Delhi District Court
S. Rajaraman vs Sh. Lalit Kumar Sharma on 31 October, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL
DISTRICT JUDGE CENTRAL9: DELHI
Suit No. 42/06
S. Rajaraman
S/o late Sh. R. Subramania Sharma,
R/o H. No. 21D/B, Khasra No. 57,
Yusaf Sarai, Tehsil Haus Khas,
New Delhi110006.
............Plaintiff
Versus
1. Sh. Lalit Kumar Sharma
S/o late Sh. Suraj Bhan Sharma,
R/o 39, Yusaf Sarai,
New Delhi110016.
2. Smt. Chanderwati (deceased)
through her Lrs
(a) Sh. Lalit Kumar Sharma Son
S/o late Sh. Suraj Bhan Sharma
Suit No. 42/06 Page 1 of 35
R/o 39, Yusaf Sarai,
New Delhi110016.
(b) Sh. Sanjay Sharma Son
S/o late Sh. Suraj Bhan Sharma
R/o 40/12 Yusaf Sarai,
New Delhi110016.
(c ) Sh. Raj Kumar Sharma Son
S/o late Sh. Suraj Bhan Sharma
R/o 40/12, Yusaf Sarai,
New Delhi110016.
(d)Sh. Ajay Sharma Son
R/o 40/12, Yusaf Sarai,
New Delhi110016.
(e) Sh. Dev Sharma Son
290, Gulmohar Enclave
SFS DDA Flats,
New Delhi110049.
(f)Smt. Kaushalya Sharma Daughter
First Floor H. No. 156,
Sector 11B,
Faridabad, Haryana.
Suit No. 42/06 Page 2 of 35
(g) Smt. Alka Choubey
C58, 2nd Road,
Malviya Nagar,
New Delhi110017.
(h) Smt. Rani Sharma Daughter
B69A First floor,
Mansarovar Park,
Shahadra
Delhi110032.
3. Sh. Sanjay Sharma
S/o Sh. Suraj Bhan Sharma
R/o 40/12, Yusaf Sarai,
New Delhi110016.
4. Smt. Sudesh Sharma
W/o Sh. Lalit Kumar Sharma,
R/o 39, Yusuf Sarai
New Delhi110016.
.......Defendants
Suit No. 42/06 Page 3 of 35
Suit filed on : 16.02.2006
Judgment on : 31.10.2011
JUDGMENT
1. Plaintiff has filed the present suit for permanent and mandatory injunction praying for a decree of mandatory injunction directing the defendants to shift the wall separating the passage and property of the plaintiff to its original position as shown in the site plan thereby giving back the plaintiff his 100 Sq. Yds. of the plot of land and and permanent injunction thereby restraining the defendants from carrying out any construction in the plot of land marked as passage in the site plan. The plaintiff has also prayed for issuance of directions by way of mandatory injunction to remove the gate on the North and wall on the South of passage. Suit of the plaintiff is that the plaintiff is presently the owner of suit property bearing house no.21D/B, Khasra No.57, Yusuf Sarai, New Delhi Suit No. 42/06 Page 4 of 35 admeasuring 100 Sq. Yds. Defendant no.1 and 3 are the brothers and defendant no.2 is the mother of defendant no.1 and 3. Defendant no.4 is wife of defendant no.1 and present owner of property No. 39, Yusuf Sarai as disclosed by defendant no.1. Defendant no.1 and 4 are residing at 39, Yusuf Sarai, New Delhi which is adjacent to the residence of the plaintiff separated by the passage since 1961. Defendant no.2 and 3 are residing at 40/12, Yusuf Sarai, New Delhi in the vicinity of the property of the plaintiff and defendant no.1. By sale deed dated 22.09.61 the defendant no.2 purchased plot no.21, being part of khasra No. 57 situated in the Abadi Yusuf Sarai, New Delhi admeasuring 244.83/ Sq. Yds from Choudhary Jile Singh, which was registered with the Sub Registrar, New Delhi. Soon, thereafter sometime in the year 1961 itself defendant no.1 divided the said plot No. 21 into three parts, one plot comprising of 115.60/ Sq. Yds marked as A, the other plot comprising of 106.30 Sq. Yds marked as B and the third Suit No. 42/06 Page 5 of 35 portion comprising of 22.93 Sq Yds marked as C to be used as a passage between the plot mark B and the others plot adjoining the plot B on the West and has been used as such since then. One of the two plots on the West bearing No. 39 is owned by defendant no.1. The plot Mark B is surrounded by a road in the North. The details have been mentioned in the site plan annexed to the plaint. The said site plan was also annexed by defendant no.2 to the GPA dated 24.12.99 executed by her in favour of her son Shri Sanjay Sharma, defendant no.3 which was registered with the Sub Registrar on 24.12.99. The plot mark A was transferred by defendant no.2 to one of her sons Shri Dev Sharma subsequently. She sold the plot markB to the plaintiff vide a sale deed dated 08.12.2000 through her son defendant no.3 acting as her attorney. Initially defendant no.3 agreed to sell the entire land comprising 106.30 Sq Yds to plaintiff and a sale deed was also prepared accordingly. However at the time of execution of sale deed, Suit No. 42/06 Page 6 of 35 defendant no.3 at the request of defendant no.1 took a unilateral decision and made corrections in the sale deed and sold only 100 Sq Yds of the plots Mark B to the plaintiff and added the balance 6.30 Sq. Yds of the land to the already existing 22.93 Sq. Yds passage thereby increasing it to an area of 29.23 Sq. Yds. The plaintiff was handed over 100 Sq. Yds of the land and he had to accept the changed size of the plot for fear of otherwise locking up his life's earning in a dispute. The plaintiff agreed to acquire a plot on unambiguous averments of defendants that it was three side open plot having the passage on the West, service lane on the South and road on the North of the plot. For personal reasons the plaintiff could not start the construction of the plot of land till the end of December 2004 but he had been making occasional visits to the plot to clear the garbage thrown in the plot by the neighbours and to clear the wild roots in the plot. Sometimes in the first week of January 2005, the plaintiff noticed that the Suit No. 42/06 Page 7 of 35 defendants had moved the wall which was separating the plaintiff's plot of land from the passage eastward in such a manner that the plaintiff was left with only 88.85 Sq Yds of land in the plot and the balance 11.15 Sq Yds of the lands of plaintiff was made as a part of passage thus increasing the total area of the passage to 40.38 Sq. Yds. The site plan showing the portion of land taken away from the plaintiff and added to the passage by the defendants and outlined in Red is also filed. The action of the defendant in reserving 11.15 Sq Yds of the land belonging to plaintiff without his knowledge and consent is illegal and unauthorised and thus the wall is liable to be moved back to its original position so that the plaintiff is restored 100 Sq. Yds of the land. The plaintiff also learnt that defendant no.1 in connivance with defendant no.2 is intending to further reserve the entire passage by making the construction thereon when he spotted building material at the site. On learning this, he approached defendant no.1 and 3 to seek Suit No. 42/06 Page 8 of 35 clarification but the defendant remained evasive. Defendant no.1 also constructed a wall on the southern side of passage and since January 2005 he also built a gate on the northern side of the passage which he keeps under his locks and key and thus totally blocking the access to the passage of the plaintiff. The plaintiff had intended to have a gate leading to the passage thereby giving him access to the said passage and also a window in his room opening to the passage to enable the plaintiff to have natural light and air. Defendant no.1 has two doors and also windows opening in the passage. Another property bearing No. 24D, Yusuf Sarai Village belonging to Shri Suraj Prakash which is separated by the said passage and in front of property of defendant no.1 has also windows opening in the passage. When the plaintiff started construction in April 2005 defendant no.1 did not allow plaintiff to construct the door and windows opening in the passage and held up construction works and as a matter of expediency, the Suit No. 42/06 Page 9 of 35 plaintiff chose to alter his plans and proceed without the said proposed door and windows in the passage for the time being and seek to enforce the right to passage on the western site lateron, after completion of construction. It is averred that the plaintiff would be deprived of his use of said passage altogether and thus easement rights of the plaintiff would be seriously affected in as much as the natural light and air available to the plaintiff would totally be blocked on the western side. If the defendant continues with the alleged intention of constructing the said passage, and encroached land of 11.50 Sq Yds belonging to the plaintiff, the plaintiff would be deprived of the use of said passage altogether and thus the easement rights of plaintiff would be seriously affected in as much as natural light and air available to the plaintiff would totally blocked in Western side and portion of plaintiff own land usurped by the defendants would also not be available to the plaintiff. The plaintiff had purchased the land on assurance of defendant Suit No. 42/06 Page 10 of 35 no. 2 & 3 that plaintiff would have the use of said passage and easement rights thereon at all times and it is clearly evidenced by the sale deed. Hence the present suit.
2. Suit of the plaintiff has been contested by the defendant no. 1, 2 & 3. Defendant no. 1 in his written statement has taken preliminary objection that the suit is not maintainable in the eyes of law since under the garb of injunction the plaintiff is seeking possession of the land and that the suit is without any cause of action. Objection has also been taken that the suit has not been properly valued for the purpose of court fees and jurisdiction and is also barred by principal of estoppal. On merits it is denied that defendant no. 1 & 3 are the brothers and defendant no. 2 is the mother of defendant no. 1 & 3. It is not denied that property belonging to the plaintiff and defendant no. 1 is separated by passage since 1961. It is admitted that the defendant no. 2 purchased plot no. 21 bearing part of khasra no. 57 Suit No. 42/06 Page 11 of 35 Yusuf Sarai, New Delhi admeasuring about 244.83 sq. yds on 22.9.61 from one Choudhary Jille Singh. It is denied that in the year 1961 defendant no. 2 divided the said plot into three parts as alleged. It is stated that alleged passage is forming part of property of no. 39 belonging to Smt. Sudesh Sharma, wife of defendant no. 1 and property no. 39 is not owned by the defendant no. 1 . Defendant no. 1 has also disputed the boundaries as alleged in the plaint. It is also denied for want of knowledge that alleged plot marked B was sold by defendant no. 2 to plaintiff on 8.12.2000 through defendant no. 3 . It is also denied for want of knowledge that both of them wanted to sell the land comprising of 106.30 sq.yds and the sale deed was also prepared accordingly. It is denied that at the time of execution of sale deed defendant no. 3 at the behest of defendant no. 1 unilaterally made correction in the sale deed and allegedly sold only 100 sq.yds and they added the balance of 6.30 sq.yds of the land to the existing Suit No. 42/06 Page 12 of 35 22.9sq.yds . It is stated that the land measuring 22.23 sq. yds is part and parcel of property of Smt. Sudesh Sharma. It is stated that plaintiff knowingly has not taken the steps for construction on the plot allegedly purchased by him. It is categorically denied that in January 2005 the plaintiff noticed that defendant had clandestinely moved the wall separating the alleged plot of plaintiffs land from the alleged passage. It is denied that for want of knowledge that only 88.8 sq yds of total land is with the plaintiff and balance 11.60 sq.yds is part and parcel of alleged passage. It is stated that there exists no window, door, ventilator towards the property of Smt. Sudesh Sharma and said Western wall of the alleged property of plaintiff is three storeyed house which has unauthorised construction carried out by him . It is denied that defendant no. 1 has increased the total area of the alleged passage to 40.38 sq. yds. It is asserted that land of alleged passage measuring 40.38 sq. yds is part and parcel of property no. Suit No. 42/06 Page 13 of 35 39, Yusuf Sarai which belongs to Smt. Sudesh Sharma and as such she has got every right to repair, renovate and reconstruct the said property. It is further stated that wall is already existing on the Southern side and built up gate on the Northern side of the passage which is under the lock and keys of Smt. Sudesh Sharma . It is stated that since there is no passage at all, the question of plaintiff intending to have a door leading to the alleged passage and giving him access to the said passage and also the windows in the room opening towards the alleged passage is uncalled for . There is also no question of acquiring air, light etc., by the plaintiff as the plaintiff has already completed the wall upto the third floor, thus he has also abandoned the alleged right. It is denied that the defendant had prevented the plaintiff in the month of April 2005 to construct the door and windows opening in the alleged passage. It is also denied that defendant had encroached upon the land measuring 11.15 sq.yds which allegedly belongs to the plaintiff. It is Suit No. 42/06 Page 14 of 35 stated that the plaintiff on the contrary is intending to grab the portion of property bearing no. 39, which at present belongs to Smt. Sudesh Sharma. There is no easement right accrued to the plaintiff at any point of time since the property of Smt. Sudesh Sharma is already existing for the last 45 to 50 years prior to his becoming the owner of the same. It is denied for want of knowledge that plaintiff was allowed to use the alleged passage and easement rights. It is stated that even otherwise defendant no. 1 is not bound by the contents of alleged sale deed as he has never been the party of said transaction. It has therefore been prayed to dismiss the suit of the plaintiff.
3. Defendant no. 2 in her written statement has stated that she was legal owner of the property bearing no. 21 khasra no. 57 Yusuf Sarai , measuring 222 sq. yds and she divided the said property amongst sons. She gave the Power of Attorney to her son defendant no. 3 to sell the property to Suit No. 42/06 Page 15 of 35 the plaintiff as such defendant no. 2 has nothing to do with the allegation of plaintiff and is not the necessary party. It is stated that property was 92 sq.yds and the same is in possession of plaintiff who is well aware of this fact and that same can be measured, checked and verified. The plaintiff paid amount for Rs. 92 sq. yds and it was inadvertently written 100 sq. yds on the papers. She admitted that defendant no. 3 is the brother of defendant no. 1 and residing at the Yusuf Sarai, New Delhi. She also admitted the contents of the plaint to extent that she purchased plot no. 21 being part of khasra no. 57 Yusuf Sarai, New Delhi admeasuring 222 sq. yds and not 244.83 sq. yds. She denied that portion mark C measuring 22.93 sq. yds is treated as a passage between the plot marked B and others plot adjoining plot B. it is denied that portion mark C has been used as passage since 1961 . She pleaded that portion mark C belongs to defendant no. 1 and was a separate portion and it is not in the portion of plaintiff . She Suit No. 42/06 Page 16 of 35 supported the case of defendant no. 1 that alleged portion forms part of property bearing no. 39 and is not owned by defendant no.1 but owned by Smt. Sudesh Sharma wife of defendant no. 1. It has been denied that defendant no. 3 agreed to sell the entire land comprising 106.30 sq. yds to plaintiff and sale deed was also prepared accordingly. It is further denied that at the time of executing the sale deed defendant no. 3 at the behest of defendant no. 1 took a unilateral decision and made correction the sale deed and sold only 100 sq.yds of the property mark B to the plaintiff by the said sale deed dt. 8.12.2000 and added the balance 6.30 sq. yds of the land to already existing 22.3 sq. yds passage thereby increasing it to 29.23 sq. yds passage. She also denied the allegations of moving of the wall separating the plaintiff's plot of land with the passage eastwards by the defendant no.1 in such a manner that plaintiff was left with only 88.85 Sq Yds of the plot of land. He also supported the case of defendant no.1 and 2. Suit No. 42/06 Page 17 of 35
4. In the replication, plaintiff has reasserted the contents of the plaint and controverted the averments made in the WS.
5. On the pleadings of the parties following issues were framed for consideration on 27.04.2007:
i)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP
ii)Whether the plaintiff is entitled to the relief of mandatory injunction?OPP
iii)Whether the suit is not maintainable ?OPD
iv)Whether the plaintiff has no cause of action ?OPD
v)Whether the suit is bad for misjoinder of defendant no.1?OPD
vi) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? If so, its effect?OPD
vii) Whether the plaintiff is estopped by his own conduct? If so, its effect?OPD
viii) Relief.
Suit No. 42/06 Page 18 of 35
6. In order to establish his claim the plaintiff has tendered his evidence by way of affidavit Ex. PW1/A. He also filed the affidavit of Shri S. Srinivasan, Civil Engineer. Shri N.N. Ravi, Chartered Accountant and Shri Rameshwar Dass Tiwari and Shri Baba Singh, Contractor as PW2/A to PW 5/A respectively. The plaintiff also examined Shri Vimal Kumar, Head clerk, Sub Registrar5 and Smt. Poonam, LDC, Sub Registrar7 as PW6 and PW7 respectively. On the other hand, on behalf of defendants, defendant no.1 has filed his affidavit in evidence which is Ex. DW1/A. He also filed the affidavit of Shri Ajay Sharma which is Ex. DW 2/A.
7. I have thoroughly gone through the testimony of witnesses and perused the record. I have also given the thoughtful consideration to arguments addressed by ld. Counsel for the plaintiff and the written arguments filed by Suit No. 42/06 Page 19 of 35 Ld counsel for defendants No.1 & 4 . My findings on various issues are as under: Finding on Issue No.5
8. Though defendant No.1 in his WS has taken objection that the suit is bad for misjoinder of parties since he is not the necessary party, however Ld counsel for defendants has not explained as to how defendant no.1 is not a necessary party. Though in the WS it is alleged that defendant no.1 has nothing to do with the alleged transaction of sale entered into between the plaintiff and defendants no.2 and 3 however the plaintiff has cause of action against defendant no.1 who allegedly had unauthorisedly shifted the wall of gali adjoining his plot thereby depriving him of his part of land and unauthorisedly encroached the passage . Thus, defendant no.1 is a necessary party. Issue No.5 is decided in favour of plaintiff and against the Suit No. 42/06 Page 20 of 35 Suit No. 42/06 Page 21 of 35 Finding on Issue No.4
9. The suit of the plaintiff is for permanent and mandatory injunction and it is alleged that the cause of action to file the present suit arose in his favour in first week of January 2005 when defendants unauthorisedly shifted the wall of gali adjoining his plot thereby depriving him of 11.15 Sq. Yds of the land and when defendant no.1 constructed a wall on the southern part of gali and built a gate on the northern side of the said gali. Cause of action also arose after April 2005 when defendant no.1 prevented him from constructing windows and doors opening to the gali and defendant no.1 made his intention to construct in the said gali when he found some building material. The cause of action is a bundle of facts which are to be proved by the plaintiff, to succeed in his case. The suit of the plaintiff thus has sufficient cause of action to file the present suit. Accordingly issue no.4 is decided in favour of the plaintiff and against the defendant. Suit No. 42/06 Page 22 of 35 Finding on Issues No.3 & 6
10. It has been argued that the suit of the plaintiff is not maintainable for the relief of mandatory injunction since under the garb of mandatory injunction, the plaintiff is seeking the possession of 11.15 Sq. Yds of the land. It has also been argued that the suit has been under valued for the purpose of court fees and jurisdiction. A perusal of record reveals that the plaintiff has valued the suit for the relief of permanent injunction @ Rs. 2000/ and for mandatory injunction for directing the defendant to shift the wall to its original position @ Rs. 5 lacs and for the relief of mandatory injunction for directing the defendant to remove the gate and wall is valued @ Rs. 3000/. Ld counsel for the plaintiff has also argued that since the disputed gali is the common passage and does not belong to anybody , the suit for possession does not lie. Considering that the sale deed categorically mentions the disputed area as gali, I am convinced that suit for mandatory injunction is maintainable. Further, considering that the Suit No. 42/06 Page 23 of 35 consequence of shifting of the wall would amount to possession of land measuring 11.15 Sq. Yds, the plaintiff is bound to value the suit for the purpose of court fees and jurisdiction at the market value of the said land. The plaintiff has valued the suit for the relief of mandatory injunction for shifting of wall @ Rs. 5 lacs and has also paid the court fees on the said amount. The defendant has not adduced any evidence to establish that the market value of the said portion of land is more than Rs. 5 lacs. The suit has also been overvalued and not undervalued for the relief of permanent injunction. In view of the above discussion, I am of the opinion that the suit of the plaintiff is maintainable and has also been properly valued for the purpose of court fees and jurisdiction. Issues no.3 & 6 are decided in favour of plaintiff and against the defendants.
Finding on Issue No.1
11. Sale deed Ex. PW7/1 executed by Smt. Chanderwati i.e Suit No. 42/06 Page 24 of 35 defendant no.2 through her attorney and son Shri Sanjay Singh i.e defendant no.3 in favour of the plaintiff categorically mentions the boundaries and there is mention of gali on the West side of the property bearing No. 21D/B, Khasra No. 57, Yusuf Sarai, Hauz Khas purchased by the plaintiff. The site plan Ex. PW1/1 annexed with the sale deed which bears thumb impressions of defendant no.2 and duly registered with the office of Sub Registrar also clearly shows a passage measuring 4'6" wide MarkC on the West side of the property sold to the plaintiff . PW1 has explained that initially the defendant no.3 agreed to sell the entire land comprising of 106.30 Sq. Yds to him and a sale deed was also prepared accordingly. However at the time of executing the sale deed, defendant no.3 at the behest of defendant no.1 took a unilateral decision and made changes in the sale deed and sold only 100 Sq. Yds of the plot MarkB in the site plan Ex. PW1/1 and thus adding the balance 6.30 Sq. Yds of land to already existing 22.93 Sq. Suit No. 42/06 Page 25 of 35 Yds passage thereby increasing it to 29.23 Sq. Yds passage. His testimony in this regard is also substantiated with the site plan Ex. PW1/1 which originally shows the area of passage as 22.93 Sq. Yds and area of portion B as 106.30 Sq Yds. A thorough perusal of the sale deed PW 7/1 through light, also reveals that originally "106.30" Sq. Yds was printed at the portion MarkA which has been changed to 100 Sq. Yds by putting fluid. Ld counsel for defendant has argued that the sale deed Ex. PW7/1 has not been witnessed by defendants No.1 & 4. He also argued that the plaintiff himself has admitted that he chose to alter his plan to open the window and door in the said passage which itself shows that it is not common passage but the portion of land of defendant No.1 and 4. He further argued that if it would have been the public passage the plaintiff would have a right to open the window and doors towards the alleged passage. He further argued that PW1 also admitted that he had no personal knowledge with Suit No. 42/06 Page 26 of 35 regard to the existing passage since 1961 and also admitted that the whole plot was not partitioned nor measured in his presence. He also admitted that he had not verified from MCD or the concerned authority whether it is a public passage or not. The contention of Ld counsel for defendant with regard to the public passage/MCD property is not sustainable since it is not the case of the plaintiff that Portion MarkC in the site plan Ex. PW1/1 is the public passage. It is the case of the plaintiff that defendant no.2, the mother of defendant no.1 and 3 had divided the plot No. 21 into three parts, one plot comprising of 115.60 sq. Yds Marked as A, the others plot comprising 106.30 Sq. Yds marked as B and the third portion comprising of 22.93 Sq. Yds marked as C to be used as passage between the plot marked B and the others plots adjoining the plot B on the West and has been used as such since then. Thus the passage markC was meant for being used by the plaintiff and the owner of others property adjacent to the property Suit No. 42/06 Page 27 of 35 MarkB. The contention of Ld counsel for the defendant that defendants No. 1 and 4 were not the witnesses to the sale deed Ex. PW1/7 is also not sustainable since defendant no.2 is the mother of defendant No.1 and is presumed to have knowledge of the sale deed Ex. PW1/7 executed by his mother. Even otherwise, defendant no.1 and 4 have failed to produce any document to establish their title over the portion MarkC in the site plan Ex. PW1/1. PW1 also testified that the gali on the western side of his plot has always been used as a gali. Defendant no.1 and 4 and also the owners of plot No. 24D, Shri Suraj Prakash, have windows, doors, AC openings etc towards the gali shows that all the residents have all along treated this as a gali until defendants erected a gate on the northern side, a toilet on the southern side, shifted the wall reserving his 11.5 Sq. Yds of the plot. The existence of windows, doors and AC openings in the gali in the western side of his plot also stands confirmed by the report of LC. A perusal of report of Suit No. 42/06 Page 28 of 35 LC also reveals that there is an almirah projection of about 9 inches inside passage on the right side. Above the said almirah, there is a cement built window and above that, there is a glass window opening into the passage. The photographs taken by the LC also show that the window of the property located at the southern side also opens in the passage. Since the sale deed Ex. PW7/1 and the site plan Ex. PW1/1 and the report of the LC clearly establish the existence of gali on the Western side of the property belonging to the plaintiff, and the defendant no.1 and 4 have failed to establish their title over the same, the plaintiff is entitled for the relief of permanent injunction as prayed. Issue No.1 is decided in favour of plaintiff and against the defendants.
12. Finding on issues No.2 & 7 Ld counsel for the defendants No.1 & 4 has argued that the plaintiff has admitted that there is no opening of window from the western wall of the three storeyed house towards Suit No. 42/06 Page 29 of 35 the gali. The plaintiff also admitted that he did not report the matter to the concerned police authorities when the defendant no.1 did not allow them to open the windows and doors towards the gali. The matter was also not reported to the police when the defendants shifted the wall of the passage allegedly depriving plaintiff of 11.15 Sq. Yds of the land and when the defendant No.1 constructed a wall on the southern part of the passage and build a gate on the northern side of the said passage. Thus the plaintiff by his own act and conduct is estopped from objecting the action of defendants No. 1 & 4 . It has been argued that the plaintiff has already constructed a three storey building in the plot purchased by him without agitating the action of the defendant no.1 and without giving any notice to him for allegedly encroaching the portion of the plaintiff. The act of plaintiff in this regard amounts to waiver of his right in the said portion. Ld. Counsel for defendant has also relied on the judgment of hon'ble Calcutta High Court in Chota Lal Suit No. 42/06 Page 30 of 35 Shaw Vs. Ram Gulam Shaw AIR 1975, Calcutta 436. It is asserted that the wall of defendant no. 4 exists since long and constructed by defendant no. 3 before sale of plot. The arguments addressed by ld. Counsel for defendant are not sustainable. From the testimony of PW2 it is established that plot was measuring 100 sq. yds in December 2000 immediately after purchase of land but at the time of starting construction in January 2005 it was less by 11.15 sq.yds. From the sale deed Ex. PW7/1 also it is established that property sold to plaintiff was 100 sq. yds. From the site plan annexed with sale deed which is registered with the Sub Registrar shows that the area of passage was 22.93 sq. yds and 4'6" vide whereas the report of Local Commissioner which has not been disputed by either of the parties and the site plan prepared by the Local Commissioner establishes that passage was 9'9"
wide from the Northern side and 4' 101/2" wide on the Southern side. Thus there is sufficient evidence on record Suit No. 42/06 Page 31 of 35 to establish that shifting of wall partitioning the portion of plaintiff with the gali. Further, the judgment cited by ld. Counsel for defendant in AIR 1975 Calcutta 436 is not applicable to the facts of the present case. Section 115 of the Evidence Act 1872 relates to the doctrine of estoppel and lays down " when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or representative, to deny the truth of that thing". Thus to invoke the doctrine of estoppel three conditions must be satisfied
1) Representation by a person to another
ii) the other shall have acted on the said representation. Iii) such representation shall have been detrimental to the interest of person to whom the representation has been made.
Suit No. 42/06 Page 32 of 35
In the present case none of the necessary ingredients has been fulfilled since there is neither any representation by the plaintiff nor the defendant has acted upon any such representation nor any prejudice has been caused to the defendant due to any such representation. An estoppel by conduct also come into operation if by the conduct of one party the other party has to change his position to his prejudice. It is not alleged that the defendant had to change his position due to the conduct of the plaintiff prejudicial to his interest. Estoppel deals with question of fact and not question of right or in other words there is no general rule of law that a man a estopped from asserting a right which he has said that he would not assert. The plaintiff has the right by virtue of sale deed Ex. PW7/A over the entire property purchased by him . Even otherwise it is case of plaintiff that he came to know about shifting of wall in January 2005 when he started construction of property which he had to construct in exigency and filed the present suit in February Suit No. 42/06 Page 33 of 35 2006. The act of plaintiff in not reporting the matter to police and filing the present suit after construction at the most amounts to delay and not estoppel or waiver. There is also no cross examination of PW1 on his statement as a matter of expediency he chose to alter his plan and proceeds without the proposed door and windows opening in the gali for the time being and seek to enforce the right to passage on the Western side later on after completion of the construction. Arguments of ld. Counsel for defendant with regard to waiver is also not sustainable since for a plea of waiver there must be proper pleading. The defendants have not taken the plea of waiver in their written statement . Besides this, generally accepted constitution of waiver is that to constitute waiver there is an intention of relinquishment or abandonment of legal right or privilege and it is contractual right or privilege. In the present case there is no contractual right qua the defendants which has been relinquishment by the plaintiff . In view of the above discussion, issue no. 2 & 7 are decided in Suit No. 42/06 Page 34 of 35 favour of plaintiff and against the defendants
13.Relief.
In view of my findings on the above issues, suit of the plaintiff is decreed and defendants are restrained from carrying out any construction on the plot of the land marked as passage in the site plan and directed to shift the wall separating the passage from the property of plaintiff to its original position as shown in the site plan mark X in red colour and remove the gate on the North and wall on the south of the passage. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 31.10.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
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