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Delhi District Court

Mr. Ranjan Trivedi vs Mr. Pramod Jain on 30 September, 2019

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IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE­
         01 (SOUTH) SAKET COURT, NEW DELHI


Civil Suit No:­           47949/14
CNR No. :­                DLST03­001158­2010



             Date of Institution:          18.08.2009
             Date of Decision:             30.09.2019



Mr. Ranjan Trivedi
A­10, Upper Ground Floor, JE­5
Khirki Extension, Main Road
Opposite Tikona Park
Malviya Nagar, New Delhi­17                                      ...........Plaintiff

                                    Versus
1. Mr. Pramod Jain
A­1, Upper Ground Floor, JE­5
Khirki Extension, Main Road
Opposite Tikona Park
Malviya Nagar, New Delhi­17

2. Ms. Shakuntala
A­1, Upper Ground Floor, JE­5
Khirki Extension, Main Road
Opposite Tikona Park
Malviya Nagar, New Delhi­17                                    .........Defendants



Civil Suit No:­47949/14

                                                      (Vivek Kumar Agarwal)
                                               CJ­01/(South) Saket Court/New Delhi
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     AMENDED SUIT FOR DECLARATION, INJUNCTION AND
                       DAMAGES

Present:­ None for plaintiff.
             None for D1 & D2.


JUDGMENT:

­

1. Before proceedings ahead, it is pertinent to mention that previously suit was filed against four defendants, however, suit was withdrawn by the plaintiff against defendant no. 2 & 3 vide statement dated 25.01.18 and amended plaint along with amended memo of parties was taken on record. No amended WS was filed on behalf of the contesting defendant no. 1 & 4 (subsequently referred as 'defendant no. 1 & 2') and the previous WS has to be taken into consideration.

2. As per the amended plaint, the present suit has been filed seeking declaration that the portion of property of plaintiff includes the wall marked as 'A' in the site plan filed by the plaintiff and that plaintiff has right to make alterations in the said portion and again seeking declaration that plaintiff has easementary right in the shaft measuring approximately 7.5 feet x 3 feet 10 inch available between the adjacent flat of plaintiff and of defendant no. 1 and to allow the plaintiff to replace the window on the wall measuring 7 feet x 2 feet with a bigger window measuring 7 feet x 5.5 feet. Further, permanent injunction has been sought restraining defendant no. 1 for running any commercial office from his flat and from installing the batteries between the shaft available between flat no. 1A, JE­5, Khirki Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 3 Extension, Malviya Nagar, New Delhi and Flat no. A­10, Upper Ground Floor in the same building (hereinafter called as 'Suit Property'). Lastly, damages of Rs. 2 lacs have been sought against defendant no. 1 & 2. PLAINTIFF'S VERSION :­

3. Succinctly, the case of plaintiff, as relevant for adjudication of the present suit is that he is the resident of Flat no. A­10, Upper Ground Floor in the suit property in the building developed by Rajender Kumar Bhola and Shashi Bhardwaj and that he had purchased the said flat after execution of GPA dated 09.07.04 executed by Shashi Bhardwaj. It is stated that said GPA gave authority to the plaintiff to make any addition/ alteration in the portion of his property and vacant possession of the said flat was handed over to the plaintiff in terms of agreement to sell dated 09.07.04 along with some other documents, which were got registered. That plaintiff wanted to alter one of its internal wall marked as A in red color in the site plan, which falls within the super built­up area of 85 sq. yards and on which a small window measuring 7 feet x 2 feet is provided, so as to receive better sunlight being his easementary right and wanted to replace a bigger window measuring 7 feet x 5.5 feet instead of said small window. That plaintiff also took the permission of the defendant no. 1, who is his neighbourer on 16.05.09 in this regard. It is stated that the flat of defendant no. 1 and of the plaintiff is well demarcated as there is a small shaft between the two flats and that the flat no. A­1 in the suit property is owned by defendant no. 2. It is further stated that on 17.05.09, the plaintiff brought down the internal wall to erect a bigger window, however, same Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 4 was objected on behalf of defendant no. 1 through his relatives and friends and police was called by one Rajender Kumar Bhola and the work of the plaintiff was stopped. That thereafter on 17.05.09, the plaintiff came to know that defendant no. 1 had installed series of inverter batteries in the shaft, which is dangerous to the plaintiff and his family. That complaint was given to police and to MCD but no action was initiated and hence, the present suit.

VERSION OF DEFENDANT NO. 1:­

4. As per WS, preliminary objections have been taken inter alia of suit not being maintainable and plaintiff has no cause of action and have been concealed the material facts from the court. It is submitted that defendant no. 1 is not the owner of property no. A­1 and that no commercial activity is going on in the said premises. That plaintiff is having a fixed window measuring 7 feet x 2 feet on the wall Mark A and he has no right to replace the same with the bigger window, as same would be hindrance in the peaceful use of the shaft belonging to sister of the defendant. That plaintiff has no right or interest in the said shaft and he is trying to grab the same. In reply on merits, all the averments of plaint are denied with a request to dismissed the suit.

WS OF DEFENDANT NO. 2 (previously as defendant no. 4):­

5. In the WS to original plaint filed on behalf of defendant no. 2, preliminary objections have been taken inter alia of suit not being maintainable and without cause of action in favour of plaintiff. It is denied that plaintiff has any right to erect and replace any bigger window. In reply Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 5 on merits, all the allegations are denied with the request to dismiss the suit. ISSUES:­

6. From the pleadings of both the parties, following issues were framed vide order dt. 04.06.2018:­ Issue no.1 Whether the plaintiff is entitled to declaration as prayed in prayer clause (a & b)? OPP Issue no.2 Whether the plaintiff is entitled to permission and direction as sought in prayer clause (c & g)? OPP Issue no.3 Whether the plaintiff is entitled to injunction as prayed in prayer clause (d)? OPP Issue no.4 Whether the present suit is not maintainable because plaintiff has approached the court with unclean hands and has suppressed material facts from the court? OPD Issue No.5 Relief.

EVIDENCE:­

7. To prove his case, the plaintiff examined himself as PW1 by tendering his affidavit Ex. PW1/A, who also tendered some documents i.e. Mark A (colly), Ex. PW1/A1, Mark B & Mark C including documents dated 09.07.2004, site map of the flat of the plaintiff, copy of complaint dated 17.05.09 and copy of complaint dated 26.05.09. He was duly cross­ examined by counsel for defendant no. 1 & 2. Plaintiff further examined Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 6 Sh. Ashok Sharma who tendered his affidavit of evidence as Ex. PW2/A. He was duly cross­examined by counsel for defendant no. 1 & 2. Thereafter, evidence on behalf of plaintiff was closed by the plaintiff vide statement dt. 17.08.19 and matter was adjourned for DE.

8. On the other hand, defendant no. 1 himself stepped into the witness box and tendered his evidence affidavit as Ex. DW1/1 along with document including Mark DW1/A (colly) i.e. original photographs. He was duly cross­examined by counsel for plaintiff. Again, during his cross­ examination certain other documents were exhibited as Mark X to Mark Z. Thereafter, evidence on behalf of defendant no. 1 was closed by him vide statement dt. 17.09.2019.

FINDINGS:­

9. Arguments advanced by counsel for plaintiff as well as counsel for defendants have been heard. Again, file has been carefully and minutely perused and my issue­wise findings with reasons thereof are as under :­ ISSUE No. 1 & 2:­

10. Both these issues are interconnected are taken up together for consideration. The onus to prove these issues were upon the plaintiff. It is argued by Ld. Counsel for plaintiff that as per the document dated 09.07.04, which have not been denied on behalf of defendants, plaintiff has every right to alter his own property. Again, attention is drawn to the cross­examination of D1/DW1 dated 17.09.19, wherein he has admitted that he was having no document to establish the ownership of the shaft and Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 7 therefore, the defendants cannot object the erection of bigger window as they have no right. It is further submitted that rather defendant no. 1 himself had granted oral permission for replacement of bigger window by the plaintiff and same has been proved by testimony of PW2, however, despite that, defendant no. 1 had objected the same, as deposed in his cross­examination. It is submitted that it is not in dispute that a shaft exists between the flat of plaintiff and of the sister of defendant and again that it is the outside of the premises of Flat no. A­1 and that it is a common shaft and therefore, the defendants have no right to object for replacement of bigger window by the plaintiff in his internal wall of his flat.

11. On the other hand, it is argued by Ld. Counsel for defendants that in his cross­examination dated 15.11.18, PW1 has admitted that in the documents Mark A, no right of alteration was given to the plaintiff and again as window in question is annexed to a common shaft, the plaintiff has no right to replace the existing window. It is further argued that the plaintiff has also not impleaded the vendor of the suit property and also was not examined and again no document has been filed by the plaintiff, if any permission was obtained from the concerned authority for replacement of a bigger window. Accordingly, it is submitted that plaintiff has failed to prove his case.

12. Heard. It is to observe that admittedly, the wall marked as 'A' in the site plan Ex. PW1/A1, which shows the description of the flat of plaintiff, is the internal wall of the flat of the plaintiff and being the owner of the same, he certainly has inherent right to alter the construction of the Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 8 same, however, certainly to the condition that said alteration is not going to affect any other person and is also as per building bye­laws. Moreover, the defendant no. 1 in his cross­examination has clearly stated that he had not objected the bringing up of the bigger window but his son had objected to the same. Again, defendants had not led any evidence to establish what nuisance was going to be caused to the defendants, if plaintiff is allowed to replace the bigger window.

13. Again, undoubtedly a shaft existing between the two flats is meant for access to light and movement of the air and therefore, certainly the plaintiff as well as the defendants, being the owner/ occupier of the adjacent flat have easementary right in this regard from the shaft in question.

14. However, regarding the relief of damages sought by the plaintiff, it is to observe that plaintiff has not led any evidence that what loss was caused to the plaintiff by delay in replacement of bigger window. Nothing has been deposed in this regard even by PW2. Again, plaintiff has not led any evidence to establish how he had claimed the said damages for Rs. 2 lacs.

15. In view of aforesaid discussion, issue no. 1 & 2 are decided in favour of plaintiff to the effect that plaintiff has right to make alteration in his own flat and to replace the window in question by a bigger window, however, subject to the condition that it will not cause any damage to the property of defendants and that the alteration shall be as per the building bye­laws only, however, plaintiff is not entitled for relief of damages.

Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 9 ISSUE NO. 3:­

16. Now, regarding the relief of injunction, sought against defendant no. 1, it is to observe that undoubtedly a commercial office cannot be run from the residential property and again certainly shaft is not meant for installment of batteries. Moreover, defendant no. 1 in his cross­ examination has duly admitted that the batteries installed by him had caught fire and were got removed. Accordingly, plaintiff is also entitled for injunction restraining the defendant no. 1 & 2 from running any commercial office from their flat and to install the batteries in the shaft in question. Issue no. 3 is disposed off accordingly. ISSUE No. 4 :­

17. The onus to prove this was upon defendants, however, this issue was not pressed by counsel for defendants during arguments at Bar. Accordingly, issue no. 4 is disposed off as not being pressed. ISSUE NO. 5 RELIEF

18. In view of findings of all the above issues, suit of plaintiff is hereby decreed to the effect that it is declared that plaintiff has right to make alteration in his own flat bearing no. A­10 and to replace the window in question by a bigger window, however, subject to the condition that it will not cause any damage to the property of defendants and that the alteration shall be as per the building bye­laws only, however, plaintiff is not entitled for relief of damages. Again, defendants are permanently Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 10 restrained from running any commercial office from their flat and to install the batteries in the shaft in question. No other relief is granted. No order as to costs.

19. Decree sheet be prepared accordingly and file be consigned to Record Room after due compliance.

Pronounced in open court:

Dated: 30.09.2019 (Vivek Kumar Agarwal) CJ­01, Saket Courts, South Delhi Note :­ This Judgment contains ten pages and all the pages have been checked and signed by me.

(Vivek Kumar Agarwal) CJ­01, Saket Courts, South Delhi Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi 11 Civil Suit No:­ 47949/14 Mr. Ranjan Trivedi. v. Mr. Pramod Jain & Anr.

30.09.2019

Present:     None for plaintiff.
             None for defendants.

Vide my separate judgment passed today, suit of the plaintiff has been partly decreed. No order as to costs.

Decree sheet be prepared accordingly.

File be consigned to record room after due compliance.

(Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi Civil Suit No:­47949/14 (Vivek Kumar Agarwal) CJ­01/(South) Saket Court/New Delhi