done by the parties to the suit, however, minor repairs and changes are being made by the parties to the suit property. No partition either verbal or written has taken place in my presence, however, from the conduct, acts and deeds of the parties to the present suit, it appears to me that they have divided the property mutually. I have recently visited the property of the defendant. I have seen the plants in portion of the defendant. Vol. These plants are there from last 10 to 12 years. I came to know that plaintiff and defendants had fights on account of putting plants at the place after coming this court for deposition of court. I have no knowledge whether any police complaint was made by the plaintiff against the defendants regarding plants. It is wrong to suggest that the plants kept by the defendants are not in alignment............"
(j) It is argued on behalf of the plaintiff that the green portion shown in the site plan which is Ex. PW1/1 is in possession of the plaintiff and red portion shown in the site plan is in possession of the defendant. As per plaintiff, the property has not been partitioned while as per defendant, property has been partitioned but during evidence, plaintiff has been able to show that property has not been partitioned and further during Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 15/22 cross examination, DW1 has admitted that the portion marked as A to A in Ex. PW1/1 is a common portion and therefore, the suit is liable to be decreed in favour of the plaintiff. On other hand, it is argued on behalf of the defendant even for the sake of arguments if the plea of the plaintiff is taken as true that no partition has been taken place then the suit for permanent injunction against coowner is not maintainable and if the partition has taken place then the plaintiff is not entitled to the relief claimed as plaintiff has not come with the clean hands.
(k) Arguments heard. Record perused. (l) It is well settled rule of law that in civil cases the burden of proof upon the
plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
In the present suit, as per plaintiff, plaintiff and defendant are residing in the suit property which is an ancestral property and the suit property has not been partitioned but plaintiff and defendant are residing respectively in the areas specifically shown in Ex. PW1/1. As far as the contention of the partition is concerned, it is clear that the plaintiff has not filed suit for partition and therefore, the court is not required to look into the factum of partition and the evidence or the cross examination of witnesses on the point of partition seems irrelevant to the issue in question. As per plaintiff, after the main entrance gate there is open veranda followed by courtyard which is in Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 16/22 possession of the plaintiff and defendant has put certain plants at point A to A in the courtyard so as to create problems for the plaintiff for use of courtyard and despite repeated requests and complaints by the plaintiff, defendant is not removing these plants from this particular place, hence the present suit has been filed.
The plaintiff has filed suit for permanent injunction and has paid court fees only on one relief while from perusal of the plaint, it is clear that plaintiff is seeking four reliefs though all have been named as permanent injunction but the plaintiff' has filed suit for four kinds of permanent injunctions while plaintiff has paid court fees only on one relief, therefore, the suit is bad for non payment of court fees on all the reliefs. The defect has been pointed out at the stage of final judgment, therefore, no adverse orders are being passed on this particular ground.
(m) For the sake of convenience, the discussion is being made reliefs wise:
(n) Relief A: Plaintiff has sought permanent injunction against the defendants thereby restraining the defendants from encroaching any portion of the suit property shown in dark blue colour in the veranda and in the courtyard. As per plaintiff, defendants has encroached upon the said portion. But plaintiff has failed to show as to which portion plaintiff is referring to because Ex. PW1/1 nowhere shows any area in dark blue colour nor Ex. DW1/P1 shows any area shown in dark blue colour in the veranda and courtyard. Further, even during evidence, plaintiff has not filed anything to prove or to show that defendants have encroached any area referred as courtyard and veranda in Ex. PW1/1 or defendants have ever threatened of any such encroachment. Even further, during cross examination, PW2 has categorically stated that ".......I do not Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 17/22 know whether the defendants has ever tried to put any wall at the place where plants are placed or not........." Thus it is clear that mere bald averments without any supportive evidence falls to the ground and therefore, plaintiff is not entitled to any relief of permanent injunction thereby restraining the defendants from encroaching the portion shown in dark blue colour in veranda and courtyard.
(o) Relief B: Plaintiff has sought permanent injunction that defendants should be directed to remove the plants placed at point A to A of the site plan Ex. PW1/1 and be restrained from creating any hindrance in veranda by putting any plants in that area.
The existence of plants is an admitted fact between the parties. Now the burden of proof is upon the plaintiff to prove that these plants are creating hindrance in veranda and plaintiff is entitled to relief. First of all, plaintiff has to specify the nature of the area in which open veranda and courtyard are situated. But the plaintiff has taken contradictory plea and has failed to specify the nature of the portion as the plaintiff has changed his version repeatedly. In the plaint in para No. 12, plaintiff has stated that "........from site plan if we entered in the suit property from gali side there exist a main gate and immediately thereafter is open veranda followed by courtyard which is in possession of the plaintiff as the left side of the courtyard have already been covered by the defendants. The defendants with a view to create problems for the plaintiff for use of courtyard put certain plants with earthen pots at point A to A............."
Thus, as per plaint, the open veranda and courtyard is in possession of the plaintiff. In WS, defendants have denied all the claims of the plaintiff stated that the Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 18/22 plants have been put in the area of the courtyard which is in possession of defendants. Thereafter, in replication, the plaintiff has stated that "...... The defendants are bent upon harassing the plaintiff and wants to encroach upon common land thereby creating problems for the plaintiff. No effective partition ever took place between the parties either mutually or otherwise. The plant kept by the defendants are creating hindrance. Not only this, the defendants have opened their door towards the courtyard of the plaintiff. The defendants have made illegal encroachment by occupying the courtyard and by opening their door towards the courtyards of the plaintiff........."
Thus, as per replication, the defendants have made encroachment to the courtyard of the plaintiff by opening their doors towards the courtyard at the plaintiff and thus the plaintiff has taken the plea that because of illegal encroachment by the defendants the said area has become a common area in use. But thereafter, during examination in chief by way of affidavit the plaintiff has reiterated the stand taken in the plaint. Thus, the plaintiff has failed to specify the nature of the portion in question i.e whether the plants have been put in the common portion or in the portion in possession of the plaintiff and the burden of proof is upon the plaintiff, who is seeking discretion relief from the court, to disclose all the necessary facts. As far as the admission of the defendants is concerned, during cross examination, DW1 has stated that "...............It is correct that the place shown as A to A in common place. It is incorrect that I had made the encroachment on the common portion by putting the plants. The portion as shown as A to A in the site plan is correctly shown and the same is Ex. DW1/P1. It is Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 19/22 incorrect that the plants kept by me are not in alignment portion of the property in my possession..............."
The defendants have also taken contradictory of their pleadings and have admitted during cross examination that the plants have been put into the common place as the stand of plaintiff is self contradictory and it is settled principle that the onus is upon the one who shall fail if no evidence is lead and therefore, the admission by DW1 is not sufficient to discharge the onus put upon the plaintiff.
Further, from perusal of pleadings and evidence, it is also clear that the plaintiff has failed to show any particular date or event when these plants were put into the portion in question in order to encroach the said portion. While during cross examination, DW2 has clearly stated that ".........I have seen the plants in portion of the defendant. Vol. These plants are there from last 1012 years........."
The disclosure of the said dates or year is necessary as it is settled principle that one who comes to the court, must come with clean hands and the plaintiff has to show that he has not impliedly acquiesced to the act of the defendants by his conduct and the suit is not bad for delay and tactics and the same is also important to show when cause of action, in in the present suit has accrued in favour of the plaintiff.
In view of the above discussion, it is clear that the plaintiff has failed to prove its own case and therefore, the plaintiff is not entitled to relief of mandatory injunction as prayed for in prayer clause b of the plaintiff.
(p) Relief C and D: Plaintiff sought relief of injunction against the defendants thereby restraining the defendants from creating any disturbance in the Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 20/22 peaceful living of the plaintiff in the suit property and from abusing or creating any threat for the plaintiff and his family members and injunction thereby restraining the defendants from creating any hindrance in free egress and ingress of plaintiff and his family members in veranda and courtyard of the suit property. As far as these reliefs are concerned, the burden of proof is upon the plaintiff to show that defendants have created any disturbance or have abused the plaintiff or have created any hindrance in free egress and ingress of the plaintiff in the area in question but apart from the bald averments in the plaint and in examination in chief, the plaintiff has not come up with any particular incident or instance to proof his averments. Further, as far as the police complaints are concerned, these only show the strain relations between the plaintiff and defendants but no enquiry or investigation has been persuaded by the police. Thus the plaintiff has failed to discharge the onus put upon him.
Further, it is also well settled legal principle that the court should not grant injunction in cases where the continuous supervision and control of the court is required. In other words, injunction can not be granted in cases where the relief requires regular and continuous intervention and assistance or supervision of the court. In the present suit, plaintiff is seeking relief that the defendants should be restrained from creating any disturbance in peaceful living of the plaintiff and from abusing or threatening to the plaintiff and the same is such kind of a relief where continuous monitoring or supervision of the court is required.
As the plaintiff has failed to discharge the onus put upon him, therefore, the plaintiff is not entitled to any relief of injunction as prayed for in prayer clause c and d of Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 21/22 the plaint.
9. In view of the above discussion, the suit of the plaintiff is liable to be dismissed as the plaintiff has failed to prove his own case. Accordingly, the suit is dismissed as the plaintiff has failed to prove its case.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open court on 12th April, 2013 (PRABH DEEP KAUR) CIVIL JUDGE05(WEST) THC/DELHI/12.04.2013 Suit No. 05/10 Sh. Radhey Shyam Vs. Sh. Satish Kumar Page No. 22/22