Delhi District Court
Gulshan Lal Narang vs Mrs. Shashi Dhingra on 22 November, 2012
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge
of Central Delhi District at Tis Hazari Courts, Delhi
Suit No. 231/2009
Unique ID No : 02401C0102942009
In the matter of :
Gulshan Lal Narang,
Son of late T.D. Narang,
Resident of 21/26 (GF), Old Rajinder Nagar,
New Delhi - 110060 ......Plaintiff
V E R S U S
1. Mrs. Shashi Dhingra,
Wife of Vinod Kumar Dhingra,
Resident of 6/50 (G.F.), Old Rajinder Nagar,
New Delhi - 110060
2. M/s. Shiva Property Consultant,
Through its Partners,
Resident of 7/46 (G.F.), Old Rajinder Nagar,
New Delhi - 110060
3. Sanjeev Kumar,
Building Contractor,
Care of Vinod Kumar Dhingra,
Resident of 6/50 (G.F.), Old Rajinder Nagar,
New Delhi - 110060
4. Sagir Ahmed,
Building Contractor,
Resident of House No. E/58, Gali No. 2,
Baljit Nagar, New Delhi - 110008
CS No: 231/2009 Page 1/17
5. Mrs. Aruna Narang,
Widow of C.L. Narang,
Resident of Bhargyodaya Apartments,
Flat No. C1, Gandhipuram 2,
Rajahmundry (A.P.)
6. Mr. Girish Narang @ Ashu,
son of late Chaman Lal Narang,
Resident of Bhargyodaya Apartments,
Flat No. C1, Gandhipuram 2,
Rajahmundry (A.P.)
7. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi - 110006 ......Defendants
Date of institution : 09.03.2009
Reserved for Judgment : 09.11.2012
Date of decision : 22.11.2012
Suit for Perpetual and Mandatory Injunction
J U D G M E N T
1. This is a suit for perpetual and mandatory injunctions for restraining the defendants no. 1 to 6 and their agents from raising any further unauthorized and illegal construction on the Second and Barsati Floor of the property bearing No. 21/26, Old Rajinder Nagar, New Delhi-110060 (hereinafter referred to as "the suit property") in any manner whatsoever and further restraining the defendant no. 7/MCD officials not to allow any further CS No: 231/2009 Page 2/17 unauthorized and illegal construction to the defendants no. 1 to 6 over the above said Second and Barsati Floor of the suit property and for direction to defendants no. 1 to 6 and their agents to demolish the illegal and unauthorized construction carried out by them on the Second and Barsati floor of the suit property and restore the same in its original condition.
2. Facts are that the plaintiff's father late Thakur Dass Narang was owner of the suit property who had left a Will bequeathing it in favour of his two sons, namely, G.L. Narang and late Chaman Lal Narang in two equal shares to the exclusion of his all other legal heirs and since the plaintiff was posted out of Delhi at that time the suit property was being maintained and supervised by his younger brother late Chaman Lal Narang who died on 25.02.1996 and after his death the property was being maintained by his wife, Mrs. Aruna Narang and his son Girish Narang; that late Thakur Dass Narang had constructed three and half storeyed building over the suit land which was approved by the competent authority of the Municipal Corporation of Delhi; that the building of the suit property is about 33 years old and is not in a good condition and due to which it is not advisable to put any extra load/burden on the existing structure; that in a suit filed by the plaintiff bearing No. 169/2007 for possession after partition a preliminary decree has been passed on the basis of findings of the Mediation Cell and ground and first floor of the CS No: 231/2009 Page 3/17 suit property goes to the share of G.L. Narang and second and third floor of the suit property goes to the share of Mrs. Aruna Narang; that a final decree was passed on 22.11.2008 and G.L. Narang was declared as lawful owner of the ground floor and first floor of the suit property and other accommodation of the second floor and Barsati floor goes to the share of Mrs. Aruna Narang and Mr. Girish Narang; that it has come to the knowledge of the plaintiff that Mrs. Aruna Narang and Girish Narang with a view to cause loss and harm to the plaintiff, had entered into some transaction with the defendant no. 1 regarding sale of above said property through the defendant no. 2 and they are carrying on illegal construction as indicated in the site plan; that numerous complaints were made by the plaintiff to the various authorities but no suitable action was taken against the illegal acts of the defendants no. 1 to 4 and hence this suit.
3. The defendant no. 1 contested the present suit by filing a written statement of its defence wherein took preliminary objections to the effect that no cause of action ever arose for filing the present suit; that the plaintiff has no locus standi to file the present suit; that the plaintiff has not come to this court with clean hands and has filed the present suit only to harass the answering defendant with his some ulterior motives on false and concocted story.
CS No: 231/2009 Page 4/174. In reply on merits, it is contended that building of the suit property is in good condition, strong and can bear extra structure; that the answering defendant has purchased the entire second and third floor including roof right from the defendants no. 5 and 6 Mrs. Aruna Narang and Girish Narang and the said fact is fully within the knowledge of the plaintiff on the date of filing the present suit; that the suit property is in the same condition as it was at the time of its purchase by the defendant no. 1 and no construction/addition/alteration have been made by the answering defendant; that no unauthorized or illegal construction is raised in the suit property after its purchase by the answering defendant; that no new or unauthorized construction is being carried out by the defendant no. 1.
5. It is denied that the suit property is not in a good condition and requires maintenance. It is also denied that the suit property cannot bear extra load/burden. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
6. The defendant no. 2 also contested the present suit by filing a written statement of its defence wherein it is contended that no cause of action arose in favour of the plaintiff and against the answering defendant; that the answering defendant has no concern with the suit property and parties to the suit; that the CS No: 231/2009 Page 5/17 answering defendant has not committed any illegal act; that he has been made unnecessary party to the suit only to harass, cause loss and with ulterior motive. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
7. The defendant no. 7/MCD also contested the present suit by filing a written statement of its defence wherein took preliminary objections to the effect that the present suit is not maintainable for want of statutory notice under Section 477/478 of the DMC Act, 1957; there there is no cause of action against the answering defendant; that the present suit is filed only to settle personal scores with the other defendants; that the present suit is not maintainable under Section 41 (h) and (i) of the Specific Relief Act.
8. In reply on merits, it is contended that the owner/occupier of the second floor of the suit property has raised unauthorized construction at third floor which was booked vide File No. B/UC/KBZ/09/66 vide dated 06.03.2009; that after following the due process of law under the DMC Act, 1957, the demolition order was passed on 05.06.2009 and a demolition action has been taken on 16.06.2009 partly at the third floor portion; that on inspection of the suit property it was found that the said property consists of ground floor, first floor, second floor and third floor CS No: 231/2009 Page 6/17 and there is a sanction building plan of the property vide File No. B/KBZ/950/76 dated 11.04.1977 in the shape of ground floor, first floor and second floor as shown by the plaintiff; that on inspection it was found that there is a deviation against sanctioned building plan at the ground floor, first and second floor in the shape of excess coverage; that the ground and first floor is being occupied by the plaintiff. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
9. The defendants no. 2 and 6 failed to appear despite service, therefore, they were proceeded exparte vide order dated 19.04.2010.
10. From the pleadings of the parties, following issues were framed by learned Predecessor of this court on 05.09.2011 for trial, namely: 1 Whether the suit of the plaintiff is bad for want of notice u/s 477/478 DMC Act? OPD7 2 Whether the plaintiff has no locus standi to file the present suit?OPD1 3 Whether the plaintiff is entitled for the permanent injunction? OPP 3 Whether the plaintiff is entitled for the mandatory injunction? OPP 4 Relief.
CS No: 231/2009 Page 7/1711. The plaintiff examined six witnesses. PW1 is Gulshan Lal Narang, the plaintiff himself who produced the documents Ex.PW1/1 to Ex.PW1/11. PW2 is Head Constable Brij Lal Police Station Rajender Nagar who proved the already exhibited documents Ex.PW1/8, Ex.PW1/9 and Ex.PW1/10. PW3 is Pawan Kumar, Record Keeper, Building Department, Karol Bagh Zone, MCD who proved the documents Ex.PW3/A to Ex.PW3/E and Ex.PW3/F1 to F9. PW4 is Jagdish Narayan Meena, LDC from the office of Sub Registrar III, Asif Ali Road, New Delhi who proved the documents Ex.PW4/A and Ex.PW4/B. PW5 is Subhash Sethi. PW6 is P.K. Singh, local commissioner appointed by this court who proved the documents Ex.PW6/A to Ex.PW6/D and photographs Ex.PW6/E1 to E13.
12. The defendant no. 1 examined only one witness. DW1 is Smt. Shashi Dhingra, the defendant no. 1 herself. During her evidence, DW1 produced the documents Ex.DW1/1 and Ex.DW1/2. No evidence led by the defendant no. 2 and defendant no. 7/MCD.
13. I have heard counsel for the parties and perused the material available on record.
14. My issue wise findings are as follows: CS No: 231/2009 Page 8/17 Issues No. 3 and 4 Whether the plaintiff is entitled for the permanent injunction? Whether the plaintiff is entitled for the mandatory injunction?
15. Onus qua these Issues was placed on the plaintiff. These issues are taken together being interconnected.
16. In the present case, it is admitted fact that the suit property was previously owned by late Shri Thakur Dass Narang who had executed a Will bequeathing it in favour of his two sons, namely, G.L. Narang and late Chaman Lal Narang in two equal shares to the exclusion of his all other legal heirs. It is also the admitted fact that pursuant to finding of mediation cell a preliminary decree/order dated 11.07.2008 and a final decree was passed on 22.11.2008 in the Suit No. 169/2007 and G.L. Narang was declared as lawful owner of the ground floor and first floor of the suit property and other accommodation of the second floor and Barsati floor has gone to the share of Mrs. Aruna Narang and Mr. Girish Narang.
17. To prove these issues, it is stated by PW1 Gulshan Lal Narang in his affidavit that late Thakur Dass Narang had constructed three and half storeyed building over the suit land which was approved by the competent authority of the Municipal Corporation of Delhi. It is further stated that the building of the suit property is about 33 years old and is not in a CS No: 231/2009 Page 9/17 good condition and due to which it is not advisable to put any extra load/burden on the existing structure. It is further stated that it has come to the knowledge of the plaintiff that Mrs. Aruna Narang and Girish Narang with a view to cause loss and harm to him, had entered into some transaction with the defendant no. 1 regarding sale of above said property through the defendant no. 2 and they are carrying on illegal construction as indicated in the site plan. It is further stated that on the second floor, the defendant had removed the wall over the beams of first floor of roof slab and shifted that wall over the railing portion of the second floor and constructed the wall upto roof height as shown and marked with letters A, B in the site plan (new) and similarly the wall in the drawing cum dinning room, the complete structure of glazed door frame and wooden door steel frame have been shifted from its original position to another new position over the floor, hence increasing the size of the drawing cum dinning room from 10' - 11/2' x 15' 41/2" to 10'11/2" x 18' - 11/2" as shown "C" in the site plan and front bed room size from 10' - 0" x 10' - 0" to 10' x 15' = 41/2" as shown in AB in the site plan. It is further stated that all changes marked as AB and C have been showing in the new drawing annexed. It is further stated that these all additions were made upto 27.02.2009. It is further stated that on third floor of the property the additions have been carried out similarly as in second floor the front wall of bed room which was previously constructed on the beam has been CS No: 231/2009 Page 10/17 dismantled by the owner of second floor and third floor and the new wall has been constructed at the end of railing and thus increased the size of the bedroom from 10'x10' x 15' x 41/2". It is further stated that similarly defendants have raised so many walls in the IInd floor terrace portion upto the roof heights. It is further stated that these new constructed walls have been shown as E, F, G & I in the new drawing upto 27.02.2009 It is further stated that the roof slab over the terrace portion of second floor has been illegally constructed over newly built wall which has been shown in the red colour in the new drawing. It is further stated that the illegal construction has been raised and other additions which has been made in the old structure have also been constructed of new bathroom, toilet, marble stone flooring, sanitary work, dismantling of mezzanine room etc. and thus increased the size of the kitchen at third floor and also panned to make new stair case by dismantling existing toilet in the balcony floor. It is further stated that all these additions have been carried out malafidely in order to cause harassment, harm, mental agony and torturing to him with a view to compel him to vacate the premises on the ground floor where he is living. It is further stated that numerous complaints were made by the plaintiff to the various authorities but no suitable action was taken against the illegal acts of the defendants no. 1 to 4. It is further stated that since the property may collapse suddenly at any time on account of the excess load/burden etc. put on the old constructed CS No: 231/2009 Page 11/17 building which is unable to bear any such further load in any manner whatsoever, the owner of the ground and first floor would not tolerate the causing of the loss and harm to his property or make his property weaken in any manner whatsoever and which loss cannot be compensated in any manner whatsoever. It is further stated that the aforesaid act and conduct on the part of the defendants is quite illegal, unlawful, unwarranted and against the principles of natural justice and the defendants have no right to carry out any illegal and unauthorized construction in the said property.
18. To disprove these issues, it is stated by the DW1 Smt. Shashi Dhingra in her affidavit that that she is the lawful owner of second floor and entire third floor with its roof rights of the property bearing No. 21/26, Old Rajinder Nagar, New Delhi having been purchased the same from erstwhile owner Smt. Aruna Narang, wife of late Shri Chaman Lal Narang through registered Sale Deed vide Registration No. 7917 in Additional Book No. 1, Volume No. 12973 from pages 81 to 90 on 13.10.2008 and copy of the sale deed is Ex.DW1/1. It is further stated that the property purchased by her was not in a habitable condition, therefore, she got only minor repairs work of plastering and white wash only in order to make the suit property in a habitable condition. It is further stated that the third floor of the suit property was already in existence at the time of purchase of the CS No: 231/2009 Page 12/17 suit property having two rooms set with amenities and the same was also shown in the survey conducted by the MCD on 12.03.1993 thereby proving the existence of two rooms set on the third floor in the suit property. It is further stated that building of the suit property is in good condition, strong and can bear extra structure. It is further stated that the suit property is in the same condition as it was at the time of its purchase by the defendant no. 1 and no construction/addition/alteration have been made by the answering defendant. It is further stated that no unauthorized or illegal construction is raised in the suit property after its purchase by the answering defendant. It is further stated that no new or unauthorized construction is being carried out by the defendant no. 1.
19. In the cross examination, PW1 Gulshan Lal Narang made the following deposition: "I will make an application to MCD to inspect the premises whether it is dangerous or not......I filed a suit for partition against my sisterinlaw Aruna Narang and her son Girish Narang in the year 2007 and the matter was referred to Mediation. I got the possession of the ground and first floor and Aruna Narang and Girish Narang got the possession of second floor and third/Barsati floor......If reasonable rate is offered, then I can purchase the same. It is correct that the property was under the control of my bhabhi and my nephew prior to the year 2007 but they did not maintain the property properly. It is correct that the second and third floor of the suit property was sold to defendant no. 1 by my bhabi and nephew......I have not placed on record any opinion of Architect to show that the property is in dangerous condition"
CS No: 231/2009 Page 13/1720. The plaintiff has relied upon Action Taken Report in respect of the suit property which is Ex.PW3/F5. A perusal of Ex.PW3/F5 reveals that JE(Bldg.) and AE(Bldg.) of MCD had reported that there is a deviation against the sanction building plan at the ground floor, first floor and second floor and the deviation/excess coverage of ground floor, first floor and second floor has been booked vide File No. B/UC/KBZ/09/274 dated 16.11.2009. Ground and first floor of the suit property has been occupied by the plaintiff. From the report Ex.PW3/F5, it is revealed that the plaintiff himself has made deviation against the sanctioned building plan at the floors occupied by him i.e. ground floor and first floor. There is no evidence on behalf of the plaintiff that he is not made any deviation from the sanction building plan.
21. In view of the above, the conduct of the plaintiff, as he has himself made deviation in the portion under his occupation against the sanctioned building plan, has been such as to disentitle him to the assistance of the Court, as per the provisions of Section 41 (i) of the Specific Relief Act 1963,
22. There is another disturbing feature in the present case, namely, the plaintiff has based his claim on the allegations that the suit property is in dangerous condition but he has not proved the same. The plaintiff during his cross examination himself CS No: 231/2009 Page 14/17 admitted that he has not placed on record any opinion of the Architect to show that the suit property is in dangerous condition. PW1 has also deposed in his cross examination that he shall make an application to the MCD for inspection of the premises whether it is dangerous or not. In these circumstances, there is no material on record to prove that the building is in dangerous condition. The law is well settled that the plaintiff has to plead material facts in the plaint and also plead those facts which are necessary to establish those material facts. In the present case, the plaintiff has merely stated that the property is in dangerous condition. But, he has not pleaded in the plaint what are those facts which can establish that property is in dangerous condition. In these circumstances, it is not proved that the suit property is in dangerous condition.
23. Further, the contention of the defendant no. 7/MCD that the present suit has been filed for the purpose of settling personal scores with the other defendants. The plaintiff has also admitted in his cross examination if reasonable rate is offered then he can purchase the portion at second and Barsati floor of the suit property. From the testimony of PW5, it is proved that the plaintiff had agreed to purchase the second and third floor of the suit property at Rs.60 lacs while the defendant no. 1 wanted to dispose of it at Rs.70 lacs. From these testimonies, it is revealed that the plaintiff wanted to purchase the second and CS No: 231/2009 Page 15/17 third floor of the suit property but the defendants no. 5 and 6 sold the same to the defendant no. 1.
24. In view of my above discussion, these issues are decided against the plaintiff and in favour of the defendant.
Issue no. 2 Whether the plaintiff has no locus standi to file the present suit?
25. Onus qua this issue was placed on the defendant no. 1. In view of my findings on issues no. 3 and 4, I refrain myself from giving findings on this issue.
Issue No. 1Whether the suit of the plaintiff is bad for want of notice u/s 477/478 DMC Act?
26. Onus qua this issue was placed on the defendant no. 7, MCD. The defendant/MCD did not lead any evidence to prove. Hence, this issue remained unproved.
Relief
27. In view of my findings on issues no. 3 and 4, the suit of the plaintiff is dismissed with costs. For removal of doubt, it is made CS No: 231/2009 Page 16/17 clear that dismissal of the suit shall not in any manner prejudice the powers of North Delhi Municipal Corporation to take action against the suit property as per the building bylaws. Decree sheet be prepared accordingly.
Announced in the Open Court on 22.11.2012 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No: 231/2009 Page 17/17