Delhi District Court
Zile Singh vs Hoshiar Singh on 7 March, 2025
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Presided Over By: Sh. Bharat Aggarwal
Suit No.: CS SCJ 98661/2016
CNR NO.:DLCT03-000454-2007
Zile Singh & Anr. Vs. Hoshiar Singh & Anr.
IN THE MATTER OF :-
1. Zile Singh
2. Baljit Singh
Both sons of Late Chotu Ram
r/o 475, Village & P.O. Mundka,
Rohtak Road, Near Nangloi
Delhi.
...PLAINTIFFS
VERSUS
1. Late Sh Hoshiar Singh
Through LR's
(a) Dalbir Singh (already on record as defendant No.2).
Son of Late Sh. Hoshiar Singh
(b) Balraj
Son of Late Sh. Hoshiar Singh
(c) Yogesh
Son of Late Sh. Hoshiar Singh
(d) Mukesh
CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 1 of 39
Digitally
signed by
BHARAT
BHARAT AGGARWAL
AGGARWAL Date:
2025.03.07
17:00:40
+0530
Son of Late Sh. Hoshiar Singh
(e) Jagbir
Son of Late Sh. Hoshiar Singh
(f) Smt. Dhankaur
Wife of Late Sh. Hoshiar Singh
2. Dalbir Singh
Son of Late Sh. Hoshiar Singh
All residents of:
Near Shahid Bhagat Singh Park,
Village and PO Mundka,
Rohtak Road, Near Nangloi,
Delhi.
...DEFENDANTS
Date of institution : 26.05.2007
Date of judgment : 07.03.2025
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall adjudicate a suit for permanent and mandatory injunction filed by the plaintiffs against the defendants whereby the plaintiffs have prayed for injunction against the defendants restraining them from raising any type CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 2 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:00:45 +0530 of construction in the portion Mark "A" shown in red colour of the site plan forming part of Khasra No. 603/2, 604/1, 606/2 at Village Mundka, Delhi. Plaintiffs have also prayed for mandatory injunction directing the defendants to remove/ demolish the tin-shed at Mark "B" i.e. the constructed area between points C, D, E and F shown in red colour of the site plan forming part of Khasra No. 603/2, 604/1, 606/2 at Village Mundka, Delhi. Plaintiffs have also prayed for direction against the defendants to remove the gate/chaukhat installed at point G as shown in the red colour of the site plan and direction for removal of the hand pump installed at point "A" shown in the site plan.
BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint which are necessary for the disposal of the present suit are that:
a) It is stated that both the plaintiffs are brothers and defendant no.1 is their cousin brother. Defendant no. 2 is CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 3 of 39 Digitally signed by BHARAT AGGARWAL BHARAT Date: AGGARWAL 2025.03.07 17:00:51 +0530 stated to be son of defendant no.1. It is further stated that father of the defendant no.1 alongwith the father of plaintiffs and Sh. Chandgi Ram were allotted a residential plot in Khasra No. 603/2, 604/1, 606/2 at village Mundka, Delhi measuring total 24 biswas i.e. 1200 sq. yards in Village Mundka, Delhi (hereinafter, referred to as 'the suit property or suit plot'). It is further stated that the father of the plaintiffs, defendant no.1 and uncle of the plaintiff Sh.
Chandgi Ram partitioned the said plot in the year 1992 by raising a wall in open space as shown in green, yellow and blue colours in equal shares in the site plan filed alongwith the plaint. Yellow portion came to the hands of the father of the plaintiffs, the green portion came to the share of the defendant no.1 and the blue portion came to the share of Sh. Chandgi Ram but later on, defendant no.1 and Sh. Chandgi Ram exchanged their plot with each other.
b) It is case of the plaintiff that the red portion shown in the site plan which is part of the plot to the extent of 16.5 feet CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 4 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:01:28 +0530 wide strip of land was left open as common space for the convenience of all the parties for parking of their vehicles and due to certain encroachment in the plot to the extent of 200 Sq. Yards, parties to the suit and Sh. Chandgi Ram are in possession of about 320 Sq. Yards of land each. It is stated that after the partition, the parties to the suit raised construction in their own portion from their respective funds except in the red portion which was left as an open space for passage to the defendant no.1 and for parking of vehicles and holding common family functions.
c) It is alleged by the plaintiffs that in the third week of May, 2007, the defendants starting raising construction in their front portion in the passage as shown in the red colour in the site plan. It is further stated that defendants have raised construction at Mark "B" in red portion i.e. between the points C, D, E and F and have installed a gate at point G which is blocking the ventilation of the bathroom of the plaintiffs and they have constructed a bathroom in the CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 5 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:01:32 +0530 portion Mark "B". It is alleged that the defendants have added this construction at Point B during the pendency of the suit and hence, the portion Mark "B" is liable to be demolished as the same is common property of the parties to the suit.
d) It is stated that plaintiffs have lodged a complaint to the police regarding the aforesaid encroachment on 22.05.2007 and yet, the police did not take any action. It is further stated that defendants have also installed a hand pump which is shown in photographs filed by the plaintiffs and the same was installed despite the protest of the plaintiffs. It is alleged that the defendants have no right, title and interest to raise any construction in the red portion. It is stated that the portion shown in Mark "A" in red portion in the site plan is still lying open but the defendants have an evil eye on the said portion and may encroach upon the same if he is not restrained by this court. Accordingly, in view of the aforesaid facts the CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 6 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:01:36 +0530 plaintiffs have filed the present suit seeking mandatory and permanent injunction against the defendants.
WRITTEN STATEMENT OF THE DEFENDANTS:
3. The defendants have filed a joint written statement whereby they have denied all the allegations of the plaintiffs. Defendants have inter-alia alleged that plaintiffs are not entitled to the discretionary relief of injunction. It is stated that the suit is bad for misjoinder of defendant no.2 as it is alleged that the defendant no.2 has nothing to do with the property in question. It is further alleged that the suit has not been properly valued for the purpose of court fees and jurisdiction.
4. The defendants do not deny the relationship between the parties and it is also admitted that the plot in question was partitioned in the year 1992. It is also alleged that the partition was not effective in equal shares as the person who had taken back side portion was given an extra space to CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 7 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:01:40 +0530 equalize the value between all the three plots and the portion shown in green, yellow and blue colour as the original shares in the plot of the parties was denied. It was further alleged by the defendants that the green portion came to the share of Sh Chandgi Ram and blue portion alongwith red portion came to the share of defendant no.1 and there was no exchange made between Sh. Chandgi Ram and the defendant no.1 at any time.
5. The defendants denied that the red portion to the extent of 16.5 feet wide was left open for the convenience of all the parties to the suit for parking of the vehicles and for use of common family functions. It was also averred that the red portion is a part of Khasra No. 606/2 which has not been mentioned in the present plaint by the plaintiff. Further, it was averred by the defendants that as the portion which was given to the defendant was on the back side, therefore, to equalize the value of all the three portions, the red portion was also given to the defendants during the partition. CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 8 of 39
Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:01:45 +0530
6. It was further admitted by the defendants that no construction was raised in the front side portion of the plot and it was further admitted that the construction in the front portion was started by the defendant No.1 recently and it is stated that the defendant no.1 has given his portion shown in blue and red colour to Sh. Yogesh Lakra i.e. son of defendant no.1 who is carrying on the construction in the portion shown in red.
7. It was stated that the red portion was never common and nobody would allow parking of vehicle or holding of functions in front of the gate as to obstruct the passage of the said person in his own property. Further, it is alleged that defendants have all the rights to raise construction in the portion shown in red colour of the site plan and the hand pump is alleged to have been there since long and has not been installed recently. It was further alleged that the plaintiff has made construction in his portion by opening ventilation towards red portion shown at Mark "A" and period of 20 CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 9 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:01:50 +0530 years has not expired since when the ventilation was opened and the same was done without consent of defendant no.1 and thus, the defendants have a right to close the said ventilation and plaintiff cannot claim any right of easement against the defendants. Defendants further admitted that the door is fixed in the straight line of bathroom in portion B for ensuring security of their portion.
REJOINDER:
8. Plaintiffs have filed a rejoinder to the written statement of the defendant whereby the contents of plaint were re-affirmed and reiterated. The plaintiffs have inter-alia stated in the rejoinder that it is absolutely wrong on the part of the defendant to allege that extra space was given to the person who is on the back side of the plot and it is further absolutely wrong to allege that the red portion was allotted to the defendant no.1 during the partition.
9. Further, it is averred by the plaintiffs in the rejoinder that the CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 10 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:01:54 +0530 intention of defendant no.1 is malafide to defeat the suit of the plaintiff by introducing his son Sh. Yogesh Lakra whereas the defendant no.1 himself has possession of property and has carried out construction in the red and blue portion. ISSUES:
10. From the pleadings of the parties, following issues were framed by this Court vide order dated 14.01.2009:-
1. Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP.
2. Whether the plaintiff is entitled to a decree for mandatory injunction, as prayed for? OPP.
3. Whether the suit is bad on account of non-joinder/mis-joinder of parties?
OPD2.
4. Whether the plaint has not been duly verified, if so, its effect? OPD.
5. Whether the plaintiff has not complied with the provisions of Order VI Rule 15 (4) CPC, if so, its effect? OPD CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 11 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:01:58 +0530
6. Whether the suit is undervalued? OPD.
7. Relief.
PLAINTIFF'S EVIDENCE:
11. In order to prove his case, plaintiff No. 1 Sh. Baljeet Singh examined himself as PW-1 and he relied upon his evidence by way of affidavit i.e. Ex.PW-1/A. PW-1 further relied upon the following documents:
i. Ex. PW-1/1 being the site plan;
ii. Ex.PW-1/2 to Ex.PW-1/6 (colly.) being the photographs;
iii. Ex.PW-1/7 being the copy of complaint dated 22.05.2007;
iv. Mark-A being the copy of compromise dated 22.05.2007; and v. Ex.PW-1/9 being certified copy of Khatoni Pamiash.
PW-1 was examined, cross-examined and discharged on CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 12 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:02:01 +0530 21.07.2010.
12. Thereafter, Sh. Dharambir Singh was examined as PW-2 who filed his evidence by way of affidavit as Ex.PW2/A. He inter-
alia deposed that he is son of Sh. Chandgi Ram and after allotment of plot in question in the year 1992, Sh. Chandgi Ram, Sri Ram and Chhotu Ram partitioned their plot as shown in the Ex.PW1/1. He further deposed that it was decided in the said partition that red portion shown in the site plan shall be common area of all the three sides and it was left open for entrance and for common use i.e. parking of vehicles and family functions. He further deposed that defendant and his sons have no right, title or interest in the red portion as it is common property and defendant no.1 arbitrarily encroached upon the red portion in the site plan and installed a hand pump therein. PW-2 was cross-examined and discharged on 24.05.2013.
13. Plaintiff also called Sh. R.S. Yadav as witness PW-3 in the CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 13 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:05 +0530 present suit who had prepared the site plan Ex.PW3/A. He was cross-examined and discharged on 26.08.2013. Plaintiff also examined Sh. Rewati Prasad Sharma, Patwari, SDM Office, Nangloi as PW-4 who brought the Khatauni Register of Khasra No. 603/2/2, 604/1 and 606/2 of village Mundka as Ex.PW1/9. He was cross-examined and discharged on 10.09.2013.
DEFENDANT'S EVIDENCE:
14. Defendants examined Sh. Yogesh Lakra/ one of the sons of deceased defendant No.1 as witness DW-1. He filed his evidence by way of affidavit as Ex.DW1/A and reiterated the stand of the defendant and he did not rely upon any document. He was cross-examined and discharged on 01.05.2018.
15. Defendant further examined Sh. Dalbir Singh, one of the other son of the deceased defendant no. 1 and he filed evidence by way of affidavit as Ex.DW1/A. He inter-alia CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 14 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:02:10 +0530 deposed that the suit property came to the share of his younger brother i.e. Sh. Yogesh Lakra and Sh. Yogesh Lakra is the owner of the suit property and that no space was ever left open for convenience of all the parties for parking of vehicles. DW-2 was cross-examined and discharged on 04.01.2019 and no other witness was examined on behalf of the defendants.
ARGUMENTS OF BOTH THE SIDES:
16. Ld. counsel for the plaintiff argued that the suit deserves to be decreed as it has been proved on record by the plaintiff that the portions Mark-B on the site plan Ex.PW1/1 have been encroached upon the defendant. It was further argued that the case of the plaintiff has been proved by the testimony of PW1 and PW2. Ld. Counsel for the plaintiffs argued that defendants have illegally made constructions at portion B during the pendency of the present suit and they have ill intention to make construction at portion A. Thus, it was argued that plaintiffs are entitled for decree of mandatory and CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 15 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:14 +0530 permanent injunction against the defendants.
17. Per contra, it was argued on behalf of the defendants that the portion shown at Mark-B in the site plan Ex.PW1/1 was part of the property belonging to the defendants as the same came to the share of the defendants upon partition. It was further argued that defendants have not encroached upon the common portion as the land in front of the portion in blue colour in site plan between points C, D, E and F belongs to the defendants as per the partition. It was further argued that the plaintiff has malafide intention to grab land which belongs to the defendants and the present suit has been filed by the plaintiff only to harass the defendants. ANALYSIS WITH REASONS:
18. I have heard the counsels for both the sides and have perused the record. With regard to the issues framed vide order dated 14.01.2009, my issue-wise findings are as follows: CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 16 of 39
Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:18 +0530 ISSUE NO. 3:
3. Whether the suit is bad on account of non-joinder/mis-
joinder of parties? OPD2.
19. The defendant has vaguely stated in the written statement that the present suit is bad for misjoinder of defendant no.2. It is stated that defendant no.2 has nothing to do with the property in question and he is not doing any act and as such, he has been wrongly joined in the present suit by the plaintiffs.
20. Perusal of plaint shows that plaintiff has inter-alia alleged that both the defendants started raising construction in the suit property and also dug the foundation in the portion shown in red colour in the site plan. Plaintiff has further alleged that the defendants have raised constructions at point shown as Mark- B in the site plan. Plaintiff has further alleged that defendant no.2 i.e. the son of defendant no.1 is also conniving with the defendant no.1 and he also has ulterior motives to grab the suit property. Defendants on the other hand, have alleged that CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 17 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:23 +0530 defendant no.2 has nothing to do with the suit property as the other son of defendant no.1 Sh. Yogesh Lakra is carrying construction in the red portion of the suit property.
21. Defendant no.2 has also appeared as the witness in the present suit as DW-2. In his evidence by way of affidavit i.e. Ex.DW-2/A, he has inter-alia deposed that he has nothing to do with the suit property as his father partitioned all his properties during his lifetime and the suit property went to the share of his younger brother i.e. Sh. Yogesh Lakra who is alleged to be owner of the suit property. During his cross- examination, he further deposed that the suit property was orally partitioned in the year 1992 and he was present at the time of said partition. In view of such deposition of defendant no.2/DW-2, it cannot be construed that he is not a necessary or even proper party to the present suit.
22. In fact, bare perusal of pleadings of both the parties shows that defendant no.2 is a proper party to the present suit and CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 18 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:27 +0530 even otherwise, record shows that defendant no.1 passed away during the pendency of the suit and the legal heirs of deceased defendant no.1 including defendant no.2 and Sh. Yogesh Lakra were already substituted in place of deceased defendant no.1. Hence, due to passage of time, the issue at hand has lost its relevance.
23. In the aforesaid circumstances, it cannot be held that the present suit is bad for misjoinder of defendant no.2 or that the suit is liable to be dismissed only on account of joinder of defendant no.2 by the plaintiff. Be that as it may, perusal of pleadings and consideration of the evidence led on record shows that the suit as it was instituted, did not suffer from any such legal infirmity regarding non-joinder of necessary parties. Accordingly, this issue is decided in favour of plaintiff and against defendant no.2. ISSUES NO. 4 & 5:
4. Whether the plaint has not been duly verified, if so, its effect? CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 19 of 39 Digitally signed by BHARAT AGGARWAL
BHARAT AGGARWAL Date:
2025.03.07 17:02:31 +0530 OPD.
5. Whether the plaintiff has not complied with the provisions of Order VI Rule 15 (4) CPC, if so, its effect? OPD
24. These two issues shall be decided together as they are inter-
linked and interconnected.
25. It is stated on behalf of defendants in the written statement that the plaint has not been duly verified in accordance with law and the verification does not contain the para numbers and the said para has been left blank. Further, it is stated that Order VI Rule 15 CPC has not been complied with by the plaintiff and hence, the plaint is liable to be dismissed.
26. It is pertinent to mention here itself that no arguments were advanced from both the sides with regard to the aforesaid issues. Perusal of plaint shows that the amended plaint was filed by the plaintiffs on 18.10.2007 and the same was taken on record vide order dated 23.09.2008. Thereafter, issues CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 20 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:35 +0530 were framed in the present suit on 14.01.2009.
27. Bare perusal of such amended plaint shows that the same contains a verification clause and the relevant paras which are believed to be true and correct by the plaintiffs of their own knowledge or information have been duly mentioned in such verification clause. Further, the plaint is duly accompanied with affidavit of plaintiff no.2. In these circumstances, it cannot be held that the plaint has not been duly verified or that the mandatory requirements of Order VI Rule 15 CPC have not been complied with. Even otherwise, it is trite that the omission to verify pleading is merely irregularity and the same does not merit rejection of the plaint or dismissal of the suit. Accordingly, the aforesaid issues are also decided in favour of plaintiffs and against the defendants. ISSUE NO. 6:
6. Whether the suit is undervalued?
OPD.
CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 21 of 39
Digitally
signed by
BHARAT
BHARAT AGGARWAL
AGGARWAL Date:
2025.03.07
17:02:39
+0530
28. In respect of this issue as well, no arguments were advanced by either side. Defendant has taken a preliminary objection that the suit has not been properly valued by the plaintiffs for the purpose of court fees and jurisdiction and proper court fees has not been paid. It is stated that plaintiffs have claimed several reliefs and he ought to have valued every relief separately. In response/rejoinder, plaintiffs have averred that they have valued the suit properly for the purpose of court fees and has paid proper court fees. However, none of the parties have clarified or advanced any argument with regard to the actual court fees required to be paid by the plaintiffs for the relief sought.
29. Para 18 of the plaint reveals that plaintiffs have specifically averred that the value of the suit for the purpose of court fees and jurisdiction qua reliefs of permanent and mandatory injunction is Rs.130/- each and requisite court fees has been affixed on the plaint. Perusal of plaint shows that plaintiffs have actually affixed court fees of Rs.26/- alongwith the CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 22 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:43 +0530 present plaint.
30. At this stage, Section 7 (iv) (d) of the Court Fees Act, 1870, as applicable to the National Capital Territory of Delhi, is required to be taken note of. The said provision inter-alia provides that in an injunction suit the plaintiff shall pay the court fees according to the amount at which the relief sought is valued in the plaint. It is further provided in first proviso to Section 7 (iv) of such Act that the minimum court fees in each case shall be Rs.13/-. Therefore, it does not appear that the valuation of both the reliefs of injunction sought by the plaintiffs in the present suit at Rs.130/- each is inadequate or improper.
31. The plaintiffs have sought relief of permanent injunction in prayer clause (a) and they have sought relief of mandatory injunction in prayer clause (b) and hence, both the reliefs have been valued for the purpose of court fees and jurisdiction at Rs.130/- each. The plaint has further revealed CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 23 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:47 +0530 that the plaintiffs have paid a court fees of Rs.26/- alongwith the plaint which is in consonance with Section 7 (iv) (d) of the Court Fees Act, 1870, as applicable to the National Capital Territory of Delhi. Hence, there is no force or merit in the averment of the defendants that the plaint has not been valued properly by the plaintiffs for the purpose of court fees and jurisdiction. Accordingly, this issue is also decided in favour of plaintiffs and against the defendants. ISSUES NO. 1 & 2:
1. Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP.
2. Whether the plaintiff is entitled to a decree for mandatory injunction, as prayed for? OPP.
32. Briefly stated, it is the case of the plaintiffs that they are the sons of Sh. Chhotu Ram and defendant no.1 is the son of Sh. Shri Ram. Sh. Shri Ram, Sh. Chhotu Ram and Sh. Chandgi Ram are stated to be brothers and sons of Sh. Puran Singh. It CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 24 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:50 +0530 is stated that the plot in question/suit plot was partitioned between the sons of Sh. Puran Singh in the year 1992 by raising walls in three equal parts as shown in green, yellow and blue in the site plan annexed with the plaint. It is alleged that yellow portion came to the share of plaintiffs whereas the blue portion came to the share of defendants and green portion came to the share of Sh. Chandgi Ram.
33. Plaintiffs have alleged that the area of 16.5 feet wide strip of land shown in red colour in the site plan was left open outside the partitioned plot for parking of vehicles and common use and such red portion shown in the site plan was also an open space. It is alleged that in the third week of May, 2007, defendants started raising construction in the front portion, shown in red in the site plan and they dug the foundation in the passage despite having no right, title or interest over red portion in the site plan. It is also alleged that defendants raised construction at area identified as Mark-B in the site plan between points C, D, E and F and also installed a gate at CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 25 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:02:54 +0530 point G, thereby blocking the ventilation of bathroom of the plaintiffs. Hence, plaintiffs have filed the present suit seeking permanent injunction against the defendants restraining them from making any construction in the portion identified as Mark-A in red colour and further, a mandatory injunction seeking demolition of the tin-shed portion shown as Mark-B in the red portion in the site plan, filed alongwith the plaint.
34. On the other hand, defendants have vehemently opposed the present suit by inter-alia alleging that the partition was not effected in equal shares between the brothers as the person who had taken the backside (i.e. predecessors-in-interest of the defendants) was given extra space in the front to equalize the value between all the three plots. The defendants further denied that the red portion to the extent of 16.5 feet wide was left open for convenience of all the parties for parking vehicles and for common family functions. It is the case of the defendants that the portion shown in red colour in the site plan was never common and belongs exclusively to defendant CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 26 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:02:58 +0530 no.1 as per the partition effected between the parties.
35. Bare perusal of the pleadings and the evidence led on record between the parties shows that most of the contentions of the plaintiffs regarding partition between three brothers and allocation of portions shown in green, yellow and blue colour to the respective parties in the site plan Ex.PW-1/1 has been admitted by the defendants.
36. The controversy in the present case revolves around portion identified as Mark-A which is a space in front of plot of the plaintiffs shown in yellow colour. The major point of controversy between the parties is regarding the portion identified as Mark-B which is the space between points C, D, E and F in the site plan Ex.PW-1/1 in front of the plot of the defendants which has allegedly been constructed by the defendants about the time when the suit was filed. The fulcrum of the dispute is that plaintiffs allege the said area to be common portion and common property of all three sons of CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 27 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:03:02 +0530 Sh. Puran Chand, whereas defendants allege such portion to be their exclusive property which was given to them at the time of partition itself in the year 1992. Thus, to be entitled for the injunctions sought in the plaint, plaintiffs were required to prove on record on a scale of preponderance of probabilities that the areas identified as Mark-A and Mark-B in the site plan Ex.PW-1/1 were not subject matter of partition in the year 1992 and were rather meant for common use of all the three parties.
37. It is very pertinent to note here itself that it is the not the case of the defendants that the portion marked at point B was constructed in the year 1992 and DW-1 has admitted that he himself constructed the rooms in the disputed portion in May, 2007 i.e. around the time when the suit was filed. Further, perusal of the written statement filed by the defendants shows that defendants explicitly admit that construction in the front portion i.e. the area in red colour identified as Mark-B was carried out recently i.e. at the time of filing of written CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 28 of 39 Digitally signed by BHARAT AGGARWAL BHARAT AGGARWAL Date:
2025.03.07 17:03:06 +0530 statement, by them. Comprehensive perusal of the pleadings as well as the evidence led on record by the parties would reveal that defendants had miserably failed to prove that the portion identified as Mark-B between points C, D, E and F in the site plan Ex.PW-3/A or Ex.PW-1/1 is part of their private property and not common property. Even otherwise, the testimony of PW-2 who is a third party and independent to the claims of the both the sides, has supported the version of the plaintiffs.
38. Sh. Dharambir Singh is the son of Sh. Chandgi Ram who was given the portion shown in green colour in the site plan and bare glance of the site plan itself shows that he is an independent party to the controversy between the plaintiffs and defendants. PW-2 Sh. Dharambir Singh has specifically deposed that the portion shown in red colour i.e. mark-A and B shown in the site plan i.e. Ex.PW-1/1 was common area of all the parties and left open for common use during the partition. He further specifically deposed that the defendant CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 29 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:11 +0530 has arbitrarily encroached in the red portion of the site plan. He was also cross-examined on behalf of the defendants, whereby he stood up well to the rigours of cross-examination and he specifically deposed that the passage was left open in the common plot for reaching respective houses of the parties. His cross-examination reveals that there is no reason to disbelieve his version and his testimony is found to be worthy of credit and inspires confidence of this Court. Such evidence of PW-2 Sh. Dharambir Singh, who has no concern with the portion of the plot occupied either by the plaintiffs or defendants, has given more strength to the foundation of pillars laid down by the testimony of PW-1. Hence, when testimonies of PW-1 and PW-2 are read in consonance and considered together, it can be clearly deduced that the scales of preponderance have titled in favour of the plaintiffs and against the defendants. It becomes quite apparent that the plaintiffs duly discharged their initial burden on the scale of preponderance of probabilities as required under Chapter VII of the Indian Evidence Act, 1872. CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 30 of 39
Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:15 +0530
39. In these circumstances, it was incumbent upon the defendants to lead cogent evidence on a scale of preponderance of probabilities to prove that the portion shown in the site plan at Mark-B was part of the private property of the defendants as decided in the partition which took place in the year 1992. However, consideration of the evidence led on record by DW-1 as well as DW-2 has revealed that defendants have miserably failed to prove the same.
40. Analysis of the evidence led on record by the defendants shows that DW-1 has failed to prove that his plot shown in blue colour in the site plan would be of a very less value as compared to the equally sized green or yellow portion. No evidence to prove the value of the portion in Mark-B was led on record by the defendants to prove that valuation of the red portion in Mark-B alongwith the plot of the defendants in blue colour would equalize the value of yellow or green plot. The entire case of the defendants is that to equalize the value CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 31 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:20 +0530 of all the portions, he was given the portion shown at Mark-B in addition to the blue portion in front of his plot, however, such value equalization has remained miserably unsubstantiated throughout the trial. Even otherwise, it is quite apparent that such strip of land in front of the plots are usually and very commonly kept open for ease of ingress and egress of all plot owners and the very fact that construction/boundary was not made therein at the time of partition goes on to prove the allegations of the plaintiffs that it was meant for common use.
41. Ld. Counsel for defendants argued that the suit of the plaintiffs would also not be maintainable as despite alleging the portion shown in Mark-A and Mark-B as common property, plaintiffs have not sought partition of such portions. However, in the considered opinion of this Court, such arguments is bereft of any merit as when one of the co- owners seeks to encroach upon the property which is jointly owned and possessed by all, suit for injunction, without CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 32 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:24 +0530 seeking partition, is maintainable. Even otherwise, since the case of the plaintiffs is that the strip of land which is 16 feet wide was kept open in front of all the plots for common use, in such circumstances, such common way or road for ingress or egress of private property cannot be partitioned. For such purpose, certain observations of the Hon'ble High Court of Allahabad in Phool Kumar vs. Shyam Singh and Ors. [MANU/UP/1788/2023] are relevant and reproduced below:
"14. The Full Bench decision in the case of Chhedi Lal (supra) delivered on 16.11.1950 has not been overruled till date. The Full Bench held that while it was not an absolute rule to deny injunction to one co-owner against another co-owner but it can be granted when an exclusively co-owner uses a unpartitioned property to the exclusion of right of others co-sharers. In other words, the Full Bench accepted right enjoyment of property by co-sharers inter se, i.e. an interest and right of a co- sharer in a property with those others is absolute, but this rightly stands qualified by the interest of other co- owners. The Full Bench referred to the judgement of the Judicial Committee in Robert Watson and Co. v. Ram Chand Dutt and others;
CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 33 of 39
Digitally
signed by
BHARAT
BHARAT AGGARWAL
AGGARWAL Date:
2025.03.07
17:03:28
+0530
MANU/PR/0009/1890MANU/PR/0009 /1890 : (1989-90) L.R. 17 I.A. 110, which runs as under :
"It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India a large proportion of the lands, including many very large estates, is held in un- divided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross-injunctions, have to remain altogether without cultivation until all the shareholders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected-a work which, in ordinary course, in large estates would probably occupy & period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the courts of justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience, and if, in a case of shareholders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 34 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:33 +0530 work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital."
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19. Then having discussed the law as above Full Bench finally held as under :
"As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to co-sharer, whose right in respect of joint land has been a invaded by the other co-
sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the distinct matters. entitled to object to While therefore a co-sharer is another co-sharer exclusively appropriating land to himself to the detriment of other co- sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. The court may feel persuaded to grant both the reliefs if the evidence establishes that CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 35 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:37 +0530 the plain till cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief. the court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the court to lay down an inflexible rule as to the circumstances in which the relief for demolition injunction should be granted or refused."
20. In view of, the above exposition of principle of law on grant of injunction to a co-sharer, entire discretion to grant injunction to other co-sharer is held to be dependant upon the facts of each case and the testing point is, as to whether one co-sharer is trying to appropriate unpartitioned land by raising construction to the disadvantage of the other co-sharer.
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CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 36 of 39
Digitally
signed by
BHARAT
BHARAT AGGARWAL
AGGARWAL Date:
2025.03.07
17:03:42
+0530
22. In the case of Awadh Narain (supra), this Court had held that if one of the co- sharers intended to raise construction without there being any partition between the co-sharers in metes and bounds, i.e. demarcating exclusively their rights shares in the property, then injunction should not be denied to a co- sharer against the other merely on a premise that construction would be raised at the risk of the person concerned and it would be pulled down at the time the decree is passed. The Court, therefore, held that if any co- sharer is raising construction on an undivided and unpartitioned land, he can be injuncted from doing so."
42. In these circumstances, it can be observed that plaintiffs have proved their allegations that the portion shown in Mark-A and Mark-B in the site plan Ex.PW-1/1 were not partitioned between the parties and were meant for common use being the front side of all the plots. Plaintiffs have proved through cogent evidence on a scale of preponderance of probabilities that defendants have illegally encroached and made construction over the portion shown at Mark-B between points C, D, E and F in the site plan and such construction made by the defendants over common area/road is liable to be CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 37 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:46 +0530 demolished as defendants have no exclusive legal rights over such portion. Hence, both the aforesaid issues are decided in favour of the plaintiffs and against the defendants. RELIEF:
43. In view of the discussion hereinabove, the suit of the plaintiffs is hereby decreed with the following reliefs:
(a) A decree of permanent injunction is granted in favour of the plaintiffs and against the defendants restraining the defendants from raising any type of construction in the portion shown at Mark- A shown in red colour in the site plan Ex.PW-1/1 i.e. in front of the yellow portion plot in the suit property i.e. Khasra No. 603/2, 604/1, 606/2 at Village Mundka, Delhi; and
(b) A decree of mandatory injunction directing the defendants to remove/demolish the construction made at the portion shown at Mark- B between the points C, D, E and F CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 38 of 39 Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:50 +0530 shown in red colour in the site plan Ex.PW-1/1 in the suit property i.e. Khasra No. 603/2, 604/1, 606/2 at Village Mundka, Delhi, including the gate installed therein which is beyond the boundary of the blue portion as in the site plan Ex.PW-1/1.
44. Costs of the suit are also awarded in favour of the plaintiffs.
Decree sheet be prepared accordingly.
45. File be consigned to Record Room after due compliance. Digitally signed by BHARAT
BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:04:02 +0530 ANNOUNCED IN OPEN COURT (Bharat Aggarwal) Today i.e. 07.03.2025 ACJ-cum-ARC (Central) Tis Hazari Courts/Delhi Present judgment consists of 39 pages and each page bears my initials.Digitally signed
by BHARAT
BHARAT AGGARWAL AGGARWAL Date:
2025.03.07 17:03:56 +0530 (Bharat Aggarwal) ACJ-cum-ARC (Central) Tis Hazari Courts/Delhi 07.03.2025 CS SCJ No. 98661/2016 Zile Singh Vs. Hoshiar Singh Page 39 of 39