Delhi District Court
Smt. Chander Kanta Bansal vs . Sh. Rajinder Singh Anand. on 31 March, 2017
RCA No. 45/16/08 (661088/2016)
Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
IN THE COURT OF SHRI SHAILENDER MALIK:
ADDITIONAL DISTRICT JUDGE03:CENTRAL: DELHI
RCA No. 45/16
New RCA No. 661088/2016
In the matter of :
1. Smt. Chander Kanta Bansal
W/o Sh. I.C. Gupta,
R/o 13/20, Punjabi Bagh Extension,
New Delhi. .... Appellant/ Defendant
Versus
1. Sh. Rajinder Singh Anand,
S/o Sh. Basant Singh Anand,
R/o 13/20, Punjab Bagh Extension,
New Delhi. ..... Respondent/ Plaintiff
Date of institution of suit : 18.11.2008
Date of Judgment : 31.03.2017
JUDGMENT
1. This is an appeal against the judgment and decree dated 12.09.2008 passed by Ld. Civil Judge in Suit No. RCA No.45/16/08 Page No. 1 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
410/16, whereby the suit of the plaintiff/respondent herein was decreed.
2. Facts leading to file the present appeal are that the respondent herein had filed a suit for relief of mandatory injunction. Both plaintiff and defendant are member of Adarsh Bhavan Housing Building Cooperative Society, Delhi. By virtue of their membership they were allotted a plot bearing No. 13/20, Punjabi Bagh Extension, New Delhi under a perpetual Sub Lease Deed dated 12.05.1983. Each of the parties were owner of half of the above said plot which was measuring 426 sq. yards. Both the parties jointly applied for sanction of the building plan on the plot. The front portion of the plot was constructed by the defendant and the back portion was constructed by the plaintiff as decided by mutual oral agreement. The portion of the plaintiff is facing 15 feet wide service lane while portion of the defendant is facing 30 feet wide main road. As per the sanction plan, both the parties were required to leave 10 feet wide drive way (point Y to Z in Ex.PW5/2) towards plot No. 13/19. This area was duly left. In June, RCA No.45/16/08 Page No. 2 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
1985 defendant tried to make obstruction at point X as shown in the site plan (Ex.PW5/2) and thereby blocking the drive way which the plaintiff was using for entrance and exit to the house. It is alleged that now whenever the plaintiff intends to use the said drive way the defendant threatens him with dire consequences. It is further alleged that the action of the defendant is illegal and uncalled for. It is alleged that 15 feet wide service lane towards the house of the plaintiff is mot of the time muddy and dingy. Water up to the level of one feet stands in front of the back gate during rainy season. It is requested that the defendant be directed to remove the obstruction placed by her at point X (as shown in site plan Ex.PW5/2) thereby blocking the drive way, by way of mandatory injunction.
3. Defendant filed her W.S. and has taken certain preliminary objections. It is averred that the present suit is not maintainable under the Specific Relief Act and the plaintiff has not come before this court with clean hands. It is averred that an oral partition had taken place between the parties by mutual consent and front portion of the plot RCA No.45/16/08 Page No. 3 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
fell into the share of the defendant and rear portion was given to the plaintiff. There was also a partition wall existing at point X as shown in the site plan (Ex.PW5/2) which was demolished by the plaintiff in June 1985. This matter was reported to the police. It is alleged that the defendant was in exclusive use of her portion and the plaintiff has never used the alleged driveway front point Y to X and hence there is no right to passage vested in the plaintiff. It is alleged that both the portions are now independent units and none of the parties have any right to interfere in the portion of another party. It is further averred that defendant had constructed her portion before plaintiff. It is alleged that a 10 feet wide space has been left because of the MCD by laws and not because plaintiff and defendant intended to use it as a drive way. It is denied that the defendant ever tried to create any obstruction at point X on the drive way. It is alleged that there was already 5 feet partition wall existing at point X. All the other allegations of the plaint have been completely denied in specific. It is denied that 10 feet wide set back is a public street as alleged by the plaintiff. It is denied that RCA No.45/16/08 Page No. 4 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
the plaintiff has any right to claim passage over the 10 feet side set back. At the end, it is prayed that the suit of the plaintiff be dismissed with special costs.
4. Trial Court reveals that the defendant filed the written statement. Subsequently, defendant sought to amend the written statement to plead regarding the Partition Deed executed between the parties. Such amendment though was allowed by Ld. Civil Judge. That order of Ld. Civil Judge, however, was set aside by the Hon'ble High Court on an appeal filed by the plaintiff. SLP against the order of Hon'ble High Court was also dismissed. As such, amended written statement filed on trial court record cannot be read.
5. Replication to the written statement of defendant was filed by the plaintiff. Plaintiff in his replication has denied the allegations as leveled in the W.S. and has reiterated the contents of the plaint. Plaintiff has completely denied that there was ever any partition wall existing at point X on the drive way and he has broken RCA No.45/16/08 Page No. 5 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
that wall. It is reiterated that the entry from the main gate is thorough passage and a drive way and the plaintiff has a right to pass through this area. It is further averred that the plaintiff has no intention to interfere in the possession/ownership rights of the plaintiffs, he only claims right to passage on the 10 feet wide set back which is being used by the parties as a drive way.
6. Trial court record reveals that on the basis of pleadings firstly issues were framed on 25.08.87 as (I) Whether the plaintiff has a right to pass through the passage as claimed in the suit?
(II) Relief.
7. During the proceedings on an application moved under order 14 Rule 5 CPC by plaintiff, certain additional issues were framed by ld. Civil Judge on 24.03.93 which read as under:
(a) Whether there was any partition of the building as alleged in para 2 of preliminary objection?
(b) Whether the defendant or anybody at her instance has the right to obstruct the passage Y to X or to lock the main entry gate at point X of 13/20, RCA No.45/16/08 Page No. 6 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
Punjabi Bagh Extn. ?
(c) Whether the plaintiff is entitled for relief of mandatory injunction claimed in the plaint?
(d) Relief.
8. Ld. Trial court taking note of the fact that onus was not fixed on either of the issues and some of the issues were factually interconnected, therefore, ld. Civil judge in the impugned judgment rearranged all the issues as following :
1. Whether there was any partition of the building, as alleged in para 2 of them preliminary objection?
2. Whether the defendant or anybody at her instance Y to X or to lock the main entry gate the point X of 13/20, Punjabi Bagh Extension ?
3. Whether the plaintiff is entitled to the relief of the mandatory injunction claimed in the plaint?
4. Relief.
9. During the trial, on behalf of plaintiff, seven witnesses were examined. PW1 is Sh. B. N. Srivastav, Office Superintendent, Cooperative Society Cell, Vikas RCA No.45/16/08 Page No. 7 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
Sadan, DDA, PW2 is Sh. K. P. Sharma, JE (Bld.), MCD. PW3 is H.C. Kalyan Singh. PW4 is M.L. Nandwani, Architect Town Planning Department, MCD. PW5 is Rajender Singh, plaintiff/ respondent herein. PW6 is Devender Singh and PW7 is Ram Prakash Sethi. On behalf of defendant five witnesses were examined. DW1 is Sh. K. L. Bajaj who was president of Aadarsh Bhawan Group Housing Society. DW2 is D.K.Singhal, Secy. Of said Society, DW3 defendant / appellant Chandra Kanta and DW4 is Mukhwant Singh from MCD and DW5 is Jagdish Lal UDC, MCD.
10. On the basis of facts and evidence, Trial Court in the impugned judgment decided Issue No. 1 & Issue No. 4 in favour of plaintiff / respondent holding that from the testimony of plaintiff and PW6 & 7, it is established that entire passage from the front portion to back portion of the property in question was being used by the parties. Trial Court further concluded that plaintiff has been able to prove that there was never any partition wall existing at Point X of site plan Ex.PW5/2. Trial Court also relied upon RCA No.45/16/08 Page No. 8 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
the sanctioned plan approved by the MCD, of property in question proved in the evidence of PW2 K.P.Sharma and concluded that side passage of 10fts. vide towards the plot no. 13/19 was left open and was meant for entry of houses by onus. Trial court, while deciding the issue no. 2, further concluded that defendant had failed to establish that there was ever any partition wall at point X, as claimed by defendant. As such, such issue was decided against the defendant. Issue no. 3 was decided in favour of plaintiff. In view of such findings trial court decreed the suit in favour of plaintiff/ respondent by giving directions to appellant / defendant to remove all obstructions at point X as shown in the site plan Ex.PW5/2 of suit property no. 13/20 Punjabi Bagh Extn. And also not to put any lock at the main gate of the property.
11. Above said findings of trial court have been impugned in the present appeal on the ground that trial court has not correctly appreciated the facts and evidence , more particularly evidence of PW5/ Plaintiff, when he testified in cross examination that he is in possession of RCA No.45/16/08 Page No. 9 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
213 Sq. Yds. of plot no. 13/20 Punjabi Bagh Extn. and he also admitted that construction in the plot in question was raised by appellant prior to plaintiff. It is stated that trial court failed to properly decide the question of partition as raised in the pleadings. It is stated that trial court has committed grave error in holding that appellant / defendant failed to prove partition, when plaintiff himself has admitted that there has been a mutual partition between the parties. If parties were having their respective properties, there could not have been any claim of common passage. It is stated that evidence on the trial court record was not correctly appreciated and therefore, the impugned judgment suffers on incorrect appreciation of facts and evidence.
12. I have heard counsels for the parties and has gone through the record carefully. As noted above, trial court in impugned judgment, while deciding issue no. 1 &4, has concluded that plaintiff being successful in establishing the common passage from front portion to back portion of the entire plot no. 13/20, which is towards the property no.
RCA No.45/16/08 Page No. 10RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
13/19 and shown as Z to Y in the Site Plan Ex.PW5/2. It is not disputed fact that both plaintiff and defendant were allotted the entire plot no. 13/20 which was total measuring 426 Sq. Yds. Parties were allotted this plot on account of being member of Aadarsh Bhawan Housing Building Society. It is also not disputed that both plaintiff and defendant have respective halfshare in the above plot. It is also not disputed that front portion of the plot facing towards 30 ft. main road was with appellant / defendant and rear portion was with plaintiff / respondent. It is also not disputed that parties have raised construction of their respective houses as per the sanctioned plan duly approved from the MCD.
13. In this context, if we go through the testimony of PW1, B.N. Srivastava who brought the relevant record from the Aadarsh Bhawan Cooperative Society, this witness has specifically testified that there cannot be any division of plots as per the terms of sub lease. In other words PW1 has testified that above said plot was allotted jointly to plaintiff and defendant, and there being no legal RCA No.45/16/08 Page No. 11 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
permissibility for separate partition of the property among the parties. As such reading the evidence of PW1 along with PW2 who proved the sanctioned plan approved by the MCD, it is established that there was a common passage in the property in question towards the side of property no. 13/19. Evidence of plaintiff / respondent, PW 5 Rajender Singh has been also specific and consistent in this regard.
14. PW5 in his examination in chief has testified that plot in question was allotted jointly to him as well as to defendant. PW5 further testified that joint building plan was sanctioned by the MCD. PW5 says that portion / passage from point Y to Z, is drive way, according to sanctioned plan. PW5 further says that right from the day of construction of property of both the parties on the plot, drive way between point Y to Z was being used by both the parties. Such deposition of PW5, gets corroboration from the evidence of PW1 and PW2 as well as independent witnesses PW6 and PW7 who are neighbors of plaintiff and of defendants. Reading the testimony of these RCA No.45/16/08 Page No. 12 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
witnesses in totality makes it clear that there was a passage from portion Y to Z which is being used as drive way by both the parties. There has never been partition to such passage it was neither permissible under the sub lease, nor feasible as such drive way was being used by the parties for entrance into their respective houses. As such, I find no infirmity in the assessment of evidence by trial court.
15. Ld. Counsel for the Appellant referred to certain portions of cross examination of PW5 and submitted that there has been certain admissions of plaintiff / respondent herein regarding partition of properties including the drive way. I find that such argument is not sustainable. Evidence of any witness is to be appreciated by reading the evidence in totality and not in extract. If we consider the evidence of PW5 along with other witnesses, it would be very much clear that at no point of time plaintiff has admitted any partition or partition wall at Point X. Neither plaintiff is making any exclusive claim in respect of drive way or passage of 10 fts wide. Such was the observations of RCA No.45/16/08 Page No. 13 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
even trial court in para 20 of the impugned judgment. Reading the evidence in totality, I find that there are no improprietory in the findings of the trial court. Thus, appeal stands dismissed.
Announced in the open court on Today : 31.03.2017 (SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI RCA No.45/16/08 Page No. 14 RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
RCA No. 45/16/08 (661088/2016) Smt. Chander Kanta Bansal vs. Sh. Rajinder Singh Anand.
31.03.2017 Present : None.
Vide separate judgment of even date dictated and announced in the open court, appeal filed by the appellant/ defendant is dismissed. Trial court record be sent back to the concerned court with the copy of judgment.
Appeal file be consigned to record room after due compliance.
(SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI/31.03.2017 RCA No.45/16/08 Page No. 15