Delhi District Court
Sh. Kanhiya Lal vs Gopal on 28 September, 2022
IN THE COURT OF MR. HIMANSHU RAMAN SINGH,
ADDL. SENIOR CIVIL JUDGE (SHAHDARA)
KARKARDOOMA COURTS, DELHI
CS No. 9931/16
Sh. Kanhiya Lal,
S/o Late Sh. Shiv Balak Rai,
R/o 56, T-Huts, Indira J.J. Camp
Part-II, Patparganj, Delhi-110092 ..... Plaintiff
Versus
1. Gopal
S/o Sh. Soram
2. Smt. Shanti
W/o Sh. Gopal
3. Pinku @ Ashok
S/o Sh. Gopal
4. Subhash
S/o Sh. Gopal
5. Suman
D/o Sh. Gopal
All R/o 47, T-Huts,
Indira J.J. Camp, Part-II,
Patparganj, Delhi-110092
6. Mangoli
D/o Sh. Nidhan Das
7. Smt. Jai Mala Das
W/o Sh. Nidhan Das
Both R/o C.N.-99,
Indira J.J. Camp, Part-II,
CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 1 of 9
Patparganj, Delhi-110092
8. The S.H.O.
P.S. Madhu Vihar, Delhi ....... Defendants
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
DATE OF FILING : 22.01.2016
DATE OF FINAL ARGUMENTS : 20.09.2022
DATE OF DECISION : 28.09.2022
JUDGMENT
1. This is a suit for permanent and mandatory injunction filed by plaintiff Sh. Kanhiya Lal against the defendants. Briefly, the case of plaintiff as narrated in that plaint is that:
1.1 The plaintiff is residing at 56, T-Huts, Indira J.J. Camp, Part-II, Patparganj, Delhi-92 alongwith family since 1987-88 and same was allotted by J.J.R. Slum Department, DDA/MCD and in this regard, the token no.15/56, T-Huts was also issued by JJR Slum Department, DDA/MCD and the suit property is shown in red colour in the site plan attached with the plaint. The plaintiff has constructed upto first floor by his own earnings and there are two rooms on both floors and suit property is two side open. The ground floor of suit property has become 3 feet below than the Gali so the water of drains enter in the house of the plaintiff.
1.2 It has been averred that when the plaintiff and his family members tried to uplift the floor level than the Gali level of his house, then, the defendants no.1 to 7 being neighbours used to quarrel and threatened the plaintiff and his family and they also objected to open his window or CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 2 of 9 door in the back side of the Gali. On 3.11.2015 when the plaintiff opened his window and tried to uplift the ground floor level of his house then defendants no.1 to 7 restrained the plaintiff and made use of filthy languages and threated to falsely implicate in false case.
1.3 It has been averred that the plaintiff made a complaint with SHO P.S. Madhu Vihar and DCP East vide diary no.528 dated 13.1.2016 but no legal action was taken against the defendants and all of them conspired with the police and broke some part of the wall of the plaintiff's house as well as drains and also threatened to break the entire wall and forcibly dispossess the plaintiff and his family from the suit property. On 20.1.2016, the defendants entered in the house of the plaintiff and threatened either to dispossess the plaintiff and his family very shortly or to kill them, in case the plaintiff tried to uplift the ground floor level of his house than the Gali level, open the door or window in the back side of the Gali in the suit property.
2. Summons were issued to the defendants and were duly served. Written Statement were filed on behalf of defendants No. 1 to 7 on 02.06.2016.
3. It is the case of defendants no.1 to 7 that the suit of plaintiff is not maintainable and is liable to be dismissed as the same is not properly verified as per provisions of CPC. It is further averred by the defendants that the no cause of action arose in favour of the plaintiff and against the defendants for filing the present suit. The plaintiff has no cause of action in his favour and the plaint does not disclose any cause of action in favour of plaintiff. It is further averred by the defendants that the plaintiff is seeking CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 3 of 9 the relief of encroachment on the public land (gali) which cannot be granted to him. It has been submitted that there is very narrow gali of 3 feet. The plaintiff by way of present suit wants to illegally encroach the half gali i.e. 1-1/2 feet. The main doors of the defendant no. 1 opened on the said gali, whereas the plaintiff has no door in the said gali in fact there is backside wall of the house of the plaintiff has succeeded to raise balcony/chhajja of abut 2 feet in the said gali illegally and unlawfully and by the said act of the plaintiff, the sunlight in the gali has completely been closed. The defendant no. 1 several times requested the plaintiff not to raise illegal and unauthorized construction on the public land/gali but the plaintiff is adamant to raise the same. It is averred that since the defendant no. 1 was not allowing the plaintiff to raise illegal and unauthorized construction on the public land/gali, the plaintiff molested, beat and threatened to kill the daughter of the defendant no. 1 namely Suman and other family members and in this regard, an FIR No. 23/2015 under Section 354/341/506/509/34 IPC, P.S. Madhu Vihar, Delhi was registered against the plaintiff. It has been further stated that one Kalandra u/s 107/151 Cr.P.C. was also made against the plaintiff and the plaintiff remained in jail. It has been submitted that the plaintiff has already succeeded to open window in gali and installed his big cooler in the gali and due to this act of the plaintiff, the defendants no. 1 to 7 are facing great hardship as the gali is very narrow and now the motor cycle of the defendant no. 1 cannot enter in the gali in the house of the defendant no. 1 due to installation of cooler. The defendants have denied all other averments of the plaint and prayed for dismissal of the suit with costs.
4. After completion of pleadings, following issues were framed:-
CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 4 of 9(i) Whether the plaintiff is entitled to raise the floor level of his property? OPP
(ii) Whether the plaintiff is entitled to open door and window in the gali as shown in site plan? OPP
(iii) Whether the plaintiff is encroaching on public land? OPD
(iv) Relief.
5. I have heard the arguments at length and gone through the record carefully.
6. The issue wise findings are as under:
ISSUE NO. 1(1) Whether the plaintiff is entitled to raise the floor level of his property? (OPP)
7. The onus to prove this issue was on the plaintiff.
Plaintiff was examined-in-chief and discharged, as PW-1. In order to prove his case, the plaintiff has examined himself as PW-1 and has relied on the following documents:
a) Site plan Ex. PW1/A.
b) Copy of Possession slip no. 3916 Ex. PW1/B (OSR).
c) Copy of Domicile certificate Ex. PW1/C (OSR).
d) Copy of Electral Rolls Ex. PW1/D (OSR).
e) Copy of Shahri Vikas Vibhag receipt Ex. PW1/E (OSR).
f) Copy of Free consumer certificate Ex. PW1/F (OSR).
CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 5 of 9
g) Original Indane receipt Ex. PW1/G.
h) Original Electricity bill of the year 2005 Ex. PW1/H (OSR).
i) Copy of Electricity bill of the year 2016 Mark-A.
j) Copy of Token no. 15/56 T-Huts is Ex. PW1/J (OSR).
k) Copy of Ration Card Ex. PW1/K (OSR).
l) Copy of Identity Card Ex. PW1/L (OSR).
m) Copy of Adhar Card Ex. PW1/M (OSR).
n) Complaint dated 13.01.2016 Mark-B.
o) Certified copy of Anticipatory bail order Ex. PW1/O.
p) Kalandra under Section 107/151 Cr.P.C Ex. PW1/P.
8. Thereafter, ASI Devinder Kumar, No. 2673D, PS Jagat Puri, Delhi was examined as PW2. He filed the reply of notice/summons on behalf of defendant no. 8 dated 09.02.2016 (Ex. PW2/A). After that, HC Amit Kumar, No. 414 East, DCP Office, East District, Complaint Branch was examined as PW-3. He brought the summoned record i.e. original complaint dated 13.01.2016 lodged by Kanhiya Lal.
9. Evidence by way of affidavit as DW-1 Gopal, DW-2 Shanti and DW-3 Suman were filed on record, but defendants were not chief- examined.Perusal of the file would show that plea of the plaintiff is that the plaintiff wants to uplift the ground level more than the Gali level and wants to open window and door in possession of the plaintiff shown in red colour in the site plan. The apprehension of the defendants is that the plaintiff will encroach upon the near by Gali which is public place. Perusal of the site plan would show that measurements of the premises in question have not been mentioned, even no document has been filed by the plaintiff to show what are the original measurements of the premises in question. Neither the CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 6 of 9 level of the premises in question nor of the Gali has been mentioned. No photograph has been filed to show current position of Gali and of the premises in question. The plaintiff has placed copy of permanent house number plate only on record. No document showing the terms and conditions at which premises in question was alloted to the plaintiff has been filed on record.
10. From the documents relied upon by the plaintiff, Possession slip Ex. PW1/B, Domicile certificate Ex. PW1/C and the other documents produced, the measurements of the premises in question are not clear.
11. The plaintiff was cross-examined by Ld. Counsel for the defendants no. 1 to 7 wherein he stated that the suit property was alloted to him by DDA in the year 1987-1988 measuring area 22.5 sq. yds. The gali is around 8 feet where he has opening of his gate of the property. He denied that width of gali at the back side where defendant no. 1 to 7 are residing is of 3 feet. The width of the gali at the back side is around 8 feet. The defendants encroached upon 3 feet and at present, the width of gali at the back side is around 5 feet. He further denied that he has mentioned in plaint that the width of gali at the back side is around 3 feet. He further denied that he has no window or door opening towards the back side lane of the property. He was asked that he had written in para no. 8 of his affidavit that the defendant fights with him and threatened him when he try open the door or window on the back side, therefore, it is correct that he has admitted that there is no door or window in his property opening towards the back side. On which he answered that there is a door and window opening towards the back side and he is not stating about installation of any door or window in para no. 8 of his affidavit. Plaintiff was shown site plan CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 7 of 9 Ex. PW1/A . After seeing the site plan, plaintiff stated that the said window and door has been shown at point A in Ex. PW1/A. He further denied that he wants to encroach around 1.5 feet of gali at the back side by way of present suit. He affirmed that he has already made a complaint to the police official which is marked as Mark B dated 22.08.2017. He further affirmed that the present suit is filed after making kalendra under Section 107/151 Cr.P.C. in which he was sent to JC. He denied that he has filed the suit only to harass the defendant or that he wants to encroach the area of 1.5 feet on the back side of the gali.
12. This court is of the opinion that, the plaintiff was not able to give satisfactory answers during the cross-examination. Serious contradictions were pointed out in his testimony. All the other witnesses examined by the plaintiff were regarding the dispute between the plaintiff and defendant in criminal cases. The plaintiff has failed to discharge the burden of prove cast upon him. The issue is accordingly decided against the plaintiff and in favour of the defendant.
ISSUE NO. 2
(2) Whether the plaintiff is entitled to open door and window
in the gali as shown in site plan? OPP
13. The onus to prove this issue was on the plaintiff. The plaintiff has failed to discharge the burden of proof cast upon him. Issue no. 1 has already been decided against the plaintiff. The said issue is also decided against the plaintiff.
CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 8 of 9 ISSUE NO. 3(3) Whether the plaintiff is encroaching on public land? OPD
14. The onus to prove this issue was on the defendant. The defendant did not lead any evidence and failed to discharge the burden of the proof cast upon him. The said issue is accordingly decided against the defendant.
RELIEF
15. In view of the facts and discussions, the plaintiff has failed to discharge the burden of proof cast upon him and accordingly, the suit of plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in open court on 28.09.2022 (Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court, Delhi/28.09.2022 CS No. 9931/16 Kanhiya Lal Vs. Gopal and Others Page 9 of 9