Delhi District Court
Smt. Usha Devi vs . Djb & Ors. on 29 April, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 613543/16
Smt. Usha Devi,
W/o late Sh. Ishwar Singh Saini,
R/o House/plot no. C-93, Laxmi Park,
Nangloi, New Delhi. .....Plaintif
Versus
1. Delhi Jal Board,
Through Authorized Officer,
Varunalaya Bhawan, Faiz Road,
Karol Bagh, New Delhi-110005.
2. The SHO, P.S. Nihal Vihar,
Nangloi, Delhi
3. North Delhi Municipal Corporation
Dr. SPM Civic Centre,
JNU Marg, Minto Road,
New Delhi-110002.
Through its Commissioner
4. Sh. Rajesh @ Raju Saini,
S/o Sh. Kawal Singh,
Presently at : H. No. 661, Saini Mohalla,
Nangloi, Delhi-110041.
5. Sh. Anil,
S/o Sh. Mohan Lal,
R/o C-93, Laxmi Park,
Nangloi, Delhi. ...... Defendants
Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.1/10
Date of filing of the suit : 01.12.2016
Date of reserving judgment : 18.04.2019
Date of pronouncement : 29.04.2019
JUDGEMENT
1. This is a suit for declaration, permanent and mandatory injunction.
2. The brief facts of the case as per the plaintif are that property bearing no. C-93, Laxmi Park, Nangloi, New Delhi is situated in Khasra no. 62/20/02 & 61/16 village Nangli Jat, Delhi area measuring 76.67 sq. yds. Out of 400 sq. yds was purchased by the husband of the plaintif from his mother on 10.01.1996 for a sum of Rs. 1.80 lac. That the plaintif has started construction in February, 2016 upon her said portion of 76 sq. yds and remaining was open space, upon which the plaintif has started construction. That the plaintif was going to construct the stairs but the defendants create hindrance and not allowed the plaintif to construct the same. That the plaintif is unable to use the first floor of the suit property without the construction of the the stairs. That the said property is duly constructed by the plaintif and defendant no. 4 & 5 in their respective portions and are in respective possession. That the defendant no. 4 & 5 have purchased the share from the husband of the plaintif. That as per the site Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.2/10 plan, there is encroachment done by defendant no. 4 & 5 by fixing pillars and stairs etc. in common gali leading towards the stairs of the plaintif. That the plaintif is a poor and widow lady besides Sr. Citizen and is having 3 daughters. That the defendant no.1 is also threating to put the water pipeline in the house of the plaintif in the open space leading towards the gali of 8 ft. at the instance of the defendant no. 4 & 5.
3. In the written statement filed by the defendant no. 5, certain preliminary objections are taken like that the suit is without cause of action and also that the plaintif has not approached the court with clean hands.
4. It is pertinent to mention here that no written statement was filed by any of the remaining defendants despite having sufficient time.
5. It is pertinent to mention here there is no replication filed by the plaintif to the written statement filed by the defendant no. 5.
6. From the pleadings of the parties, following issues were framed on 05.04.2017 :-
1. Whether the plaintiff is entitled to decree of declaration, as prayed for?OPP
2. Whether the plaintiff is entitled to decree of Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.3/10 mandatory injunction, as prayed for?OPP
3. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for?OPP
4. Whether the plaintiff has no cause of action against the defendant no.5?OPD-5
5. Whether the plaintiff has no locus standi to file the present suit?OPD-5
6. Whether the present suit is not maintainable as the same is barred by provision of Section 41(h)of Specific Relief Act?OPD
7. Relief.
7. The plaintif got examined herself as PW-1 in support of her case by relying upon various documents i.e. site plan ( Ex. PW1/A), GPA, agreement to sell , affidavit, receipt {Ex. PW1/B(colly.)}, Relinquishment Deed (Ex. PW1/C), photographs (Ex. PW1/D & Ex. PW1/E). PE was closed on 01.12.2018.
The defendant no. 5 got examined himself as D5W1-1 in support of his stand taken in the written statement, who relied upon the documents i.e. Ex. D5W1/1 to Ex. D5W1/3. There is no evidence led by the remaining defendants in this case. DE was closed on 23.03.2019.
ISSUE NO. 4 & 5:-
"Whether the plaintiff has no cause of action to file the present suit?OPD-5 Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.4/10 "Whether the plaintiff has no locus standi to file the present suit?OPD-5
8. Both the issues are taken up together as the same are inter-connected. The onus to prove the same was upon the defendant no. 5, who has pleaded that plaintif has got no cause of action for filing of the present suit and that the same is liable to be dismissed under Order 7 Rule 11 CPC. It is also pleaded by the defendant no.5 that the plaintif has no locus standi to file the present suit qua the defendant no. 5.
This is a suit for declaration besides permanent and mandatory injunction. Only the averments of the plaint are to be considered while deciding this issue. During his cross- examination, the defendant no. 5(D5W1) has admitted that the gali of 8 ft. was upto the house of the plaintif. It is also deposed that the house of the plaintif is just next to his house. The defendant no. 5(D5W1) also admitted it to be correct that there were pillars at point X, X1, X2, X3 and X4 in the photographs Ex. PW1/D and Ex. PW1/E raised by Sh. Raju Saini i.e. defendant no. 4. It is also deposed by him that he did not place on record any record to show that gali in question is a public street and ends in front of the house of the plaintif. Both the plaintif and the defendant no. 5 are the neighbours. On the basis of the contents of the plaint, the same is found with a valid cause of action.
Accordingly, both the issues are decided against the defendant no. 5 and in favour of the plaintif.
Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.5/10 ISSUE NO. 6 "Whether the present suit is not maintainable as the same is barred by provision of Section 41(h) of Specific Relief Act?OPD
9. The onus to prove this issue was put upon the defendant. It is pertinent to mention here that out of five defendants, it is only the defendant no. 5, who has filed the written statement in this case and the remaining defendants did not take any pain for filing of the same nor they contested the suit. The defendant no. 5 has failed to plead as to what was the equally efficacious relief available to the plaintif as pleaded by him. In the absence of the pleadings, the court has no hesitation in holding and deciding the issue against the defendant.
Accordingly, this issue is decided against the defendant and in favour of the plaintif.
ISSUE NO. 1 to 3 :-
"Whether the plaintiff is entitled to decree of declaration, as prayed for ?OPP "Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ?OPP "Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for ?OPP"
Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.6/10
10. The issue no. 1 to 3 are taken up together as the same are inter-connected. The onus to prove the same was put upon the plaintif.
It is the plea taken by the plaintif that the suit property was purchased by the husband of the plaintif from his mother on 10.01.1996 for a sum of Rs.1.80 lac. That the plaintif has started construction in February, 2016 upon her said portion of 76 sq. yds. That there is encroachment done by defendant no. 4 & 5 by fixing pillars and stairs etc. in common gali leading towards the stairs of the plaintif.
During her examination-in-chief, both the plaintif (PW-1) and the defendant no. 5 (D5W1), re-iterated and re- affirmed their respective pleadings.
Nothing material came out of the cross-examination of plaintif (PW-1) to support the pleadings of the defendant no. 5 and she remained on the same stand. During his cross- examination the defendant no.5 (D5W1) deposed that the house of the plaintif was just next to his house. It was also admitted to be correct by him that the gali of 8 ft. was upto the house of the plaintif. When the attention of the witness was drawn towards the photographs Ex. PW1/D & Ex. PW1/E, he has admitted the same and even, admitted the existence of the pillars at point X, X1 to X4, being raised by the defendant no. 4. It was also deposed by him that he did not place on record any document to show that the gali in question was a Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.7/10 public street. It was also admitted to be correct by him that the gali in question closes at the end in front of the house of the plaintif.
This admission which is clearly made by the defendant no. 5 himself makes it clear that the 8 ft. gali, which is in question in this case, closes at the end i.e. in front of the house of the plaintif herein. This admission made by the defendant no. 5, leaves no scope to believe otherwise that the gali in question closes at the end, where the property of the plaintif ends as pleaded by the defendant no. 5. It is pleaded by the defendant no. 5 that the suit property is a common passage/Rasta and meant for the locality people and that the plaintif intends to grab the same. As per the admission of the defendant no. 5 himself, when the gali in question closes in front of the house of the plaintif, no issue arises as to whether the same is a common passage/Rasta.
11. So far as the relief of declaration is concerned, the plaintif intends to get the document declared as forged and fabricated by pleading the same to be in possession of defendant no. 4 & 5 is concerned, the plaintif has failed to disclose as to what were those documents. In the absence of the specified documents, no issue for the declaration of the same arises at all.
Hence, on the basis of the material available on record including the evidence led by the parties, the issue no. 2 & 3 are decided in favour of the plaintif and against the Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.8/10 defendants and the issue no. 1 is decided against the plaintif and in favour of the defendants.
Relief.:-
12. In view of above discussion and findings on the issues, the suit is partly decreed with the following reliefs:-
(i) The plaintiff is entitled to a decree of mandatory injunction thereby directing the defendant no.2 &3 to demolish/remove the hindrance, pillars, stairs etc. in the 8 ft.
common gali of the plaintiff and defendant no. 1 also restrained to put the pipeline in the open plot of the plaintiff at the instance of the defendant no. 4 & 5.
(ii) The plaintiff is also entitled to a decree of permanent injunction thereby restraining the defendants, their agents, associates, servants, nominees, relatives or any other person acting on their behalf from interfering in to the peaceful use and enjoyment and construction on the suit property as well as from creating any hindrance in the construction of the stairs and affixing the main door in the suit Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.9/10 property without following due process of law.
Decree sheet be prepared accordingly.
Announced in the open Court today the 29.04.2019 RAJINDER KUMAR Digitally signed by RAJINDER KUMAR Date: 2019.05.01 16:08:08 +0530 Smt. Usha Devi Vs. DJB & Ors.
Suit No. 613543/16 Page no.10/10