Delhi District Court
Baldev Krishan vs Jagdish Chander (Since Deceased) on 12 November, 2021
THE COURT OF MS. SHIVALI SHARMA
APDDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
RCA/DJ No.
In the matter of:
Baldev Krishan
S/o Late Sh. Lekh Raj
R/o D27, Ajay Enclave,
New Delhi 110 018.
.......Appellant
Versus
Jagdish Chander (Since deceased)
S/o Late Sh. Lekh Raj
R/o D27, Ajay Enclave,
New Delhi 110 018.
Through his LRs
(a) Ms. Pooja Malhotra W/o Sh. Mukesh Malhotra
R/o H. No. 1109, Gali No. 5, Shalimar Park,
Bhola Nath Nagar, Delhi 110 032
being the daughter of the Respondent.
(b) Ms. Nitish S/o Sh. Jagdish Chander
being the son of the Respondent
R/o D27, Ajay Enclave, New Delh110 018.
......Respondent
Date of institution : 01.08.2017
Date of decision : 12.11.2021
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JUDGMENT
1. This is an appeal filed by Shri Baldev Krishan against Shri Jagdish Chander challenging the order dated 06.07.2017 whereby the application of the appellant/counter claimant u/o 39 rule 1 & 2 CPC filed in his counter claim was dismissed.
2. Appellant before this court is the defendant no.1/counter claimant in the original suit and respondent herein is the plaintiff therein. For the sake of convenience, parties shall be referred to by their nomenclature in the main suit.
Facts of the case:
Plaintiff's case:
3. Brief facts necessary for the disposal of the present appeal are that the plaintiff has filed a suit alleging himself to be th owner of 75 square yards of the property which is a portion of the suit property i. e. house no. D27, adjoining house no. D26 situated in Ajay Enclave, New Delhi 18. Plaintiff and defendant no.1 are real brothers and house was constructed by their late father on a piece of land admeasuring 200 square yards. In 1990, a family settlement took place between the parties and a pucca wall was constructed in June, 1990 dividing the property. Defendant no.1 filed a suit for partition of the said suit property malafidely and without any sanction plan got constructed the first floor and some portion of the second floor over the property. The construction was started in June,2003 and was completed despite the protest. By way 2 of 14 of the said construction defendant no.1 encroached upon/tresspassed into the wall of the plaintiff and the portion of the property which belongs to the plaintiff.
4. The present suit has been filed in respect of the encroachment made by the defendant no.1 on the first floor/wall in the suit property. The suit for partition filed by defendant no.1 bearing Suit no. 666/2004 and the counter claim filed by the plaintiff therein were withdrawn on the statements of the parties vide order dated 21.04.2009. At the time of the withdrawal, the plaintiff herein was given liberty to initiate appropriate proceedings for taking action against the protruding portion on the first floor of the property. The plaintiff requested defendant no.1 to remove the said encroachment but defendant no.1 refused to do so. Matter was reported to police as well as MCD but no action was taken.
5. Hence, the present suit has been filed seeking a decree of mandatory injunction directing defendant no.1 to remove all the encroachments made by him in the property and restore the wall on the first floor to the condition as existed before encroachment on the said wall. MCD is also impleaded as defendant no.2 & 3 in the suit and a mandatory injunction has been sought directing MCD to take legal action for demolition of the encroachment made by the defendant. Plaintiff has also sought compensation of Rs. 10,000/ from defendant no.1.
3 of 14 Defendant's case:
6. Written statement was filed by defendant no.1 wherein the contentions of plaintiff have been denied.
7. Alongwith the written statement a counter claim had been filed by the defendant no.1 wherein it is alleged that the suit property i.e. the house bearing no. D27, Ajay Enclave, New Delhi, was constructed on a plot admeasuring 200 square yards by late Shri Lekh Raj in the year 196566 after getting the building plan sanctioned from defendants no.2 & 3 and a completion certificate was also issued by MCD. The original house was a single storyed house. Shri Lekh Raj expired intestate on 28.12.1983 leaving behind his widow, two daughters and three sons.
Widow of late Shri Lekh Raj also expired in the year 2001. The two sisters and third brother of plaintiff and defendant no.1 released their undivided 1/6th share in favour of the counter claimant/defendant no.1 vide registered relinquishment deeds dated 27.05.1985 and 16.03.1995, much prior to the death of their mother on 26.10.2001. Thus, counter claimant/defendant no.1 became absolute owner of 2/3rd undivided portion of the said property.
8. After the demise of the father of the parties, plaintiff started raising disputes and in June1990 a parda wall was raised without any foundation so that the family members could live in peace. This parda wall divided the suit property in roughly 2/3rd and 1/3rd portion and was constructed at the instance of the mother of the parties.
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9. After demise of mother of the parties on 26.10.2001, her 1/6th share had again fallen to the shares of the remaining legal heirs including plaintiff, defendant no.1, their two sisters and one brother in equal portion i.e. 1/30th each. Accordingly, defendant no.1/counter claimant had become entitled to 2/3rd + 1/30th (21/30) share in the entire suit property. Plaintiff is residing in a small portion admeasuring about 72 square yards in the suit property while the defendant no.1 is residing in the large portion admeasuring about 128 square yards therein.
10. In 2003, the counter claimant/defendant no.1 intended to raise some construction over the roof on the first floor on his portion of the suit property owing to space crunch for which he demanded the original documents of the suit property which were with the plaintiff but the plaintiff did not cooperate. Defendant no.1 was given to understand that he was well within his rights to raise construction on first and second floor of the property without getting the building plan sanctioned as the ground floor was raised with prior approval and completion certificate from MCD. Such construction could be raised in case the building plan was got prepared from an architect duly registered with MCD and construction was raised only on the upper floors. Accordingly, defendant no.1/counter claimant raised the construction on the first and second floor above the portion of the suit property in his possession. The plaintiff has been trying to pressurize the counter claimant/defendant no.1 so that he can obtain one half share in the suit property.
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11. Hence, the counter claim has been filed seeking a decree of declaration that the memorandum of family settlement dated 28.11.1991 in respect of the suit property had become redundant, infructous and accordingly the parda wall is liable to declared as non est. A declaration is also sought to the effect that the defendant no.1/counter claimant is entitled to 4/5th share in the suit property and the plaintiff is entitled to 1/5th share in the suit property. A decree of permanent injunction is sought restraining the plaintiff from creating any third party interest in the suit property or parting with the possession of any portion of the suit property. Decree of permanent injunction is also sought from restraining the plaintiff from raising any sort of construction, modification, heavy repair and /or changing the character of the existing structure of the portion of the suit property in his possession. Certain directions by way of mandatory injunction are also sought in the counter claim.
12. Plaintiff has filed the WS to the counter claim rebutting the contentions raised by defendant no.1/counter claimant in his counter claim.
Application under Order 39 Rule 1 and 2 CPC
13. Pleadings were already completed when an application u/o 39 rule 1 & 2 CPC was filed by the counter claimant /defendant no. 1 on 18.04.2016 wherein it has been claimed that the plaintiff has deliberately and willfully raised the unauthorized construction over the portion of the suit property in his possession during the period from end of February 6 of 14 2016 to second week of April 2016 in collusion with the officials of the MCD. The plaintiff had demolished the parda wall to the extent of 10 ft in the front courtyard and had raised a fresh pucca room in the front courtyard with brick masonry with RCC roof and parapet wall of 4 ft height. Plaintiff has also made structural changes in the existing structure of the suit property causing danger to the structural safety of 50 year old building by removing the windows of the kitchen and making fresh openings in the mumty leading to the roof of the old structure. Photographs of ongoing and unauthorized construction have been placed on record alongwith the application. The counter claimant/defendant no.1 is further apprehending that plaintiff is likely to make further structural changes in the old construction leading to danger to the structural safety of the entire building. Hence, the application has been filed seeking a restraint against the plaintiff from making any further construction/structural changes in the portion of the suit property presently in his occupation.
REPLY TO THE APPLICATION:
14. Reply to the application was filed by the plaintiff admitting raising of construction by him but denying the same to be unauthorized construction affecting the structural stability of the suit property.
IMPUGNED ORDER:
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15. After hearing the arguments on the application, Ld. Trial court dismissed the application vide impugned order 06.07.2017 observing that in the counter claim, defendant no.1 has not mentioned about any structural changes having been carried out in the suit property by the plaintiff. Since the alleged construction has been raised by the plaintiff subsequent to the filing of the counter claim by defendant no.1, therefore, the facts are beyond the pleadings of the counter claim. No amendment has been made in the pleadings in order to incorporate these subsequent facts. Accordingly, no relief whether final or interim can be granted on the basis of the facts which are not a part of pleadings and accordingly, no prima facie case is made out against the counter claimant/defendant no.1.
Grounds for appeal:
16. In the present appeal, the impugned order has been assailed on the following grounds:
1) That while passing the impugned order Ld. Trial Court had virtually ignored the principle of lis pendence which mandates that the nature and status of the subject matter of the suit (suit property in the instant case) cannot be changed or altered.
2) That the Ld. Trial court had ignored the fact that the defendant no. 1/ counter claimant had sought a relief in his counter claim seeking a decree of permanent injunction restraining the plaintiff from raising any sought of construction, modification, heavy repairs and/or changing the 8 of 14 character of the existing structure in and above any portion of the suit property in his possession.
3) That the Ld. Trial court has failed to appreciate the pleadings of the parties including the original suit, written statement, counter claim and written statement to the counter claim.
4) That the Ld. Trial court has also failed to appreciate the principle of equity which demands that a party seeking action against the other for raising unauthorized construction cannot be allowed to raise unauthorized construction himself.
5) That the Ld. Trial court also failed to appreciate that counter claimant/defendant no.1 had filed another application u/s 151 CPC on 18.04.2016 itself under the principle of lis pendence to bring the suit property to the same position in which it existed at the time of listing of the suit.
6) That the Ld. Trial court also failed to appreciate the admissions made by the plaintiff admitting having raised the unauthorized construction during the pendency of the suit in the April2016 in his reply to the application.
7) That the Ld. trial court declined to call a status report from the officials of defendant no. 2 & 3 regarding the ongoing construction in the suit property.
8) That the Ld. Trial court failed to appreciate that the interim relief sought by way of application u/o 39 rule 1 & 2 CPC was very much confirming to the main relief i.e. the relief no. (D) in the counter claim.
9) That the Ld. Trial court did not give proper hearing to the counter 9 of 14 claimant/defendant no.1 before deciding the application.
ARGUMENTS AND FINDINGS:
17. The respondent was duly served with the notice of the application and also appeared with his counsel. Respondent expired on 06.11.2018. Thereafter, his LRs were brought on record vide order dated 03.03.2020. Thereafter, one of the LR had appeared in the matter but later LR's stopped appearing. Accordingly, arguments on the appeal were heard on 27.10.2021 while giving the LRs of deceased respondent liberty to file their written submissions. However, no written submissions were filed by or on their behalf.
18. I have heard the arguments of the appellant who is a practicing advocate and carefully perused the record as well as the TCR.
19. The appellant/counter claimant/defendant no.1 has specifically pleaded in paragraph no. 17 of the counter claim that at the time of filing of the counter claim the entire portion of about 72 square yards of the suit property in possession of the plaintiff was still a single storeyed house in the state of its original construction of the year 1965
66. In his written statement to the said counter claim, plaintiff has merely denied the entire contents of paragraph no. 17 without specifically mentioning as to what is the status of the construction in the portion of the suit property in his possession. Accordingly, the denial is merely vague
10 of 14 and in a routine manner and not specific.
20. Defendant no.1/counter claimant had also sought a specific relief in his counter claim being relief no.(IV) i.e. a decree of permanent injunction restraining the nonclaimant , his nominees, assignees, heirs from raising any sort of construction,modification, heavy repairs and / or changing the character of the existing structure in and above any portion of the suit property presently in his unauthorized possession. In the application u/o 39 rule 1 & 2 CPC, the defendant no.1/counter claimant is seeking a restraint against the plaintiff /non claimant restraining him from raising any further construction or making any further structural changes in the portion of the suit property presently in his occupation. Accordingly, in my opinion the interim relief sought by the plaintiff is in consonance with the main relief sought by him in his counter claim.
21. Perusal of the impugned order shows that the Ld. Trial court was influenced by the fact that whatever unauthorized construction/structural changes were made by the plaintiff in the portion of the suit property in his possession were made after the filing of the counter claim and these subsequent facts had not been made a part of the pleadings. This observation of Ld. Trial court lead to the dismissal of the application of the counter claimant/defendant no.1 u/o 39 rule 1 & 2 CPC.
22. However, in my opinion when the main relief of permanent 11 of 14 injunction restraining plaintiff from raising unauthorized construction/structural changes in the portion of the suit property in his possession is already sought by defendant no.1/counter claimant in his counter claim, there is no bar in giving an interim relief on the same ground if the facts call for the same even if there is no amendment in corprorating the facts of raising unauthorized construction in the counter claim. The main purpose of Order 39 Rule 1 & 2 CPC is to prevent the property in dispute in a suit from being wasted, damaged or alienated by any party.
23. Let us now consider the facts of the present case. In the application under consideration defendant no.1/counter claimant had alleged that plaintiff had raised unauthorized construction and made structural changes in the portion of the suit property in his possession.
24. The fact that the construction has been raised by the plaintiff after filing of the counter claim is admitted by him in para no.6 of his reply filed to the application u/o 39 rule 1 & 2 CPC. Thus the fact that the construction has been raised by plaintiff is not in dispute. Plaintiff is alleging that the construction is authorized while as per defendant no 1, it is unauthorized. Plaintiff has not filed any document alongwith his reply to show that he had taken permission from the municipal authorities prior to the raising of the construction by him. Admittedly, the suit property is very old having being constructed in the year 196566. Making random construction/structural changes in such an old property without obtaining 12 of 14 proper sanctions and approval from structural engineer is likely to effect the structural stability of the property. Accordingly, a primafacie case is made out in favour of the appellant/defendant no.1/counter claimant. For the same reason balance of convenience also lies in his favour. In case the unauthorized construction /structural changes made by the plaintiff in the portion of the suit property in his possession result in structural damage to the suit property, the defendant no. 1/counter claimant who is also joint owner and in possession of a larger portion of the suit property is likely to suffer damages which cannot be compensated in terms of money.
25. Accordingly, the defendant no. 1/counter claimant is entitled to the interim relief as prayed by him in his application u/o 39 rule 1 & 2 CPC.
26. In view of the reasons given above, the appeal is allowed and the impugned order dated 06.07.2017 dismissing the application of the appellant/defendant no.1/counter claimant u/o 39 rule 1 & 2 CPC is set aside.
27. The application of the appellant/defendant no.1/counter claimant dated 18.04.2016 u/o 39 rule 1 & 2 CPC filed in the counter claim is allowed. Plaintiff /his Lrs are restrained from raising any further construction and or making any further structural changes in the portion of the suit property presently in their occupation. (adjoining property no. D26, Ajay Enclave, New Delhi 18) during the pendency of the suit filed 13 of 14 by the plaintiff and counter claim filed by defendant no.1/counter claimant.
28. Nothing expressed herein shall tantamount to an opinion on the merits of the present case.
29. With these directions, appeal stand disposed off.
30. Trial court record be returned back with a copy of this order.
31. File be consigned to record room after due compliance.
Digitally signed by SHIVALI SHIVALI SHARMA
SHARMA Date:
Announced in the open court 2021.11.12
15:29:08 +0530
on: 12.11.2021
(SHIVALI SHARMA)
ADJ03/WEST/THC/DELHI
12.11.2021
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