Delhi District Court
Khubi Ram & Ors. vs . Jagat Singh & Anr. on 30 September, 2010
Khubi Ram & Ors. Vs. Jagat Singh & anr.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-CUM-
GUARDIAN JUDGE (WEST): DELHI
Suit No. 26/08
Unique Case ID No. 02401C0100222002
1. Sh. Khubi Ram S/o Sh. Brahm Dutt
R/o H.No.128, Village Shahpur Jat,
New Delhi.
2. Sh. Jai Pal S/o Sh. Shyam Lal (Since deceased)
Through L.R.s
a) Smt. Basanti w/o Sh. Jai Pal Singh
b) Shri Jagdish S/o Sh. Jai Pal Singh
c) Kumari Seema D/o Sh. Jai Pal Singh
3. Sh. Rajesh S/o Sh. Shyam Lal
4. Sh. Ajay S/o Sh. Shyam Lal
R/o H.No.129-B, Village Shahpur Jat,
New Delhi.
5. Sh. Vinod S/o Sh. Prem
6. Sh. Vijender S/o Sh. Prem
R/o H.No.82, Village Shahpur Jat,
New Delhi.
7. Sh. Umesh Chand S/o Sh. Kishore Chand
8. Sh. Dinesh Chand S/o Sh. Kishore Chand
9. Smt. Kela Devi W/o Sh. Kishore Chand (Deleted vide order dated)
R/o H.No.109, Village Shahpur Jat,
New Delhi.
10. Sh. Kishan S/o Sh. Raghbir Singh (Deleted vide order dated )
R/o H.No.127, Village Shahpur Jat,
New Delhi.
11.Sh. Nand Lal S/o Sh. Bansi Lal
R/o H.No.127, Village Shahpur Jat,
New Delhi.
12.Sh. Sat Parkash S/o Sh. Bansi Lal
R/o H.No.56, Village Shahpur Jat,
New Delhi.
......Plaintiffs
Versus
Suit No. 26/08 Page 1/16
Khubi Ram & Ors. Vs. Jagat Singh & anr.
1. Sh. Jagat Singh S/o Sh Chandan Singh (Since deceased)
Deceased through his L.R.s
a) Smt. Triveni W/o Late Sh. Jagat Singh
b) Sh. Jai Singh S/o Late Sh. Jagat Singh
c) Sh. Surender Singh S/o Late Sh. Jagat Singh
d) Sh. Kuldeep S/o Late Sh. Jagat Singh
e) Smt. Maya D/o Late Sh. Jagat Singh
f) Smt. Lachhmi D/o Late Sh. Jagat Singh
g) Smt. Satto D/o Late Sh. Jagat Singh
R/o H.No.126-A, Village Shahpur Jat,
New Delhi.
2. Sh. Lachman Singh, deceased through his L.R.
Smt. Manish w/o Sh. Lachman Singh
R/o H.No. 129-A, Village Shahpur Jat,
New Delhi. .....Defendants
Date of institution of the suit : 13.01.1992
Date on which order was reserved : 01.09.2010
Date of decision : 30.09.2010
JUDGMENT
1. The plaintiffs filed a suit for permanent and mandatory injunction against the defendants for the following reliefs:
"a) A decree for permanent injunction restraining the defendant no.
1 from making/raising any construction over any portion of the land measuring 60 square yards situated in Khasra no.511, Village Shahpur Jat, New Delhi (Hereinafter referred as 'the suit land') more particularly shown as D G H I in red colour in the site plan Ex.PW-1/1 as well as from encroaching upon the suit land.
b) A decree for mandatory injunction directing the directing the defendant no.1 (i) to demolish the latrine and the pillars marked as X-1, X-2, X-3 in the site plan, (ii) to demolish the iron stairs and tin shed measuring 20 feet x 11 feet near the point 'G to H' in the site plan, (iii) to remove the bitora and machine for cutting animal fodder from the suit land, (iv) to restore the old wall from 'D' to 'I' to its original condition, (v) to remove the new wall raised in the night of 19.07.1993 and also to remove the lintern, and to remove the second tin shed measuring approx. 20 feet x 11 feet erected in the last week Suit No. 26/08 Page 2/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
of December, 1999.
2. The case set out in the plaint is that Sh. Ganga Dass had three sons, namely, Har Narain (who died issueless), Gabdu Mal @ Bhagirath and Kishan Lal. Gabdu Mal had two sons, namely, Chandan Singh and Bansi Lal. Kishan Lal had three sons, namely, Pushkar Dutt, Brahm Dutt and Kishore Chand. The defendant no.1 is the son of Chandan Singh and, the plaintiff no.10 and the defendant no.1 are sons of his brother Sh. Raghbir Singh. The plaintiff no.11 and 12 are sons of Bansi Lal and the plaintiff no.1 to 9 are descendants of Kishan Lal.
3. According to the plaintiffs, the land measuring 1 bigha and 1 biswas comprised in Khasra No. 511 situated in Village Shahpur Jat, New Delhi as shown as A, B, C, D, E, F in the site plan was owned and possessed by the parties and their predecessor in interest and the co-sharers had by mutual arrangement constructed their residential houses over different portions of the said Khasra no. 511 and kept the suit land for common use of the parties for marriages, social gathering and other occasions. The parties to the suit are owners of their respective houses constructed over various portions of Khasra No. 511 but the suit land, the passage and gali are their joint properties and no co- sharer has exclusive right to use the suit land to the exclusion of other co-sharers.
4. It is stated that on 17.08.1984, the defendant no. 1 alleging himself as the owner and in exclusive possession of the suit land filed a suit no. 125/1984 titled "Jagat Singh v. Khubi Ram & Ors." against the plaintiff no.1 Sh. Shyam Lal/predecessor-in-interest of the plaintiff no. 2 to 5, the plaintiff no. 7 & 11 for a decree of injunction restraining them from dispossessing the defendant no. 1 forcibly from the suit land. In the said suit, the said plaintiffs contended in their written statement that the suit land was reserved for common use and the defendant no. 1 had no exclusive right to use the suit land to the exclusion of others co-sharers. The said suit was dismissed by the Court of Sh. D.S. Sidhu, Sub-Judge, Ist Class, Delhi vide judgment dated Suit No. 26/08 Page 3/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
16.09.1987 on the ground that the defendant no. 1 was not in exclusive possession of the suit land and he cannot deny the right of other co-sharers over the suit land. The defendant no. 1 had not filed any appeal against the said decision.
5. According to the plaintiffs, there is a wall of Shiv Mandir from the point D to G and there is no wall from the point G to H and H to I in the portion D G H I in the site plan. There is the wall of the defendant no. 1's house from the point D to I. The defendant no. 1 has two gates towards the passage on the northern side of his house. The case of the plaintiffs is that the defendant no. 1 made an opening in his wall D to I and had constructed a flush latrine near the point D in the portion of the suit land. The defendant no. 1 had not restored the suit land to its original condition despite promise to close the opening and remove the latrine.
6. It is further case of the plaintiffs that on 09/10.01.1992, the defendant no. 1 started making construction on the suit land. The defendant no.1 had raised three pillars over the suit land at mark X1, X2 and X3 in the site plan in order to construct a tin shed by placing tin sheets over the said pillars. The height of the said pillars is 6 feet and the pillars mark X2 and X3 are at a distance of 15 feet from the point D to I and the pillar Mark X1 is at a distance of 5 feet from the point I and despite their protests.
7. The case of the plaintiffs is that the suit land is the common property of the parties and it was reserved for common purpose and no co-sharer has the right to raise any construction thereupon and appropriate the suit land to his exclusive use to the detriment of other co-sharers. The defendant no. 1 had no right to raise any construction over the suit land. The plaintiff filed the suit on 13.01.1992 praying for a mandatory injunction for removal of the said pillars and latrine from the suit land and further, for a decree of injunction restraining the defendant no.1 from raising any construction over the suit land.
Suit No. 26/08 Page 4/16Khubi Ram & Ors. Vs. Jagat Singh & anr.
8. On 15-1-1992, an application was made on behalf of the plaintiffs praying for an interim injunction restraining the defendant no.1 from raising any constructions over the suit land. The interim injunction prayed for was granted and the defendant no.1 was ordered to desist from making further constructions.
9. Vide order dated 24.11.2001, the application of the plaintiffs under Order 6 Rule 17, CPC for amendment of the plaint for incorporating subsequent events was allowed.
10. According to the plaintiffs, on 11/12.09.1992, the defendant no. 1 had fixed iron stairs to access his room near the latrine and erected a tin shed measuring 20 feet x 11 feet with a wall on one side in a portion of the suit land after leaving a 3 feet space near the point G to H and placed a bitora over a portion of the suit land. It is stated that on 18.07.1993, the defendant no. 1 had demolished the old wall from the point D to I and encroached upon the suit land to the extent of 9 inches from the point D and raised a new wall. The defendant no.1 also placed a lintern over the said wall and thereby, reducing the suit land by 9 inches. The defendant no. 1 had started keeping buffaloes and using the suit land for commercial activities for the purpose of selling the milk. The defendant no.1 had removed the 2 ½ feet wide gate in the wall D to I and installed a 4 feet wide new gate in the middle of the said new wall. The defendant no. 1 had also raised 5 feet pillar at a distance of 44 feet from point D. It is stated that in the last week of December, 1999, the defendant no. 1 raised another tin shed measuring 20 feet x 11 feet in a portion of the suit land and installed an animal fodder cutting machine there.
11. In the written statement, the defendant no. 1 raised preliminary objection that he has been in exclusive possession over a portion measuring 55 sq. yds, which is shown as common land, for the last more than 50 years and using the said land for tethering his cattle's and buffaloes and storing fodder. The plaintiff had never used the suit land for any purpose at any point of time. He has been in exclusive Suit No. 26/08 Page 5/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
use and enjoyment of the said land. The suit for permanent and mandatory injunction is not maintainable as neither the plaintiffs nor the defendant no.2 are in possession of the suit land. The suit has not been valued properly and proper court has not been paid. It is stated that the plaintiffs are not in possession of the suit land and they ought to have paid court fees on market value of the land is Rs.2,00,000/-.
12. According to the defendant no.1, the plaintiffs have concealed that the plaintiff no. 1 is in possession of 22 square yards of land adjacent to the suit land which is reserved for common purposes for the co-owners. The suit is liable to be dismissed on the ground of delay, laches and acquiescence. The plaintiffs have alternate efficacious remedy of partition of the suit land. The suit for the relief of permanent and mandatory injunction is not maintainable against the true owner of the suit land.
13. On merits, the defendant no. 1 contended that the land comprised in Khasra no. 511 measuring 1 bigha and 1 biswa was allotted separately for use and enjoyment and thereafter, parties to the suit had constructed their respective portions. It is denied that the suit land was mutually agreed to be kept for common use on the occasion of marriage and other social functions etc. He challenged the correctness of the site plan filed by the plaintiff. It is stated that entire land of the khasra no.511 is not shown in the site plan and 67 square yards of land shown as B E F G in his site plan is not shown in the site plan of the plaintiffs. It is stated that the area marked J F H I in his site plan is in possession of plaintiff no. 1. It is stated that he is in exclusive possession of the land shown as A B C D in his plan for the last 50 years and he cannot be dispossessed from the suit land without due process of law. It is denied that the 60 square yards of land shown as D G H I in the site plan is still joint. It is stated that except the area which was left for common passage as shown in yellow colour in his site plan filed, the remaining area was mutually allotted under the family settlement for exclusive use and enjoyment.
Suit No. 26/08 Page 6/16Khubi Ram & Ors. Vs. Jagat Singh & anr.
14. According to the defendant no. 1, he has a tin shed on the portion of the said land for tethering cattle and storing fodder and Uppala and he has a gate opening towards the said land for the last 40 years. He stated that the flush latrine in ABCD was constructed many years back. The plaintiffs never objected to the opening of the gate and construction of the latrine. He stated that the said gate and latrine are in existence more than 20 years old and the tin sheds are in existence for last 30/40 years. The defendant no. 1 has prayed for dismissal of the suit.
15. The defendant no. 2 has not filed written statement.
16. In the replication, the plaintiffs controverted the averments made in the written statement of the defendant no.1 and re-affirmed the averments made in the plaint.
17. On the pleadings of the parties, the following issues were framed on 11.12.1996:
(1). Whether the suit is not maintainable as alleged in para no. 1 of the preliminary objection in the written statement?
OPD (2). Whether the suit is not properly valued for the purpose of court fee and jurisdiction?
OPD (3). Whether the plaintiff is entitled to a decree of permanent and mandatory injunction as prayed for? OPP (4). Relief.
18. In the evidence, plaintiff no. 1 appeared as PW-1. The plaintiff no. 1 was cross-examined and discharged on 04.11.1997.
19. The defendant no.1 was proceeded ex-parte on 12.09.2001.
20. In view of the amendment of the plaint on 24.11.2001, the Suit No. 26/08 Page 7/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
plaintiff no.1 (PW-1) was re-examined and discharged on 30.05.2002.
21. On the application of the defendant no.1 under Order 9 Rule 7 CPC, order dated 12.09.2001 was set-aside vide order dated 27.09.2003.
22. The defence of the defendant no.1 was struck off vide order dated 30.07.2005. Vide order dated, an application of the defendant no.1 for setting aside the order dated 30.07.2005 was dismissed.
23. I have heard arguments of Sh. Manmohan Gupta, Advocate for the plaintiffs and Sh. C.P. Wig, Advocate for the defendant no. 1 and carefully considered the evidence on record.
24. Issue wise findings are as under:
ISSUE NO.2:
25. Issue no.2 is taken for determination first as it is a legal issue. Onus to prove the issue no. 2 was upon the defendant no. 1. The defendant no. 1 in his written statement contended that the plaintiffs are not in possession of the suit land and the market value of the suit land is Rs.2,00,000/- and therefore, they should have valued and affixed the court fees on Rs.2,00,000/-.
26. This is a suit for permanent and mandatory injunction filed by the plaintiffs against the defendants in respect of common land. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. In law, possession of one co-owner is deemed possession of all the co-owners. Every co-sharer has a right to reasonable enjoyment of the joint property, in one of the usual modes provided; he does not interfere with a similar user by the other co-sharers. A perpetual injunction can be granted to restrain one of the several co-sharers from appropriating to himself land, in which his co-sharers have an interest and from building upon it, and if he has proceeded to build upon it, the Court can grant a mandatory injunction Suit No. 26/08 Page 8/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
under Sec. 39, directing that the building so far has proceeded as to be pulled down. In such cases, an injunction will be granted when the act complained of, amounts to waste of joint property or to an illegitimate use thereof, or to an ouster of the plaintiff from possession and enjoyment of the property. In other words, where a co-owner makes unauthorized use of the joint property, the other co-owner may claim injunction.
27. Therefore, the suit for permanent and mandatory injunction filed by the plaintiffs against the defendant no.1 in respect of joint property is maintainable. The plaintiff has valued the suit at Rs.130/- each for the relief of permanent and mandatory injunction and paid the fixed court fees of Rs. 13/- each. Accordingly, issue no. 2 is decided in favour of the plaintiffs and against the defendant no. 1.
ISSUE NO.1 and 3:
28. Ld. Counsel for the plaintiffs argued that the defendant no.1 has led no evidence in support of the issue no.1 regarding the maintainability of the suit. He argued that defendant no.1 had filed a civil suit alleging himself to be the owner and in exclusive possession of the suit land bearing suit no.125/84 titled as 'Jagat Singh v. Khubi & Ors.' for a decree of permanent injunction restraining the plaintiffs/their predecessor-in-interest from dispossessing him forcibly from the suit land. He argued that the said suit was dismissed by the Court of Sh. D. S. Sidhu, Sub Judge, Ist Class, Delhi vide judgment dated 16.09.1987 Ex.PW-1/4. He argued that in the said judgment, it was held that the defendant no.1 was not in exclusive possession of the suit land and he cannot deny right of other co-sharers including the plaintiffs herein. He argued that the defendant no.1 had not preferred any appeal against the said judgment and it attained finality. He argued that the defendant no.1 cannot be allowed to re-agitate the issue of exclusive ownership over the suit land which has been decided by a competent court of jurisdiction.
Suit No. 26/08 Page 9/16Khubi Ram & Ors. Vs. Jagat Singh & anr.
29. Ld. counsel for the plaintiffs further argued that the defendant no.1 on 16.01.1992 had filed another suit for partition and permanent injunction which was dismissed by the Court of Sh. L. S. Solanki, Civil Judge, Delhi vide judgment dated 03.11.2000 Ex.PW-1/6. He argued that in the said judgment, it was held that 60 square yards of land is lying vacant for common use and enjoyment in Khasra no.511, Village Shahpur Jat, New Delhi and the suit land is a joint property and no co- owner is having exclusive possession of the suit land. He argued that no construction was shown in the site plan Ex.P-1 filed by the defendant no.1 in the said suit. He argued that the plaintiff no.1 appeared as PW-1 to prove the issue no.3 and his testimony with regard to joint ownership of the suit land and construction raised by the defendant no.1 thereupon remained un-rebutted. He argued that the plaintiffs have proved the issue no.3 and filed the suit without any delay and therefore, they are entitled to relief of permanent and mandatory injunction as prayed for.
30. Ld. Counsel for the defendant no.1 argued that the defendant no. 1 has been in exclusive possession of the suit land for the last 50 years and he cannot be dispossessed therefrom without due process of law. He argued that the suit for mandatory and permanent injunction is not maintainable as the plaintiffs are not in possession of the suit land. He argued that the plaintiffs should have filed a suit for partition of the suit land. He argued that the plaintiffs have not availed the alternate remedy available to them and therefore, the present suit is barred under Sec. 41 of the Specific Relief Act. He argued that no injunction can be issued against true and lawful owner of the property. He argued that the suit no.125/84 was dismissed vide judgment dated 16.09.1987 on the ground of availability of alternate efficacious remedy of partition and not on the ground that the suit land was a joint property. He argued that the construction over the suit land is in existence for the last 30/40 years and therefore, the suit is barred by delay and acquiescence. He argued that the defendant no.1 has been Suit No. 26/08 Page 10/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
in exclusive use and enjoyment of the suit land and the plaintiffs should file a suit for partition instead of a suit for mandatory injunction.
31. Onus to prove the issue no.1 was upon the defendant no.1. The defendant no.1 has led no evidence that he has been in exclusive possession over a portion measuring 55 sq. yds. for more than 50 years and using the said land for tethering his cattle's and buffalo and storing fodder.
32. Onus to prove the issue no.3 was upon the plaintiffs. The plaintiff no. 1 appeared as PW1 in support of his case. He proved site plan of the suit land Ex. PW1/1, certified copy of the plaint Ex. PW1/2, written statement Ex. PW1/3 and judgment dated 16.09.1987 Ex. PW1/4 passed by the Court of Sh. D.S. Sidhu Ld. Sub Judge, Ist Class, Delhi in Suit No. 125/84 titled as 'Jagat Singh Vs. Khubi & ors', certified copy of the judgment and decree dated 03.11.2000 Ex. PW1/5-6 passed by the court of Sh. L.S. Solanki, Civil Judge in Suit No. 829/93 titled 'Jagat Singh Vs. Khubi Ram' and complaint dated 19.07.1993 to the police Ex. PW1/7.
33. It is the admitted case of the parties that the land measuring 1 bigha 1 biswas comprising in Khasra no. 511 situated in Village Shahpur Jat, New Delhi was owned and possessed by their predecessor-in-interest. It is further admitted case of the parties that the co-sharers by way of a mutual settlement constructed their houses over their respective portions of the land in the said Khasra 30 years ago.
34. PW-1 categorically deposed that the parties had agreed to keep 60 sq. yds. of land comprising in Khasra no. 511 for common use for the purposes of marriage or other ceremonies. He further deposed that no co-sharer had exclusive possession of the suit land. He proved the site plan of the suit land Ex.PW-1/1 wherein the defendant no.1's house is adjacent to the suit land and marked as X. He deposed that Suit No. 26/08 Page 11/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
the parties to the suit are in joint possession of the suit land. He proved in his testimony that the defendant no. 1 had constructed a latrine at the point D and a 2½ feet passage in the wall D to I. He proved that the defendant no. 1 had brought building material on 09/10.01.1992 for raising construction over the suit land and raised three pillars over the suit land as shown as Mark X1, X2 and X3 in the site plan despite protests. He deposed that the height of the said pillars is 6 feet. Pillar X2 and X3 are situated at a distance of 15 meters from the point D to I and Pillar X1 is situated at a distance of 5 meters from the point D. He deposed that the suit land is common property of all the co-sharers and reserved for common purposes.
35. PW-1 proved that that on 11/12.08.1992, the defendant no. 1 had fixed iron stairs to access his room near the latrine and constructed a tin shed with wall on one side over the suit land leaving space of 3 feet near point G to H despite interim order passed by this Court on 15.01.1992. He proved that on 18.07.1993, the defendant no. 1 had placed Bitora over the suit land and demolished the wall from the point D to I and encroached upon the suit land to the extent of 9 inches from point D and, raised a new wall and a lintern was put thereon and as such, the area of the suit land was decreased was 9 inches.
36. In his testimony, PW-1 proved that the defendant no. 1 is running a dairy over the suit land and replaced the gate of 2 ½ feet width with the 4 feet width gate. He proved that the a pillar had been constructed at a distance of 44 feet from the point D despite the interim orders passed by the court. PW-1 was cross-examined by the defendant no.1 but nothing material could be elicited from his cross-examination.
37. The plaintiff has been able to prove that the suit land measuring 60 square yards shown as DGHI in the site plan Ex.PW-1/1 is the common land. Moreover, the Court of Sh. D. S. Sidhu vide its judgment dated 16.09.1987 Ex.PW-1/4 in the suit no.125/84 filed by the defendant no.1 against the plaintiff no.1, the plaintiff no. 7, the plaintiff Suit No. 26/08 Page 12/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
no.11 and predecessor-in-interest of the plaintiff no.2 to 4 for a decree of permanent injunction restraining them from forcibly dispossessing him from the suit land held that 'the defendant no.1 was not in the exclusive possession of the suit land and he cannot claim any relief against the co-shares. The defendant no.1 had no exclusive and legal right over the suit land and he cannot deny the right of the other co- sharers including the plaintiffs over the said land.'
38. Contention that the said suit was dismissed on the ground of availability of efficacious remedy of partition cannot be accepted. The said judgment in unequivocal terms held that the suit land was jointly owned by the plaintiffs, the defendants and other co-sharers.
39. Further, the suit no. 829/93 on 16.01.1992 for a decree of partition and permanent injunction filed by the defendant no.1 against the plaintiffs in respect of the suit land was dismissed by the Court of Sh. L. S. Solanki vide judgment dated 03.11.2000 Ex.PW-1/6. Vide the said judgment, the court had held that the defendant no.1 was not in exclusive possession of the suit land and further, 60 square yards of land was lying vacant for the common use and enjoyment in Khasra no.511, Village Shahpur Jat, New Delhi. Therefore, the issue that the suit land is the joint property of the parties to the suit has already attained finality.
40. Contention that the suit is not maintainable as the plaintiffs have alternate efficacious remedy of partition cannot be accepted. The plaintiffs have not claimed exclusive right over the suit land. In Diwakar Prasad Dubey v. Prabhakar Prasad Dubey, AIR 1985 All. 133; it was held that suit for injunction is maintainable when there is any apprehension from the other side with regard to the joint property and any party cannot be compelled to necessarily bring a partition suit.
41. In Prabhoo v. Doodh Nath, AIR 1978 All. 178; It was held that one co-owner has not in law any right to appropriate land to himself Suit No. 26/08 Page 13/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
out of a joint land against the consent of his co-owners. High-handed action by one co-owner cannot be encouraged by courts of law. Unless some special equity is shown in favour of the defendant in a suit for demolition of constructions, which are in the process of being made by him without the consent of the co-owners a decree for demolition should not be refused especially when the co-owners have come to court at the earliest.
42. In 1969 Goa, Daman & Diu 90, a co-owner, in possession of the joint property, has no right to change the user of that property without the consent of the other co-owners. If he does so by starting digging operations with a view to erect a house on joint property and the aggrieved co-owner comes to the Court with due promptness for restraining him from raising a building, the Court can very legitimately decree prohibitory injunction. If in the meantime any structure has been raised a decree for mandatory injunction can also be granted.
43. The plaintiff has been able to prove that the suit land is the joint property of the plaintiffs and the defendants and other co-sharers and reserved for common use. The defendant no.1 had no exclusive right to use the suit land to the exclusion of other co-sharers. The plaintiffs and the defendants are in joint possession of the suit land. He cannot deny right of the plaintiffs over the suit land. In the site plan Ex.P1 filed by the defendant no.1 in his suit for partition and permanent injunction, no construction except the latrine was shown.
44. It is proved that the defendant no.1 had unauthorized-ly constructed latrine, installed stair-case, erected pillars X1, X2 and X3 and tin-sheds and, installed fodder cutting machine therein. The defendant no.1 encroached upon 9 inches of the suit land by demolishing the old wall at point D to I and constructed a new wall inside 9 inches of the suit land. The defendant no.1 had deprived the plaintiffs and other co-sharers from the use and enjoyment of the suit land. The defendant no.1 had no right to raise any construction over the suit land and appropriate the same to his exclusive use to the Suit No. 26/08 Page 14/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
exclusion of other co-sharers. The present suit was filed without any delay and moreover, the defendant no.1 had raised construction during the pendency of the suit despite interim injunction granted by the Court. The plaintiffs would suffer material injury if the relief of injunction is not granted which cannot be compensated in terms of money. The plaintiffs are entitled to get a decree for the removal of the constructions made by the defendant no.1 despite the protests by the plaintiffs. The plaintiffs are also entitled to a decree of permanent injunction restraining the defendant no.1 from raising any construction over the suit.
45. Accordingly, issue no. 1 and 3 are decided in favour of the plaintiffs and against the defendant no.1.
RELIEF:
46. In view of the finding on the issue no.1 and 3, the suit for permanent and mandatory injunction is decreed with costs as under:
a) A decree of permanent injunction is passed in favour of the plaintiffs and against the defendant no. 1 restraining the defendant no.
1 from making/raising any construction over any portion of the suit land measuring 60 sq. yds. situated in Khasra no.511, Village Shahpur Jat, New Delhi shown as D G H I in red in the site plan Ex.PW-1/1 and further, from encroaching upon the suit land.
b) A decree for mandatory injunction is passed in favour of the plaintiffs and against the defendant no. 1 and the defendant no.1 are directed (i) to demolish the latrine and the pillars marked X-1, X-2, X-3 in the site plan Ex.PW-1/1, (ii) to demolish the iron stairs and tin shed measuring 20 feet x 11 feet near the point 'G to H', (iii) to remove the bitora and machine for cutting animal fodder from the space marked D G H I, (iv) to restore the old wall from the point 'D' to 'I' to its original condition, (v) to remove the new wall raised in the night of 19.07.1993 Suit No. 26/08 Page 15/16 Khubi Ram & Ors. Vs. Jagat Singh & anr.
and also to remove the lintern, (vi) to remove the second tin shed measuring approximately 20 feet x 11 feet raised in the last week of December, 1999 and further, to remove the entire construction from the suit land and restore it to its original vacant condition.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court today the 30th September, 2010.
(SANJAY SHARMA) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 30.09.2010 Suit No. 26/08 Page 16/16