Delhi District Court
Sh. Murtaza vs Sh. Shoib on 4 May, 2011
IN THE COURT OF MS SWATI KATIYAR CIVIL JUDGE III TIS HAZARI COURTS
DELHI
SUIT NO. 573/08
DATE OF INSTITUTION : 24.07.2008
DATE ON WHICH RESERVED : 25.04.2011
DATE OF DISPOSAL : 04.05.2011
SH. MURTAZA
S/O SH. ANWARUL HAQ
R/O H. NO. 5657/12
GALI HANUMAN MANDIR
NABI KARIM, NEW DELHI ...... PLAINTIFF
VS
SH. SHOIB
R/O H. NO. 5657/12
GALI HANUMAN MANDIR
NABI KARIM, NEW DELHI
..... DEFENDANT
-:1:-
JUDGMENT
1. The present suit has been filed by the plaintiff seeking permanent and mandatory injunction against the defendant. Briefly stated the case of the plaintiff is that the plaintiff and the defendant are the residents of property bearing no. 5657/12, Gali Hanuman Mandir, Nabi Karim, New Delhi-110055.
2. It is submitted by the plaintiff that in front and adjoining the house of the plaintiff and the defendant, there is a common gali/street. The defendant had already got illegally constructed a Chajja across the gali by use of force despite the requests of the plaintiff and other inhabitants of the area. Now the defendant had again made up a mind to raise further illegal construction in form of a Chajja, towards the property of the plaintiff. It is further stated that the defendant and his family had also stored building material for raising such construction and had also brought a mason for the construction.
3. It is submitted that when the earlier construction was raised with the help of henchmen despite protest by the plaintiff, the natural light and air which was enjoyed by the plaintiff and his family was badly affected, but due to fear of his life at the hands of defendant, plaintiff could not do anything. Complaints were submitted to SHO, P.S. Nabi Karim on 15.07.2008 and to Commissioner of Police, ITO on 16.07.2008, however, no action was taken by the police. Thus, feeling aggrieved the plaintiff has filed the present suit seeking relief that defendant be restrained from raising any illegal chajja in the said gali. It is further prayed that the defendants be directed to demolish the construction already existing in the said gali.
4. Per Contra, defendant submits that the suit of the plaintiff is barred by principles of res judicata in as much as plaintiff had earlier filed a suit bearing -:2:- no. 297/2004 titled as "Sh. Murtaza v. Smt. Noor Jahan", which was dismissed on merits by Sh. Vinay Singhal (the then Ld. Civil Judge) vide judgment dated 07/03/2005. It is further submitted that the chajja in question is more than 40 years old and might have been constructed by any of the previous owners about 40 years ago. The defendant or his family member had not put a single brick on the said chajja. It is further stated that plaintiff wanted to purchase the portion in possession of the defendant but the same was purchased by the defendant, accordingly, plaintiff wants to mount pressure upon the defendant so that the defendant may sell it to the plaintiff and the plaintiff may raise construction upon the open space. Defendant denies that he had ever used any force upon the plaintiff or had stored building material in his premises. On these counts, it is prayed that the suit merits outright dismissal.
5. Replication was filed reiterating the plaint and denying the contents of the written statement. After completion of pleadings, following issues were framed on 21.10.2008, viz.:
i) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
ii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP
iii) Relief.
6. In evidence, plaintiff entered into witness box as PW1 and tendered documents Ex. PW 1/1 to Ex. PW1/11. Ex. Pw1/1 is the site plan, Ex. PW1/2 to Ex. PW1/8 are the photocopies of the property documents and proof of residence of plaintiff, Ex. PW1/9 to Ex. PW1/10 are the police complaint and the postal proof is Ex. PW1/11. Defendant was examined as DW1 and the certified copy of the judgment passed in the suit bearing no. 297/2004 was tendered as Ex. DW1/1.
-:3:-7. Final arguments were advanced at length by Sh. F. C. Giri, Ld. Counsel for the plaintiff and Sh. M. A. Khan, Ld. Counsel for the defendant.
8. After considering the submissions and perusing the record carefully, my issuewise finding on the issues is as follows:-
9. ISSUE NO. 1 AND 2 The onus of proving these issues was upon the plaintiff. Thus, it would be pertinent to refer to the deposition of the witnesses.
PW1 in his cross examination submits that the defendant has been residing in the property bearing no. 5657/12, Gali Hanuman Mandir, Nabi Karim, New Delhi-110055 for last about 7/8 years. PW1 admits that the defendant had purchased the constructed house and defendant had closed the open space shown in red in the site plan Ex. PW1/1 but the witness is unable to recollect the date, month and year when the said space was closed or covered. PW1 states that his house is three storeyed apart from ground floor.
PW1 further submits that he had lodged a police complaint but he does not remember the date, month and year of lodging the same. PW1 further submits that he does not remember the date, month and year when the Chajja was constructed by the defendant or the defendant threatened him. PW1 also expressed inability to tell about the person who were with the defendant at the time of construction of the said Chajja. PW1 states that he had not got photographed the building material used in the construction of the said chajja.
It is further submitted that "I have no problem from chajja which is shown in green colour in the site plan. It is correct that the said chajja shown in green -:4:- colour is constructed upto ground floor. It is hardly 5/6 ft. high from the ground...."
Further, PW1 submits that no action was taken by police authority on his complaint. Through volunteering, PW1 again stated that the police took him and the defendant to police station. PW1 admits that he had filed a suit for permanent and mandatory injunction against Smt. Noorjahan wife of the defendant on the same fact.
DW1 in his deposition states that he had placed a wooden plan at the chajja of his house but denies that due to the wooden plank, the light of the plaintiff is obstructed. DW1 states that the said chajja is already constructed over the gali. DW1 further submits, "the wooden plank is placed on the chajja to cover the open space in the gali. Vol. that place where wooden plank is placed is my open place and the plaintiff had nothing to do, he has already covered the gali in front of his house. I do not want to cover the said open space where the wooden plank is placed by construction of permanent structure......it is wrong to suggest that plaintiff many time asked me to removed that wooden plank. It is wrong to suggest that my neighbor Manohar Lal and Ram Avtar are annoyed me due to the alleged covering of gali by allegedly placing of wooden plank. It is wrong to suggest that I have placed the said wooden plank illegally and unauthorizedly or that I have no right to place the same."
Thus, from the testimony of DW1, it can be seen that the line of questioning adopted by Ld. Counsel for plaintiff focused on the wooden plank placed by the defendant in his open space rather than the chajja. There is no suggestion that the chajja has been illegally or unauthorizedly constructed. Thus, the case of the plaintiff diverted from the contentions raised in the plaint. Rather than the chajja, now it was the wooden plank which became the bone of contention.
-:5:-Further, PW1 in his cross examination had admitted that the said chajja is only 5/6 ft. in height and the same is not causing any problem to him, which is again contradictory to his case which was entirely build up on the fact that the said chajja was blocking the light and air of the plaintiff. A chajja only uptil ground floor and 5/6 ft. height cannot by any stretch of imagination block the light and air of the plaintiff. Moreso, in view of the deposition of PW1 to the effect that his house is three storeyed apart from ground floor.
Further, PW1 has also failed to prove that defendant had raised any construction in the property since as per plaintiff's own deposition, the defendant had purchased the constructed house and no further proof have been placed on record to show that the defendant had stored building material in his property. There are no photographs on record to show that any construction was raised or that any further construction is being raised by the defendant in the property in question.
Moreover, Ex. DW1/1,which is the judgment delivered in the earlier suit bearing no. 297/2004 filed by the plaintiff against the wife of the defendant shows that the earlier suit was also filed on the same grounds and cause of action. However, the suit was dismissed on merits due to failure of plaintiff to lead any evidence to support his claim. In the present suit plaintiff has tried to create a fresh cause of action of 15.07.2008, however, there is no specific averment with regard to the same and the it finds mention only with respect to filing of the police complaint. Thus, the suit of the plaintiff is hit by res judicata as well.
So far as the police complaints are concerned, they were sent to the police department under posting certificate ie. Ex. PW1/11. In 2006(1) Apex Court Judgments 236 (SC), it has been held by Hon'ble Supreme Court that certificate of posting is not a reliable evidence since no record of it is maintained by post -:6:- office and it can be procured with the connivance of any employee of the post office. Thus, in the present case as well it cannot be said that any actual complaint was ever made to the police on which action was not taken.
Thus, in view of the observations made above, the plaintiff has failed to establish the issues in his favour. The issues are accordingly decided against the plaintiff.
ISSUE NO. 3In view of the observations made under preceding issues, in my considered opinion, plaintiff has failed to establish his case against the defendant. The suit of the plaintiff is accordingly dismissed with costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the Open Court Today i.e. 04.05.2011. (Swati Katiyar) CJ (West)III/Delhi 04.05.2011 -:7:- -:8:-