Delhi District Court
Sunita Gupta vs Ravinder Gupta on 9 September, 2025
IN THE COURT OF MS. DIVYA GUPTA,
CIVIL JUDGE-08, CENTRAL DISTRICT,
ROOM NO.283, TIS HAZARI COURTS, DELHI
SUIT NO: 99265/16
CNR NO. DLCT03-000455-2008
IN THE MATTER OF: -
Sunita Gupta
W/o Sh. Daya Nand Gupta
D/o Late Sh. Dilbagh Rai Gupta
R/o A-23, Ground Floor,
Back portion, Kirti Nagar
New Delhi-110015 ...PLAINTIFF
VERSUS
1. Ravinder Gupta
S/o Late Sh. Dilbagh Rai Gupta
R/o A-23, First Floor,
Front portion, Kirti Nagar
New Delhi-110015.
2. Surender Gupta
S/o Late Sh. Dilbagh Rai Gupta
R/o A-23, First Floor,
Front portion, Kirti Nagar
New Delhi-110015.
3. Ramneek Gupta
S/o Sh. Ravinder Gupta
Permanent resident of A-23, Ground Floor
(Front portion), Kirti Nagar
New Delhi-110015.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 1 of 50
4. Anita Gupta
W/o Sh. S.M. Gupta
R/o 402A, Plot No. 34,
Anand Sagar Co-operate Society,
Sector-17, Vashi,
Navi Mumbai, Maharashtra. ...DEFENDANTS
Date of institution : 06.10.2008
Date of judgment : 09.09.2025
SUIT FOR PERMANENT & MANDATORY INJUNCTION AND
COUNTER CLAIM FOR PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit for permanent & mandatory injunction filed on behalf of plaintiff as well as counter claim for permanent injunction filed on behalf of defendant no. 1. BRIEF FACTS OF THE PLAINT:
2. It is pertinent to note that present plaint was amended on an application of plaintiff under Order 6 Rule 17 of CPC vide order dated 16.12.2010. The brief facts of the amended plaint as alleged by the plaintiff which are necessary for the disposal of the suit are:
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 2 of 50
a) That the plaintiff and defendants are residing in their portions of property bearing No. A-23, Kirti Nagar, New Delhi ( hereinafter referred to "suit property").
b) That the defendants are co-owners of a portion of the suit property and have rights in the common areas. That the plaintiff and defendants are in use and occupation of the suit property as per Will executed by their father/grandfather Late Sh. Dilbagh Rai Gupta on 16.10.2002.
c) That the plaintiff is real sister of the defendants no. 1 and defendant no.
2. That the defendant no.3 is the son of defendant no.1 and as per the Will of Late Sh. Dilbagh Rai Gupta, he was bequeathed with second floor of the front portion of the suit property. The defendant no.4 is daughter of Late Sh. Dilbagh Rai Gupta and as per the Will of Late Sh. Dilbagh Rai Gupta she was bequeathed with the second-floor portion of the rear portion of the suit property. That defendant no. 3 and 4 have been impleaded as proforma parties.
d) That as per the Will dated 16.10.2002, father of the plaintiff late Sh.
Dilbagh Rai Gupta had already sold-out ground floor back portion to Smt. Kusum Byotara about 16 years back but same was purchased by the plaintiff from Smt. Kusum Byotara via sale deed dated 03.12.2007. That CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 3 of 50 plaintiff is in possession of ground floor (back portion) and first floor of back portion of the suit property.
e) It is alleged that as per Will, the open space in front of common gallery has not been given by Late Sh. Dilbagh Ral Gupta to anybody but even then defendant no.1 in consent with defendant no.2 is going on with illegal construction in the open space to stop entry to the rear portion through open space and also was to close the right of the plaintiff for natural resources i.e. air and sun light by covering the open space with roof.
f) That in the month of July 2008, the defendant tried to stop the passage of the plaintiff and put/stored the household articles like clothe stand at the entrance of the plaintiff, the plaintiff objected the same but the defendants did not obey the request of the plaintiff and plaintiff lodged the report in this regard on 31.07.2008 to police but the police officials have not taken any proper action against the defendants.
g) That the plaintiff is a permanent resident of Alwar, Rajasthan and that tenants of the plaintiff are residing in the said portion of the plaintiff. The tenants of the plaintiff informed the plaintiff on phone in the night of 02.10.2008 that the defendants have collected the building material on CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 4 of 50 spot and have started raising wall and are trying to close the main gate as well as the window of the plaintiff and her tenants. It is contended that if the defendants succeed in their ulterior motive and illegal design, the plaintiff will not be in a position to receive air and sunlight after closing the main gate.
h) That the plaintiff immediately came to Delhi from Rajasthan and requested not to raise illegal construction but the defendants did not stop the illegal construction and plaintiff immediately lodged the report to the police station Kirti Nagar, New Delhi. The plaintiff also informed the Control Room, but the police officials failed to take proper action. Though defendant no.1, after arrival of the local police, removed the wall just in front of the door and also promised to remove the complete wall constructed by the defendants after warning given by the local police but he has not kept promise after police left. The wall is still standing in front of the window.
i) That on 04.10.2008 the defendants again started illegal constructions over the open space area despite instructions and warning given by the local police and built up R.C.C. roof over open space. The plaintiff had called on 100 number vide D.D. No.104. Some officials by name Sh. CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 5 of 50 Suresh with one more person came to the spot and asked the defendants no.1 & 2 to stop the construction work immediately. The defendants, without caring for the warning, covered the open space with R.C.C. by evening and totally stopped sunlight and air of the plaintiff and totally blocking the entrance of the plaintiff to her portion from the common open area. The plaintiff lodged a complaint with the MCD, consequent to which MCD carried out demolition of the unauthorized construction on 17.10.2008.
j) That the defendant no.1 again carried out illegal construction under the said portion and illegally constructed a roof on the common open area marked red in the site plan and have also illegally constructed side wall in the portion marked AB thereby blocking the easementary rights of the plaintiff.
k) It is further alleged that during the pendency of the present suit the defendant no.2 had started raising the unauthorized and illegal construction in front of the garage (which is encroaching/attempt to encroach the open space of 80' X 10' by covering not subject matter of present suit) i.e. the part of the same in front of the garage and to raise further unauthorized and illegal construction on the first floor and above CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 6 of 50 the encroached part of the open space as such the plaintiff was constrained to file a suit for permanent and mandatory injunction bearing CS No.329 of 2009 titled as 'Smt. Sunita Gupta Vs Sh. Surinder Gupta & Anr.' pending adjudication before the Hon'ble Court of Sh. Vinay Singhal, JSCC/ASCJ/GJ (West) Delhi against the defendant no.2 herein.
3. Hence, the present suit for following reliefs:
a) To pass a decree of permanent injunction in favour of the plaintiff and against the defendants no.1 & 2 thereby restraining the defendants no.1 & 2, their family members, agents, associates from carrying any illegal construction in the portion of the common open portion shown as 'Red' in the site plan annexed to the plaint;
b) That a decree of mandatory injunction be passed in favour of the plaintiff and against the defendant no.1 & 2, thereby directing the defendant no.1 & 2 to remove unauthorized wall shown as AB in the site plan as well as R.C.C. roof shown in Red in front of the above said passage in common open space as shown in the site plan in red color.
WRITTEN STATEMENT & COUNTER CLAIM OF DEFENDANT NO.1:
4. The defendant no.1 filed written statement/counter-claim controverting the claims of the plaintiff while submitting, a. That the suit is without jurisdiction and without any cause of action. That the reliefs sought by the Plaintiff are not maintainable and are barred by the Specific Relief Act.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 7 of 50 b. That the Plaintiff has already, by the construction of a dividing wall, partitioned the property. That neither Will nor partition has been challenged by any of the parties till date.
c. That the only authority vested with the power to restrain construction in a residential premises is the Municipal Corporation of Delhi, which has in fact granted such permission for construction of the dividing wall and has also, on the first and the second floor, restrained the Plaintiff and also Ms. Anita Gupta, from even having windows on the said wall, which windows have now been blocked under the orders/ instructions of the MCD.
d. It is admitted that the Defendant No.3 is the son of the Defendant no.1 and as per the Will, was bequeathed with the second floor of the front portion. It is also admitted that Defendant No.4 is the daughter of late Dilbagh Rai Gupta, and as per the Will, was bequeathed with the second-floor rear portion of suit property.
e. That the Plaintiff and Defendant no.1 are admittedly in occupation and ownership of their respective sections of the House No.A-23, Kirti Nagar, which consists of, in the front portion of the house- ground floor, first floor and second floor, and in the rear portion of CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 8 of 50 the house-ground floor, and first and second floor under construction, in terms of the last Will and Testament of Shri Dilbagh Rai Gupta, who was the father and predecessor in interest of the Plaintiff as also the Defendants.
f. That in terms of the division of the property carried out by the last Will and Testament, a bequest of the Ground Floor on the front side was made in favour of the Defendant no.1, whereas the rear portion of the Ground Floor was sold in terms of the Agreement dated 08.02.1989 and Sale deed dated 08.03.1989 to Ms. Kusum Byotra. The rear portion sold to Ms. Kusum Byotra was particularly described in the said Agreement and Sale Deed as comprising one drawing-cum-dining room, two bedrooms, kitchen, water closet, verandah and open courtyard on the ground floor having a covered area of 128.27 sq. mtrs.
g. It is further alleged that it was specifically provided in the said last Will and Testament, regarding the rear portion of the ground floor, that while Ms. Kusum Byotra and her family members would have full liberty to use the front entrance from the main gate, however, in case she decided to sell the property, the entrance would only be from CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 9 of 50 the back lane, and the right for parking or use of the driveway shall be denied to the subsequent purchaser, unless all the occupants of the building agree to the contrary. That assuming, whilst denying, that the Plaintiff has acquired any right, interest or title in the rear portion of the ground floor of the suit property, she could in any case not have acquired a right, interest or title greater than that of her predecessor in interest, namely Ms. Kusum Byotra, in violation of the division and partition of the property carried out in terms of the last Will and Testament of Shri Dilbagh Rai Gupta.
h. It is stated that as per the site plan of the property as it existed at the time of the bequest, as compared to as it exists on date, it is revealed without any doubt that in the portion belonging to the Plaintiff, the open courtyard was covered by her after the division of the property by construction of a wall and roof over the same. That undoubtedly, the remaining portion of the property, which in any case falls in the front of the ground floor, is owned and possessed by the answering Defendant, use and enjoyment of which is now sought to be restricted by the Plaintiff.
i. It is stated that the Plaintiff, at the stage of covering her own portion, CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 10 of 50 she had made certain windows and the doors in the boundary wall in respect of which, due to the amicable relationship shared between the parties at that stage, no specific objection was made even though the same was without the permission or license of the answering defendant.
j. That however, in view of subsequent developments, as also in view of the fact that the property has been let out by the Plaintiff to tenants, the antecedents of whom are not nor verified, the answering defendant, with a view to protect his own portion of the property, raised a boundary / partition wall in his own portion, thereby blocking the doors and windows illegally constructed by the Plaintiff, which construction however, has, by use of force and through the intervention of the police at the behest of the Plaintiff, been partly demolished by the Plaintiff, as also the locks been placed by the answering defendant for his security and that of his family, have been repeatedly broken by the Plaintiff. It is stated that in fact it is the Plaintiff who is carrying on illegal and unauthorized construction in her own portion of the property.
k. Defendants have denied that the Plaintiff has any right or easement to CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 11 of 50 claim natural resources being air and sunlight through the windows and doors constructed in this boundary wall, particularly since the said wall was constructed by the Plaintiff herself and is in fact a division or partition wall dividing and partitioning the property in terms of the Will.
l. That the Plaintiff does not even have a right in terms of the Will to access the rear portion through the front driveway, since that right was expressly given only to Ms. Kusum Byotra and was restricted in case of subsequent purchasers by the Will itself. That the Plaintiff does not even have a right of ingress and no right of easement of the Plaintiff can be said to be violated by the construction of the partition / dividing wall which has being carried out by the answering defendant.
m. That it is further stated that the MCD has itself, after examination of all facets of the matter as also the title of the each of the parties, permitted the Answering Defendant to once again construct the dividing /partitioning wall, which was illegally broken down by the Plaintiff, and under the orders of the MCD, even the windows and doors set out by the Ms. Anita Gupta and the Plaintiff have been CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 12 of 50 blocked corresponding section of the wall. That it is pertinent to mention that Ms. Anita Gupta has in fact herself consented to the same.
n. That it is further stated that the answering defendant's right to privacy is also violated by the said windows and doors, since admittedly the same open into the answering defendant's portion. Hence, prayed following reliefs:
i. Grant a decree of permanent injunction restraining the defendant, her agents, representatives or anyone acting on her behalf from in any manner, interfering with or raising any hindrance to the construction of a partition/dividing wall in the suit property bounding the plaintiff's portion of the property.
ii. Grant a decree of permanent injunction restraining the defendant, her agents, representatives or anyone acting on her behalf from using the front entrance through the driveway or any other method of access to the property besides the rear access granted to the plaintiff or her predecessor in interest.
WRITTEN STATEMENT OF DEFENDANT NO.2:
5. The defendant no.2 filed written statement to the original plaint.
However, defendant no. 2 failed to file written statement to an amended portion of the plaint despite opportunity given and his right was closed vide order dated 13.12.2011. In written statement he has controverted the CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 13 of 50 claims of the plaintiff while submitting,
a) That the present suit is not maintainable in the present form. That the present suit is also liable to be dismissed on the ground of non-joinder of parties.
b) That it is admitted fact that in the suit premises, two sons and two daughters of late Dilbagh Rai Gupta are residing and the suit is based on the last Will of their late father Dilbagh Rai Gupta, but plaintiff did not make the party her sister, who is also residing in the suit premises and also a necessary party, beneficiary of that Will and hence, the present suit is liable to be dismissed.
c) That the present suit is without cause of action against the answering defendant because nowhere in the suit, the plaintiff has ever mentioned any specific cause of action against the answering defendant. That the plaintiff has no locus standi to file the present suit against the answering defendant. The plaintiff is herself raising illegal and unauthorized construction in the suit premises for which the Corporation authorities sealed the premises few days ago and not only this, on 17.10.2008, the concerned authorities demolished some portion of the suit premises of the plaintiff which and time the she was constructing illegally and CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 14 of 50 unauthorizedly and at the time of demolition, the plaintiff misled authority officials that she has obtained stay from this Court regarding demolition.
d) It is submitted that the defendant no. 2 is residing on the first floor in the front portion of the suit premises. It is submitted that the plaintiff is not residing in the suit premises and she is a resident of Alwar, Rajasthan.
e) Defendant no. 2 has submitted that Smt. Kusum Byotara executed a Sale Deed in favour of the plaintiff but contents of sale deed dated the 03.12.2007 executed by Smt. Kusum Byotara are manipulated one regarding boundaries of the suit premises in the light of last Will of late father of plaintiff and answering defendant.
f) Defendant no. 2 has denied that as per Will, the open space in front of common gallery was not given by late Shri Dilbagh Rai Gupta to anybody and defendant No.1 with the consent of answering defendant is going with illegal construction in the open space to entry of the rear portion through open space as alleged in this para. On the contrary, it is the plaintiff who is doing illegal legal construction in full swing in the Suit premises by encroaching the area of the answering defendant and defendant No.1.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 15 of 50
g) It is specifically denied that answering defendant is making any harassment to the plaintiff by illegal construction.
6. It is pertinent to note that the right of defendants no.3 and 4 to file written statement was closed vide order dated 10.10.2012 and suit was proceeded ex-parte against defendants no.3 and 4 vide order dated 05.03.2013.
ISSUES:
7. From the pleadings of the parties, following issues were framed for trial of present suit of plaintiff as well as counter-claim of defendant no. 1 vide order dated 12.12.2012:
1. Whether the plaintiff is entitled to relief of permanent injunction against the defendant no.1 & 2 restraining them from carrying any illegal construction in the common portion, as shown in red/orange color in the site plan filed along with plaint? OPP.
2. Whether the plaintiff is entitled to mandatory injunction against defendant no.1 & 2 thereby directing defendants no.1 & 2 to remove unauthorized wall adjoining drawing room, as highlighted in red color in the site plan mentioned above? OPP.CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 16 of 50
3. Whether the defendant no.1/counter claimant is entitled to decree of permanent injunction against the plaintiff thereby restraining her from interfering with or from creating any hindrance to the construction of partition/dividing wall of the suit property bounding the plaintiffs portion? OPD1.
4. Whether the defendant no.1 is entitled to decree of permanent injunction against the plaintiff thereby restraining her from using front entrance through driveway or in any other method of access to her portion of property besides rear access granted to her or her predecessor-in-interest? OPD1.
5. Relief.
PLAINTIFF'S EVIDENCE:
8. In order to prove her case, plaintiff examined following witnesses:
a) PW-1 was plaintiff herself who tendered her evidence by way of affidavit Ex.PW-1/A and relied upon following documents:
1. Ex.PW-1/1 certified copy of sale deed dated 08.03.1989.
2. Ex.PW1/2 was de-exhibited and now marked as Mark-A i.e. copy of Will dated 16.10.2002.
3. Ex.PW1/3 certified sale deed dated 03.12.2007.
4. Ex.PW1/4 site plan.CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 17 of 50
5. Ex.PW1/5 was de-exhibited and marked as Mark-B being copy of complaint dated 31.07.2008.
6. Ex.PW1/5-A was de-exhibited and marked as Mark-C i.e. statement given by defendant No.1.
7. Ex.PW1/6 (Colly.) photographs.
8. Ex.PW1/7 certified copy of suit bearing No.329/09.
9. Ex.PW1/8 certified copy of statement of Assistant Engineer MCD.
PW-1 was duly cross-examined by the Ld. Counsel for defendant no.2 and discharged on 14.07.2015. Defendant no.1 failed to cross-examine PW-1 despite opportunity given.
b) PW-2 HC Ashok Kumar from PS Kirti Nagar was a summoned witness who deposed that summoned record has been destroyed as per the orders and directions dated 23.04.2014 passed by the Additional Deputy Commissioner of Police, West District, New Delhi in pursuance of the request letter No.128, dated 07.01.2014 of SHO PS Kirti Nagar. The old record of PS Kirti Nagar in pursuance of the orders and directions dated CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 18 of 50 23.04.2014 was deposited with the Khadi and Village Industries Commission, Ministry of Rural and Agro Industries, Government of India, Gandhi Darshan, Rajghat, Delhi vide receipts dated 30.03.2015 and 31.03.2015. Same was exhibited as Ex.PW2/1 (colly.).
c) PW-3 Sh. Sanjay Dhara, Ahlmad from the Court of Ms. Pooja Talwar, Ld. ASCJ - West, Tis Hazari Courts, Delhi was also a summoned witness who brought the summoned record i.e. the record pertaining to suit bearing No.329/0 titled as Sunita Gupta Vs. Surender Gupta & Anr. presently pending before the court of Ms. Pooja Talwar, Ld. ASCJ. He proved the certified copy of the plaint which was already exhibited as Ex.PW1/7 and the same is as per the plaint of the record brought by him. He also proved the certified copy of statement of Sh. A.K. Mittal, Assistant Engineer - West Zone, MCD, Delhi, which was already exhibited as Ex.PW1/8 and stated that the same is true and correct since as per the record and same was recorded on 31.07.2009 in the suit bearing No.329/09.
PW-3 was duly cross examined by the Ld. Counsel for defendant no.2 CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 19 of 50 and discharged. Defendant no.1 failed to cross-examine PW-3 despite opportunity given.
d) PW-4 Sh. Suresh Kumar Saini was also a summoned witness who proved the site plan Ex.PW-1/4 and deposed that he prepared the site plan Ex.PW-1/4.
PW-4 was duly cross examined by the Ld. Counsel for defendant no.2 and discharged.
e) PW-5 Sh. Surender Kumar, Office in charge from MCD Building Department Karol Bagh Zone, Delhi was also a summoned witness who deposed that the summoned record is not available and same is lying with Building Department, Executive Engineer (Building), West Zone, Rajouri Garden, Delhi. He brought the copy of one page of demolition action register and copy of letter dated 20.03.2017 which were marked as Mark-X1 and Mark-X2.
PW-5 was cross-examined by the Ld. Counsel for defendant no.1 and thereafter discharged.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 20 of 50
f) PW-6 Sh. Vinod Kumar, LDC from MCD Building Department Rajouri Garden, Delhi was also a summoned witness who brought the photocopy of demolition register which was marked as Mark-X3.
g) PW-6 Sh. Kartik Taneja, Record Keeper Building Department West Zone, Rajouri Garden, SDMC, Delhi was also a summoned witness, however, he did not bring any record. He deposed that all the records which was summoned had already been transferred to the Karol Bagh Zone in the year 2012-13 after the trifurcation of MCD. The records pertaining to action taken on 17.10.2008 must be attached with the files transferred to the Karol Bagh Zone and that their office only has one register maintained as a demolition register where it has been recorded that demolition was done on ongoing construction at ground floor and first floor. He brought the certified copy of the list of the files which were transferred to the Karol Bagh Zone with me and the same was Ex.PW-6/1.
Plaintiff's evidence was closed on 05.01.2018.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 21 of 50 DEFENDANT'S EVIDENCE:
9. On the other hand, defendant no.1 examined himself as DW-1 and tendered his evidence by way of affidavit Ex.DW-1/A. DW-1 relied upon following documents:
a) Ex.DW-1/1 site plan.
b) Ex.DW-1/2 was de-exhibited and now marked as Mark-1 initial site plan.
c) Ex.DW-1/3 Will already exhibited as Ex.PW-1/X1.
d) Ex.DW-1/4 (OSR) copy of agreement to sell dated 08.02.1989
e) Ex.DW-1/5 was de-exhibited and now marked as Mark-2 copy of sale deed dated 08.03.1989
f) Ex.DW-1/6 complaint dated 10.02.2008.
g) Ex.DW-1/7 was de-exhibited and now marked as Mark-3 stop work notice from MCD, West Zone, dated 27.10.2008.
h) Ex.DW-1/8 complaint dated 19.10.2008.
i) Ex.DW-1/9 (Colly. Pages 57 to 60) 10 photographs.
j) Ex.DW-1/10 was de-exhibited and now marked as Mark-4 letter dated 03.10.2008 by Sh. D.N. Gupta.
k) Ex.DW-1/11 letter dated 05.08.2008.CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 22 of 50
l) Ex.DW-1/12 letter dated 10.11.2008.
DW-1 was duly cross examined by the Ld. Counsel for plaintiff and thereafter, discharged on 05.03.2020.
10. On behalf of defendant no.2, Sh. Manish Yadav, JA (Record Room) Tis Hazari Courts, Delhi was examined as D2W1 who was a summoned witness. He proved the certified copy of judgment dated 31.08.2017 in Suit No.11463/16 titled as Sunita Gupta v. Surinder Gupta & Ors. Certified copy of judgment was exhibited as Ex.D2W1/1.
11. It was submitted on behalf of defendant no.2 that he does not want to get himself examined and wants to close evidence. Thereafter, defendant's evidence on behalf of defendant no.2 was closed on 21.04.2022 and matter was fixed for final arguments.
12. It was submitted on behalf of defendant no.2 that he does not want to address final arguments. I have heard the final arguments on behalf of plaintiff and defendant no. 1. My issue-wise findings are as follows: CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 23 of 50
ISSUES NO.1 & 2:
1. Whether the plaintiff is entitled to relief of permanent injunction against the defendant no.1 & 2 restraining them from carrying any illegal construction in the common portion, as shown in red/orange colour in the site plan filed along with plaint? OPP.
2. Whether the plaintiff is entitled to mandatory injunction against defendant no.1 & 2 thereby directing defendants no.1 & 2 to remove unauthorized wall adjoining drawing room, as highlighted in red colour in the site plan mentioned above? OPP.
13. Both the issues are taken up together as the issue involved is inter-
connected and onus to prove is upon the plaintiff.
14. It is an undisputed fact that the suit property i.e. A-23, Kirti Nagar, New Delhi-110015 was owned by Late Shri Dilbagh Rai Gupta and that all the parties to the suit are deriving their rights in the suit property by last Will dated 16.10.2002 executed by Late Shri Dilbagh Rai Gupta. Further the Will dated 16.10.2002 (Ex. PW1/X1/Ex. DW-1/3) executed by Late Shri Dilbagh Rai Gupta is an admitted document by all the parties to the present suit.
15. Plaintiff has filed a present suit seeking reliefs of Permanent and Mandatory injunction for restraining the Defendants No.1 and 2 from CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 24 of 50 carrying any illegal construction and for directions to remove alleged unauthorized wall and RCC roof from the alleged common portion shown in "red" in the site plan of the suit property i.e. A-23, Kirti Nagar, New Delhi-110015.
16. Present suit has not been contested by defendants no.3 and 4 and the suit was proceeded ex-parte against them vide order dated 05.03.2013.
17. In brief, the present dispute revolves around the specific portion bequeathed by Late Sh. Dilbagh Rai Gupta in favour of his children vide his Will dated 16.10.2002 and the rights of his children/family members/occupants of the Suit Property qua the amenities/facilities such as right to use the front entrance, open drive way, common passage and common open area etc. Hence, it is necessary to discuss the relevant extracts of the Will dated 16.10.2002 which are reproduced as under:
"2. Shri Ravinder Gupta (Elder Son) Total Ground Floor on the front side, consisting of one drawing room., two bed rooms, two stores, one kitchen, one bath room in open space near the rear portion of the building, one w/c adjoins the second room, verandah in the front and lobby-cum-dining room before the two bedrooms and two stores with loft in the lobby. There is open space in the front having grassy lawn & mosaic flooring measuring about (15*35'). Cash and jewellery which is already in his possession, and more as, deem fit would be given to him by me hereafter.CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 25 of 50
4. Smt Anita Gupta and Smt. Sunita Gupta:
They are my daughters married in good families. They are well settled at Bombay and Alwar respectively. Mrs. Kusum Byotra is the owner and in possession of the rear portion of the house on the ground floor. (As per sale deed, Mrs. Kusum Byotra has no right on roof or any structure to be constructed over it. She cannot raise any objection for construction, sale or mortgage of this roof and there of.) My younger daughter, Mrs. Sunita Gupta wife of Shri D.N. Gupta shall be the owner 1st Floor portion over the area sold to Smt. Kusum Byotra. The elder daughter, Mrs. Anita Gupta wife of Shri S.M. Gupta shall be the owner of the 2 nd floor portion on the roof area of 1st Floor given to Mrs. Sunita Gupta.
However, it is emphasized that this roof and any construction over it, shall be used for residential purposes and nor any Commercial purpose. Further, they cannot sell, mortgage this roof or any construction over it to any outsider i.e. outside the family members without the consent of their brothers. However, it can be transferred in the name of their children. They and/or their children can use this roof or any structure over it to be constructed by them at a later date, for residential purpose. If they don't construct their respective floors by Dec.2008, both the brothers will have the right to purchase these floors i.e. Surinder Gupta will get the Ist floor from Mrs. Sunita Gupta & Ravinder Gupta will get the IInd floor from Mrs. Anita Gupta. Both the brothers will thus compensate their respective sisters with Rs.4 (Four) lakhs in exchange of this respective deal.
8. Staircase in the main building This is a common and can be used by all the children i.e. brothers and sisters in question. For its maintenance, all the persons living on 1st floor and 2nd floor in the front of the house CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 26 of 50 will contribute equally.
9. Drive way i.e., open space toward house No. A/24 This is an open space measuring about 80 ft X 10 Ft. It is common for all the families living in the building. They can park their vehicles with mutual consent. All the residents of front as well as back portion shall carry out its maintenance including cleanliness.
10. Main gate i.e. Entrance in the front:
Entrance from the main gate i.e. towards the open space on the road is common for all the members of building (front portion and back portion and portion over the garage).
Mrs. Kusum Byotra, Dr. S.P Byotra, his children, relatives and friends shall have full liberty to use it. However, at any later date, if Mrs. Kusum Byotra decides to sell her portion, she will instruct the concerned person to have his or her entry from the back lane only. They (Mrs. Kusum Byotra, Dr. S.P. Byotra or her family members relatives etc.) will have no restriction whatsoever to use this entrance and park their vehicles in the driveway. However, in case Smt. Kusum Byotra sells her portion to any outsider, they will have no right to use this entrance unless the other occupants of the building mutually agrees to it. He or she who acquires Mrs. Kusum's portion of the house shall only have the back entrance.
13. In case of Sale Of Smt. Kusum Byotra's Portion of the House:
As already decided and as per sale deed agreement my children and their heirs will have the first preference for the purchase of the portion at a cost as mutually agreed."
18. To prove her case, plaintiff got herself examined and tendered her CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 27 of 50 evidence by way of an affidavit which is Ex.PW1/A, wherein she reiterated her case. PW-1/plaintiff has placed on record Ex.PW-1/1 which is a certified copy of sale deed dated 08.03.1989 and a copy of Will of Late Sh. Dilbagh Rai Gupta dated 16.10.2002. Further placed on record Ex.PW1/3 which is a certified sale deed dated 03.12.2007 via which plaintiff has purchased ground floor of the back portion of the suit property from Ms. Kusum Byotra and a site plan (Ex.PW1/4). Further placed on record copy of complaint dated 31.07.2008 (Mark B);
statement given by defendant No.1 (Mark C) and Ex.PW1/6 (Colly.) which are photographs. Further placed on record Ex.PW1/7 certified copy of suit bearing No.329/09 and Ex.PW1/8 certified copy of statement of Assistant Engineer MCD.
19. By common portion as alleged by plaintiff, it means the common space between the front portion and back portion of the property which is now marked as X1 to X6 and Y1 to Y4, i.e. open drive way and staircase leading to upper floor at point Z as shown in the site plan (Ex.PW1/4). Same was deposed by PW-1 during cross-examination that, "The common space referring in the present suit means and includes the CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 28 of 50 common space between the front portion and back portion of the property which is now marked as X1 to X6 and Y1 to Y4, i.e. open drive way and staircase leading to upper floor at point Z (all in Ex.PW1/4)."
20. It is pertinent to note that the Defendant No. 1 failed to cross examine the Plaintiff despite opportunity given. It is trite law that in absence of cross examination, testimony as it is can be deemed as correct. At this juncture, judgment of Hon'ble High Court of Delhi in M/s Eco Lab Inc. v. Eco Labs Ltd. 2011 (185) DLT 664 may be referred, wherein it was held:
Since the plaintiff's evidence has gone unrebutted as the defendant has also failed to cross-examine the witness of the plaintiff, the evidence filed by the plaintiff is liable to be taken as correct.
21. Since the defendant no.1 did not cross-examine plaintiff/PW-1 despite the fact that Court had granted an opportunity to the defendant no.1, the averments in the plaint as well as the documents filed in support of the plaint have gone unchallenged by defendant no.1.
22. Further a bare perusal of the cross examination of PW-1 as conducted on CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 29 of 50 behalf of the Defendant no.2, shows that not a single question or suggestion was put to the witness disputing the illegal construction as carried out in the open space in form of raising wall and thereby closing the door and window of the ground floor portion at rear side as owned by the Plaintiff.
23. To further prove her case, plaintiff summoned PW-2 HC Ashok Kumar from PS Kirti Nagar was a summoned witness who deposed that summoned record has been destroyed as per the orders and directions dated 23.04.2014 passed by the Additional Deputy Commissioner of Police, West District, New Delhi in pursuance of the request letter No.128, dated 07.01.2014 of SHO PS Kirti Nagar. The old record of PS Kirti Nagar in pursuance of the orders and directions dated 23.04.2014 was deposited with the Khadi and Village Industries Commission, Ministry of Rural and Agro Industries, Government of India, Gandhi Darshan, Rajghat, Delhi vide receipts dated 30.03.2015 and 31.03.2015. Same was exhibited as Ex.PW2/1 (colly.). Defendants did not cross- examine PW-2 despite opportunity given.
24. Further summoned PW-3 Sh. Sanjay Dhara, Ahlmad from the Court of CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 30 of 50 Ms. Pooja Talwar, Ld. ASCJ - West, Tis Hazari Courts, Delhi was also a summoned witness who brought the summoned record i.e. the record pertaining to suit bearing No.329/0 titled as Sunita Gupta Vs. Surender Gupta & Anr. presently pending before the court of Ms. Pooja Talwar, Ld. ASCJ. He proved the certified copy of the plaint which was already exhibited as Ex.PW1/7 and the same is as per the plaint of the record brought by him. He also proved the certified copy of statement of Sh. A.K. Mittal, Assistant Engineer - West Zone, MCD, Delhi, which was already exhibited as Ex.PW1/8 and stated that the same is true and correct since as per the record and same was recorded on 31.07.2009 in the suit bearing No.329/09. PW-3 was duly cross examined by the Ld. Counsel for defendant no.2, however, nothing adverse came out. Defendant no. 1 failed to cross-examine PW-3 despite opportunity given.
25. To prove the site plan (Ex.PW1/4) plaintiff summoned PW-4 Sh. Suresh Kumar Saini who deposed that he prepared the site plan Ex.PW-1/4. PW-4 was duly cross examined by the Ld. Counsel for defendant no.2, wherein PW-4 deposed that, "I do not remember who has put the orange colour in the site plan Ex.PW1/4." Defendant no.1 failed to cross- CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 31 of 50 examine PW-4 despite opportunity given.
26. PW-5 Sh. Surender Kumar, Office in charge from MCD Building Department Karol Bagh Zone, Delhi was also a summoned witness who deposed that the summoned record is not available and same is lying with Building Department, Executive Engineer (Building), West Zone, Rajouri Garden, Delhi. He brought the copy of one page of demolition action register and copy of letter dated 20.03.2017 which were marked as Mark-X1 and Mark-X2.
27. PW-5 was cross-examined by the Ld. Counsel for defendant no.1, wherein he deposed that, "No action was taken on 17.10.2008 in my presence."
28. Thereafter, plaintiff summoned PW-6 Sh. Vinod Kumar, LDC from MCD Building Department Rajouri Garden, Delhi who brought the photocopy of demolition register which was marked as Mark-X3. Further PW-6 Sh. Kartik Taneja, Record Keeper Building Department West Zone, Rajouri Garden, SDMC, Delhi was also a summoned CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 32 of 50 witness, however, he did not bring any record. He deposed that all the records which was summoned had already been transferred to the Karol Bagh Zone in the year 2012-13 after the trifurcation of MCD. The records pertaining to action taken on 17.10.2008 must be attached with the files transferred to the Karol Bagh Zone and that their office only has one register maintained as a demolition register where it has been recorded that demolition was done on ongoing construction at ground floor and first floor. He brought the certified copy of the list of the files which were transferred to the Karol Bagh Zone with me and the same was Ex.PW-6/1.
29. On the other hand, to contest the present case as well as to prove his counter claim, the Defendant no.1 filed evidence by way of affidavit which is Ex. DW1/A and placed on record Ex.DW-1/1 site plan at the time of filing of suit and initial site plan (Mark 1). Further placed on record Ex.DW-1/3 Will already exhibited as Ex.PW-1/X1; Ex.DW-1/4 (OSR) copy of agreement to sell dated 08.02.1989 and copy of sale deed dated 08.03.1989 (Mark 2). Further filed Ex.DW-1/6 complaint dated 10.02.2008; stop work notice from MCD, West Zone, dated 27.10.2008 CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 33 of 50 (Mark 3); Ex.DW-1/8 complaint dated 19.10.2008; Ex.DW-1/9 (Colly. 10 photographs. Further filed letter dated 03.10.2008 by Sh. D.N. Gupta (Mark 4), letter dated 05.08.2008 (Ex.DW-1/11) and letter dated 10.11.2008 (Ex.DW-1/12).
30. The case of the defendant no.1 is that he is claiming ownership over the disputed common area as mentioned above on the basis of Will dated 16.10.2002. However, he has miserably failed to prove the same. DW-1/defendant no.1 was duly cross-examined and the relevant extracts of the cross examination of DW1 dated 22.02.2019 are as under:
"Vol. My father has written in the Will that whole front portion (except 128 sq. meter at back portion on the ground floor) at the ground floor except the staircase (which shall be common for approaching the first and second floor) shall go to me.
At this stage, the witness has been shown Ex. DW-1/3 and asked where the aforesaid voluntary deposition has been recorded. The witness replies that the same has not been recorded in Ex.DW1/3."
31. Further DW-1 has admitted that no partition of the suit property ever took place and that all the parties are deriving their rights from a Will dated 16.10.2002. Following are the relevant extracts from cross- examination of DW-1 dated 05.04.2019, CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 34 of 50 "It is correct that the rights in the property bearing No.A-23, Kirti Nagar are determined by the Will already exhibited as Ex. PW-1/X1 as well as Ex. DW-1/3 of my father Sh. Dilbagh Rai Gupta. No partition had taken place amongst me and my siblings after the death of my father with respect to the suit property."
32. DW-1 has further not disputed sale deed dated 08.03.1989 which is Ex.PW-1/1 via which ground floor of the back portion was sold to Smt. Kusum Byotra. The relevant extract of cross-examination of DW-1 dated 05.04.2019 are as follows:
"It is correct that the ground floor of the back portion of suit property was sold by my father during his lifetime to Smt. Kusum Byotra vide sale deed already exhibited as Ex. PW1/1.......... It is wrong to suggest that Ms. Sunita Gupta i.e. plaintiff had purchased the rights which were sold to Smt. Kusum Byotra vide Ex.PW-i/1 through a registered sale deed Ex.PW- 1/3.
At this stage, the witness has been shown sale deed Ex.PW-1/3. Having perused the sale deed Ex.PW-1/3, witness has stated that this sale deed is a modified sale deed.
Court Ques: What do you mean by modified sale deed? Ans. The sale deed Ex.PW-1/1 was later on modified by Ms. Sunita Gupta by showing the roof rights in her favour and also by showing her own right on the drive way and also by mentioning that defendants do not have parking rights..........
Court Obs: At this stage, it seems that witness is not understanding the questions being asked by counsel properly and replying out of context. The counsels for all parties have also stated that witness is answering out of context. The counsels for all parties have also stated that witness is answering out of CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 35 of 50 context. Accordingly, further cross deferred."
33. Defendant no.1 has failed to lead any evidence to prove his contention that sale deed (Ex.PW-1/3) was modified sale deed.
34. Further defendant no.1 has admitted the existence of door and windows opening in the open space towards the front portion of suit property. The relevant extract from cross-examination dated 21.09.2019 are such that, "It is correct that when my father Late Sh. Dilbagh Rai Gupta had sold the ground floor portion at the back side of property bearing no. A-23 Kirti Nagar, Delhi, the said ground floor portion was having door and windows, opening in the open space towards the front portion of the property. It is correct that vide Will exhibited as Ex.DW-1/3 my father had given the right to use the entrance at front side and drive way to all his family members i.e. both sons, both daughters and children."
35. Further there are contradictions in the evidence deposed by defendant no.1/DW-1. In evidence by way of affidavit (Ex.DW-1/A), he has deposed in para no.9 that, "...however in case she decided to sell the property, the entrance would only be from the back lane and the right of parking or use of the drive way shall be denied to the subsequent purchaser". Same has been contradicted in his cross-examination. The relevant extracts of his cross-examination are as follows: CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 36 of 50
"At this stage witness is confronted document Ex.DW-1/3, the Will of Late Shri Dilbagh Rai Gupta and asked where it is recorded as mentioned by you in para 9 of your Affidavit "However in case she decided to sell the property, the entrance would only be from the back lane and the right of parking or use of the drive way shall be denied to the subsequent purchaser".
The witness replied that same is recorded in document Ex.DW-1/3 at point no. 10. It is correct that in point no. 10 of document Ex.DW-1/3 it has been mentioned the entrance from the main gate i.e. towards the open space on the road is common for all the members of building. It is corrected that is has also been recorded in point no.10 It has been mentioned "in case Smt. Kusum Byotra sells her portion to any outsider, they will have no right to use this entrance unless the other occupants of the building mutually agree to it." Vol. It has been further mentioned in point 10 "He or she who acquires Mrs. Kusum's portion of the house shall only have the back entrance." I do not know whether any restrictions were imposed by Late Sh. Dilbagh Rai Gupta in his Will pertaining to the rights of Sunita Gupta on whom Late Sh. Dilbagh Rai Gupta had bequeathed the first floor portion at the rear side of property A23, Kirti Nagar, Delhi. There were no restrictions as there was no construction at the back portion at the time of Will. I do not know whether the plaintiff has all the rights, interest entitle in the ground floor portion at the rear side of the property A-23, Kirti Nagar, Delhi which Kusum Byotra was having."
36. In view of the court, the defendant no.1 has failed to prove that he is the owner of portion ABCDEFGA as shown in the site plan (Ex.DW1/1) as alleged by him. The relevant extracts from cross-examination of DW-1 dated 07.12.2019 are such that, "The witness is shown Ex.DW-1/1 and is asked that is it correct that the courtyard now pointed as ABCDEFGA was not covered CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 37 of 50 by the plaintiff; The witness replies it is correct. Vol. The plaintiff has no right on this portion ABCDEFGA so question of covering the same by plaintiff does not arise. I am the owner of the portion ABCDEFGA through Will which is Ex. DW1/3. The witness after going through the Will Ex. DW1/3 Pointed that vide para S.No.2 at page 2 of the said will he was bequeathed the Court yard ABCDEFGA by his father."
37. At this stage it is necessary to reproduce para-S.No. 2 at page 2 of Will dated 16.10.2002:
"2. Shri Ravinder Gupta (Elder Son) Total Ground Floor on the front side, consisting of one drawing room., two bed rooms, two stores, one kitchen, one bath room in open space near the rear portion of the building, one w/c adjoins the second room, verandah in the front and lobby-cum-dining room before the two bedrooms and two stores with loft in the lobby. There is open space in the front having grassy lawn & mosaic flooring measuring about (15*35'). Cash and jewellery which is already in his possession, and more as, deem fit would be given to him by me hereafter."
38. Hence, from perusal of aforesaid clause of Will dated 16,10.2002, it is clear that only one bathroom in the open space was bequeathed to defendant no.1 by Late Sh. Dilbag Rai Gupta vide his Will dated 16.10.2002. Hence, every family member of late Sh. Dilbag Rai Gupta including plaintiff is entitled to use the open are/courtyard ABCDEFGA being left as a common area.
"It is correct that by raising the wall in the open court yard the CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 38 of 50 windows and doors of the plaintiff property opening in the court yard were closed........."
"The witness has been shown the site plan Ex.DW-1/1 and asked whether is it correct that through points Z1 Z2 after entering into common gallery staircases start from points Y1 Y2 through which one can approach the roof of the building. The witness replies it is correct. The witness has been shown the site plan Ex.DW-1/1 and asked whether is it correct that through points Z1 Z2 after entering into common gallery and through points ED the plaintiff can go to her property through the door which was existing at point X1 X2. The witness replies it is correct. Vol. The plaintiff has no right to enter her property through X1 X2 as it passes through my exclusive area vide my father Will."
"It is correct that Kusum Byotra to whom my father had sold the ground floor portion of rear side in the property no. A-23, Kirti Nagar, New Delhi was using the gate XI X2 for exit and entrance into the property through point Z1Z2 and ED after crossing the court yard"
39. Further defendant no.1 has admitted that courtyard ABCDEFGA as shown in site plan Ex.DW1/1 was an open courtyard and that at present same is not open. The relevant extracts from cross-examination dated 07.12.2019 are such that, "It is correct that the court yard ABCDEFGA was open court yard. It is wrong to suggest that I have covered the court yard ABCDEFGA. It is correct that the court yard ABCDEFGA is presently not open. I do not know who has covered the court yard ABCDEFGA.
Ques: whether you had filed any complaint or case stating that somebody has covered the court yard ABCDEFGA allegedly CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 39 of 50 owned by you?
Ans: I do not know who had covered the court yard neither the complaint has been lodged for the said reason. Though I do not know who had covered but I think it may have been covered by my brother i.e. Defendant 2. Again said I know my brother has covered the court yard ABCDEFGA.
I have not mentioned the fact that the court yard ABCDEFGA was covered by my brother i.e. Defendant no. 2 either in the written statement or in my Affidavit Ex.DW-1/A. I have also not recorded either in my written statement or in my Affidavit Ex.DW-1/A that the court yard had not been covered by me. I do not know what reliefs have been sought by the plaintiff in present suit."
40. Further defendant no.1 has admitted his signatures at point A on statement dated 03.10.2008 which was marked as Mark C (Ex.DW1/PX).
41. Further in evidence by way of an affidavit Ex. DW1/A, defendant no.1 has deposed that the plaintiff has partitioned the rear portion, however, in cross-examination he has deposed to the contrary. Further in evidence, it is deposed in para no.10 that, "That I further say that the MCD has itself after examination of all the facets of the matter as also the title of each of the parties, permitted the answering defendant to once again construct the dividing/portioning wall which was illegally broken down by the Plaintiff and under the orders of MCD even the windows and doors set out by Ms. Anita Gupta and the plaintiff have been CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 40 of 50 blocked in the corresponding section of the wall..."
42. However, during cross-examination of DW-1/defendant no.1 dated 05.03.2020 he has taken a contradictory stand. The relevant extracts from cross-examination dated 05.03.2020 are such that, "Ques: Is it correct that MCD has never given you the permission for reconstructing the wall demolished earlier? Ans. MCD commissioner has visited the spot and told me to reconstruct the wall.
I do not know when the MCD commissioner had visited the spot. No written permission was given by the MCD."
43. Hence, defendant no.1 has miserably failed to prove his assertions that MCD had authorized him to reconstruct the wall which was demolished earlier. Further defendant no.1 has admitted that by raising of wall by him, the windows are blocked. Relevant extract from cross-examination dated 05.03.2020 is as follows:
"It is correct that door in the back portion at the ground floor was opening in the open space even prior to the said portion was sold to Kusum Byotra. It is correct that by raising of wall by me the windows are blocked and no light can pass through at present."
44. It is pertinent to note that despite opportunity given defendant no.2 did not step in witness box nor placed on record any documentary evidence in support of his assertions. In case titled as Vidhyadhar vs Manikrao & CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 41 of 50 Anr. AIR 1999 SC 1441 the Hon'ble Supreme Court of India has held as under, "16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
45. Hence, in view of aforesaid discussion, it is clear that the ground floor at the rear side portion of suit property was having doors and windows, even prior to the said portion being sold to Mrs. Kusum Byotra, which were opening in the open space as existing between the front portion and the rear portion. The fact that the said portion, i.e. ground floor at rear side portion of suit property was sold by Smt. Kusum Byotra to the CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 42 of 50 plaintiff has not been disputed by defendants. Plaintiff has succeeded in proving that ground floor at rear side portion of suit property was sold by Smt. Kusum Byotra to the plaintiff vide sale deed dated 03.12.2007 (Ex.PW1/3). Further during cross-examination as discussed above, defendant no.1 has admitted the fact that the said doors and windows as were existing at ground floor at rear side of suit property were closed by the defendant no.1 by raising a wall in front of the same. Admittedly, the said open space is being covered by laying RCC roof over it.
46. As per the pleadings of the defendant no.1, the said open space was covered by the defendant no.1 alleging it to be his exclusive portion as bequeathed by his father vide Will dated 16.10.2002. However, during cross examination the defendant no.1 though admits that the open space is now being covered through RCC roof, however, shows his ignorance qua the person who covered it and later alleges that the same was being covered by the defendant no.2. Clearly there are several contradictions in the evidence of DW-1/defendant no.1. Hence, his credibility is under the cloud.
CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 43 of 50
47. It is an admitted fact that the plaintiff is a family member of Dilbagh Rai Gupta besides cannot be alleged to be an outsider as far as right to purchase the ground floor at the rear side from Kusum Byotra and as such in terms of Will dated 16.10.2002, the Plaintiff has all the right to use the main gate i.e. entrance in the front as well as driveway other common portions. The defendant no.1 has duly admitted that no partition has ever taken place between the co-owners of the suit property and as such there cannot be any partition or boundary wall.
48. Through evidence the plaintiff has duly proved the site plan of the suit property (Ex.PW1/4) besides the sale deed dated 08.03.1989 whereby the ground floor at rear portion was sold by Late Shri Dilbagh Rai Gupta to Kusum Byotra and also the sale deed dated 03.12.2007 by which the plaintiff had purchased the same from Kusum Byotra.
49. Further plain reading of the Will dated 16.10.2002 clearly reflects the intention of Late Sh. Dilbagh Rai Gupta in unambiguous, clear and transparent manner that besides the ground floor at the front portion, the defendant no.1 was bequeathed with "one bathroom in open space near CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 44 of 50 the rear portion of the building" and not the "open space existing between the front portion and the rear portion".
50. Apparently, the open space which was existing between front portion and the rear portion was never bequeathed to the defendant no.1 or any other person by Late Sh. Dilbagh Rai Gupta and as such being common, no person can claim it to be his/her exclusive portion nor anybody using/enjoying the same can change the nature of the said open space by covering it with RCC roof.
51. Hence, the open space as existing between the front portion and rear portion is not an exclusive portion of the defendant no.1 as alleged. The defendant no.1 has no right to raise any wall more specifically closing the doors and windows of the ground floor rear side portion which were opening in the open space.
52. In view of aforesaid discussion, it is an admitted position of the Defendant no.1 that by raising a wall as well as by covering the open space, light cannot pass on to the ground floor portion at the rear side, CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 45 of 50 which otherwise was available and as such admittedly the easementary rights of the owner/ occupier of the ground floor portion at the rear side have been infringed by the defendant no.1 by raising wall as well as by covering the open space with a RCC roof and as such the plaintiff is entitled for the reliefs as prayed for in the suit.
53. Hence, Court is of the view that plaintiff has succeeded in proving that she is entitled to reliefs as prayed for in the prayer clause as the raising of wall as shown as AB in the site plan annexed with plaint in the open space/common area as well as covering of open space/common area with RCC roof was illegal which has resulted in blocking the easementary rights of the plaintiff. Hence, the plaintiff has successfully established her case on the touchstone of oral and documentary evidence led by her. Issues no.1 & 2 are decided in favour of plaintiff and against defendants no.1 & 2.
ISSUES NO.3 & 4:
3. Whether the defendant no.1/counter claimant is entitled to decree of permanent injunction against the plaintiff thereby restraining her from interfering with or from creating any hindrance to the construction of CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 46 of 50 partition/dividing wall of the suit property bounding the plaintiffs portion? OPD1.
4. Whether the defendant no.1 is entitled to decree of permanent injunction against the plaintiff thereby restraining her from using front entrance through driveway or in any other method of access to her portion of property besides rear access granted to her or her predecessor-
in-interest? OPD1.
54. The onus to prove these issues is upon defendant no.1/counter claimant.
However, he has miserably failed to prove the same. As discussed above, the plaintiff herein on the contrary proved her defence through cross examination of the defendant no.1 as well as by leading evidence, more specifically when the deposition made by the plaintiff qua the counter claim were not questioned on behalf of the defendant no.1 who had failed to cross examine the plaintiff.
55. The defendant no.1 is a guilty of blowing hot and cold, approbate and reprobate at the same time. The few instances are as under:
a) In the counter claim/written statement, it has been pleaded that a partition wall raised by the plaintiff however, during the cross examination the defendant no.1/DW-1 admits that no wall was raised by the plaintiff rather the same has been raised by the CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 47 of 50 defendant no.1 only.
b) In the counter claim as well as written statement it has been pleaded hat a partition has taken place between the parties and also been recognized however, during cross examination the defendant no. 1 categorically admits that no partition was ever taken place in the suit property.
56. Further in Will dated 16.10.2002, it is clearly mentioned that area of staircase and drive way shall be common to all of his children. The relevant portion of Will dated 16.10.2002 is reproduced as under:
"8. Staircase in the main building This is a common and can be used by all the children i.e. brothers and sisters in question. For its maintenance, all the persons living on 1st floor and 2nd floor in the front of the house will contribute equally.
9. Drive way i.e., open space toward house No. A/24 This is an open space measuring about 80 ft X 10 Ft. It is common for all the families living in the building. They can park their vehicles with mutual consent. All the residents of front as well as back portion shall carry out its maintenance including cleanliness.
10. Main gate i.e. Entrance in the front:
Entrance from the main gate i.e. towards the open space on the road is common for all the members of building (front portion and back portion and portion over the garage).CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 48 of 50
Mrs. Kusum Byotra, Dr. S.P Byotra, his children, relatives and friends shall have full liberty to use it. However, at any later date, if Mrs. Kusum Byotra decides to sell her portion, she will instruct the concerned person to have his or her entry from the back lane only. They (Mrs. Kusum Byotra, Dr. S.P. Byotra or her family members relatives etc.) will have no restriction whatsoever to use this entrance and park their vehicles in the driveway. However, in case Smt. Kusum Byotra sells her portion to any outsider, they will have no right to use this entrance unless the other occupants of the building mutually agree to it. He or she who acquires Mrs. Kusum's portion of the house shall only have the back entrance."
57. Hence, defendant no.1 has miserably failed to prove any of his contention. Issues no.3 and 4 are decided against the defendant no.1/counter claimant and in favour of the plaintiff. RELIEF:
58. In view of my observations herein above, the counter claim of counter-
claimant/defendant no.1 is hereby dismissed. The present suit of plaintiff is hereby decreed in favour of plaintiff against defendants no.1 and 2 with following reliefs:
a) Defendants no.1 & 2, their family members, agents, associates are hereby restrained from carrying any illegal construction in the portion of the common open portion shown as 'Red' in the site plan CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 49 of 50 annexed to the plaint;
b) Defendants no.1 & 2 are hereby directed to remove unauthorized wall shown as AB in the site plan as well as R.C.C. roof shown in Red in front of the above said passage in common open space as shown in in "Red" the site plan annexed to the plaint within 45 days from today;
c) Costs of the suit.
59. Decree sheet be prepared accordingly.
Digitally signed by
60. File be consigned to Record Room. DIVYA DIVYA GUPTA GUPTA Date:
2025.09.09 15:41:33 (This order contains 50 pages and +0530 each page has been signed by me) ANNOUNCED IN OPEN COURT (Divya Gupta) Today i.e. on 09.09.2025 Civil Judge-08 (Central) Tis Hazari Courts/Delhi CS No.99265/16 Sunita Gupta v. Ravinder Gupta & Ors. Page 50 of 50