Delhi District Court
Smt. Kanchan Bala Sood vs Sh. Ravinder Kumar Aggarwal on 1 September, 2016
IN THE COURT OF SH. PRASHANT SHARMA, ADMINISTRATIVE CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER-CUM COMMERCIAL CIVIL JUDGE
(NORTH-EAST), KARKARDOOMA COURTS, DELHI.
C Suit No. 5587/15 (old no. 88/2006)
In the matter of :
1. Smt. Kanchan Bala Sood
D/o Sh. Shivram Sood,
W/o M.Qayamuddin
R/o C-84, Laxmi Nagar,
Delhi-92.
Also at
A-93, Tagore Garden,
New Delhi-110027.
.....Plaintiff
Versus
1. Sh. Ravinder Kumar Aggarwal
S/o Makhan Lal
R/o G-84, Laxmi Nagar, Delhi-92.
2. Smt. Usha Aggarwal
(since deceased)
Through her LRs
(i) Amit Aggarwal (son)
(ii) Sumit Aggarwal (son)
(iii) Ms. Teena Jain (daughter)
All C/o Balaji Sweets no.G-84, Laxmi Nagar, Delhi.
3. MCD
Now known as
East Delhi Municipal Corporation
South Shahdara Zone
Delhi.
....Defendants
Date of Institution : 24.07.1997
Date of Judgment reserved on : 26.05.2016
Date of Pronouncement : 01.09.2016
JUDGEMENT :
1. Present suit for permanent and mandatory injunction was filed by plaintiff namely Smt. Kanchan Bala Sood against defendants namely Sh. Ravinder Kumar CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 1 Of 10 Aggarwal and Smt. Usha Rani, alleging following facts:
"Late Sh. Shanti Narain Sood and Late Sh. Shanti Devi were joint owners of property bearing no. G-84, Laxmi Nagar, Delhi-92 admeasuring 200 sq.yards. After their death, their legal heirs, Satish Narain Sood and Kamlesh Prabha Sood, entered in their shoes and by virtue of partition deed dated 18.08.1989, said property was divided in equal shares, amongst them. . Smt. Kanchal Bala Sood, during her life time, transferred her half undivided share in the said suit property, in favour of plaintiff which was so declared by Hon'ble Delhi High Court in suit no.3056/91. Smt. Kanchan Prabha Sood was survived by plaintiff and Ashwani Kumar Sood. Ashwani Kumar Sood alienated the share of plaintiff, for which plaintiff claimed that she will take proper action. During the life time of Ashwani Kumar Sood, no partition took place between him and plaintiff. That is why, plaintiff alleged that she is the owner of half portion of suit property in question. Based on partition deed dated 18.08.1999, plaintiff claimed that she was entitled to use the entrance from the main road in the west side in property in question. As per her, the entrance to her portion was between the shop of defendants and shop of Smt. Birma Devi regarding which she filed site plan. On 22.07.1997, defendants brought building material and started digging for erecting RCC columns for unauthorized in nature. They also dug out two big ditches and had also broken the part of terrace in question. Said terrace was constructed in the portion of the plaintiff and unauthorized construction raised by defendants which led to digging up of a hole in the terrace, was illegal in nature. Not only that defendants threatened that they will construct RCC pillars in the portion of plaintiff at the CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 2 Of 10 entrance which will lead to blocking of ingress and outgress of plaintiff to her property from the main road. The act of demolition done by defendants, was harmful to the property in question as repeated hammering led to shaking of walls of property in question, as a result of which, cracks developed in the suit property and if it continued, then it will lead to further damage to the suit property. Plaintiff apprehended that in case defendants continued to make their unauthorised construction in the property in question, then it will lead to stoppage of usage of easementary right on the terrace by her. She claimed that defendants had no sanctioned plan to raise said construction in the property. So far as defendants are concerned, plaintiff alleged that they are tenants int eh property. On the contrary, defendants had started claiming themselves to be the GPA holder as they had purchased 50 sq. yards of portion in property in question from Satish Narain Sood. Hence, the plaintiff moved the Court praying that defendants and their agents be restrained from raising any construction on the first floor terrace in the suit property and on the ground floor of the suit premises without sanctioned plan of MCD or concerned authority. She also prayed that decree of mandatory injunction be passed in her favour directing the defendants to restore the terrace foundation and structure of the suit property in question to its original form by removing all unauthorized constructions raised by them in conformity with the site plan annexed to the plaint/or partition deed dated 18.08.1999."
2. In response to aforesaid claim of plaintiff, defendants filed their written statement, in which they took the preliminary objection that plaintiff has no locus standi to file present suit as after partition of the property with her brother Sh.
CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 3 Of 10 Ashwani Kumar Sood, and that she had got independent portion in the property in question. They further claimed that plaintiff has concealed material facts which were that on 11.10.93, defendant no.1 purchased a part of property in question from Sh. Ashwani Kumar Sood, admeasuring 32'x4'5", regarding which documents consisting of Agreement to sell, Power of attorney, Will and Receipt were executed. Those title documents were drafted by Sh. Qayamuddin who was husband of plaintiff. Plaintiff had signed Agreements to sell as attested witness and therefore, she cannot claim that entrance and the passage existed in the front portion for her use leading to the rear portion of property. On merits, they refuted the version of plaintiff by reasserting their version as mentioned in the preliminary objections. They also asserted that they had no concern with terrace in the suit property and had not caused any damage to the suit property. As per them, it was Sh. Satish Narain Sood, who had already carried out normal permissible repair in the suit property in question.
3. Plaintiff filed her replication to the said written statement of defendants, in which she refuted the version of defendants and reiterated the claim as mentioned in the plaint. She denied the status of defendants being the owners of portion in property in question and the fact that any partition had taken place between her and Sh. Ashwani Kumar Sood regarding suit property in question.
4. During the course of proceedings, defendant no.2 Smt. Usha Rani expired and her LRs viz. Amit Aggarwal (son), Sumit Aggarwal (son) and Teena Jain(daughter) were impleaded as defendants in her place. Those LRs of defendant no.2, adopted the written statement of defendant no.1 and did not lead any evidence separately. Defendant no.3 MCD was proceeded exparte vide order dated 25.05.2009. So, it was defendant no.1, who led evidence.
5. After completion of pleadings, following issues were settled by the Court.
1)Whether the plaintiff has no locus standi to file the present suit? (OPD)
2)Whether the suit is bad for non joinder of necessary parties? (OPD)
3)Whether the plaintiff is entitled for the relief of decree of permanent injunction as prayed for? (OPP)
4)Whether the plaintiff is entitled to the relief of mandatory injunction as CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 4 Of 10 prayed for? (OPP)
5)Relief.
6. Subsequently, matter was fixed for plaintiff's evidence. Plaintiff examined seven witnesses. She examined PW1 Kamlesh Shah, LDC, RKD Branch, High Court of Delhi, who had brought the original record of ID no.3056/91 and testified that judgement Ex.PW1/A and decree sheet Ex.PW1/B are true photocopies of original of the said suit.
7. She examiend PW2 Vijay Kumar Rawat, who brought original deed of partition dated 18.08.1989 Ex.PW2/1.
8. She further examined Anil Kumar Nair as PW3, her old tenant in suit premises in question, who reiterated the facts as mentioned in the plaint in his affidavit Ex.PW3/A. He also relied upon partition deed dated 18.08.1989 by referring it as Ex.PW3/1. Though this partition deed was objected to on the mode of proof by defendants but since said partition deed was already proved by PW2, so said objection was overruled at that stage.
9. Plaintiff examined herself as PW4 and tendered in evidence her affidavit Ex.PW4/A in which she reiterated the facts as mentioned in the plaint. She relied upon partition deed Ex.PW1/A, judgement and decree sheet dated 13.07.1993 Ex.PW1/B and Ex.PW1/C respectively, complaints to police and MCD Ex.PW1/D and Ex.PW1/E respectively, photographs of unauthorised construction Ex.PW1/F-1 to F-
7. She also placed on record, negatives of photographs Ex.PW4/3 respectively.
10. She examined one Sushil Tyagi, UDC from the Office of Executive Engineer, Building MCD, Shahdara, Delhi(South Zone), who had testified that complaint dated 25.07.1997 was received by his department which was recorded in complaint bearing Ex.PW5/A. Lastly, plaintiff examined Sh. Satish Narain Sood who testified that he and Kanchan Bala Sood had partitioned the suit property in question. He also testified that he had sold his portion to defendant Ravinder Aggarwal. Subsequently, plaintiff closed her evidence.
CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 5 Of 10
11. Subsequently, matter was fixed for defendant's evidence.
12. Defendant examined only one witness i.e. Sh. R.K.Aggarwal, defendant himself as DW-1 who tendered in evidence his affidavit Ex.DW1/A in which he reiterated the facts as mentioned in the written statement of the defendants which are not repeated here for the sake of brevity. He relied upon registered sale dated 12.10.93 in his favour Ex.DW1/1. Objection was raised by plaintiff on the ground that same cannot be proved in the present proceedings, which was allowed as this is not a title based suit.
13. Subsequently, defendants closed their evidence and matter was fixed for final arguments.
14. After hearing final arguments, matter was fixed for judgement.
15. My issue wise findings are given in my subsequent paragraphs:
Issue No. 3: Whether the plaintiff is entitled for the relief of decree of permanent injunction as prayed for? (OPP)
16. DW1, who is defendant himself, testified in his testimony that neither he nor his agent will construct on the first floor, terrace in suit premises bearing no. G-84, Laxmi Nagar, Delhi with duly sanctioned building plan of MCD or concerned authority. Same was what the plaintiff had sought in his plaint. Since Defendant no.1 conceded so, therefore, no further appreciation is needed with regard to said relief. This issue is therefore, decided in favour of plaintiff and against the defendant.
Issue No.4: Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? (OPP)
17. Plaintiff had pleaded in her plaint that a decree of mandatory injunction may be passed in her favour, thereby directing the defendant to restore the terrace foundation and structure of suit property to its original form by removing of unatuhorised construction raised by them in accordance with the site plan annexed to CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 6 Of 10 the plaint and/or the partition deed dated 18.08.1989. On the face of it, said prayer was not precise as plaintiff did not know as to how she wanted suit property in question to be restored. In her prayer, she had prayed that "unauthorised construction may be directed to be removed by defendants in conformity with the site plan annexed with the plaint and/or with the partition deed dated 18.08.1989." Since prayer is part of the plaint, which is pleading as per Order 6 Rule 1 CPC, so as per Order 6 Rule 2 CPC said plaint should have been prepared in concise form. Object of pleading is to intimate other side about particular facts of the case and also to enable the Court to determine as to what is the real issue between the parties. As a reasonable prudent person, plaintiff should have specified specifically as to which is the yard stick which was breached by defendants by making alleged unauthorized construction in suit property. Her use of expression "and/or" in the prayer clause for decree of mandatory injunction, only indicates that she was not clear and precise. Thus, not only defendants, rather this Court was not sure as to in what form, plaintiff exactly wanted decree of mandatory injunction.
18. Besides that, her plaint itself was vague in nature, as it did not mention as to on what basis/proofs, plaintiff had claimed defendants to be tenants in suit property, it did not disclose as to how Ashwani Kumar Sood had illegally alienated the share of plaintiff, it did not mention as to what legal action was initiated by plaintiff for the said act of Ashwani Kumar, it did not mention as to how in the absence of any recognized/sanctioned site plan, plaintiff had claimed unauthorized construction being done by defendants in the suit property, it did not mention as to how plaintiff had alleged that defendants had made unauthorized construction in the suit property, as it was not the case of plaintiff that she had seen the defendants or their agents doing said unauthorised construction in the suit property. All the aforesaid aspects were relevant as based on those aspects, I could have appreciated grievance of plaintiff so far as her relief for permanent injunction was concerned. In their absence, doubt was created with respect to the case of plaintiff.
19. In her evidence, plaintiff examined herself as PW4. She conceded in her cross examination that she had no knowledge as to who had spent money for the unauthorized construction in the suit property. It was not her case that she had seen CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 7 Of 10 defendants giving directions to the labour/agents for doing unauthorized construction in the suit property. Even otherwise, she did not file any proof regarding her allegation that it was defendants who had brought the building material at the site in question and it was defendants who had made alleged unauthorized construction in the suit property. Photographs Ex.PW4/A (collectively) relied by her only reflected that some construction was going on. By no stretch of imagination, it can be deduced that it was defendants at whose instance, said building material was brought on the site in question and any construction was made by them. Therefore, plaintiff through her testimony did not prove her case.
20. Besides her, she had examined Sh. Anil Kumar Nayar, as PW3. This witness had testified that initially, he was tenant of Sh. Shanti Narain Sood but later on plaintiff told him that she had purchased the suit property from Kamlesh Prabha Sood and therefore, has become his landlady. Thus, in the said fashion, he testified that he had become tenant of plaintiff in his affidavit Ex.PW3/A. He nowhere filed any proof of his tenancy either under Shanti Narain Sood or under plaintiff. Though he had deposed in his examination in chief that he was tenant of Courtyard on the ground floor of the property in question but in his cross examination, he deposed that Sh. Shanti Narain Sood had not given the said portion to him for use in writing. Thus, the extent of tenancy and the extent of portion being occupied by him, remained doubtful. Besides that, he took U turn in his cross examination when he deposed that no threats were advanced by defendants for making unauthorized construction in the suit property whereas in his examination in chief, he had stated to the contrary. So said U turn, made his testimony doubtful. Besides those aspects, I found that he had conceded in his testimony that plaintiff had got rear portion of suit property in question which meant that as such plaintiff had got a separate and exclusive portion in the suit property which dismantled the case of plaintiff regarding her right of way through the property of defendants. Lastly, this witness in categorical terms did not depose that because of the unauthorized construction allegedly raised by defendants, any of his easementary rights are affected. It was this witness, who was occupying the portion of plaintiff in suit property and it was incumbent upon him to have at least deposed so in his testimony. Thus, testimony of this witness did not help the case of plaintiff.
CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 8 Of 10
21. PW5 Sh. Sushil Tyagi, UDC in the Office of Executive Engineer, had testified that his department had no site plan which was got approved by defendants R.K.Aggarwal. If that is so, then I found that plaintiff wanted to tell that defendants were making unauthorized construction in the suit property without any sanctioned site plan being issued by MCD. Before plaintiff could have raised said issue, she should have explained as to whether she had any sanctioned site plan of suit property in question or not? She did make a whisper in her pleadings and her evidence, which only probabalised the possibility that suit property in question as whole is an illegal structure. If that is so, then no legal right can be derived by plaintiff pertaining to demolish of unauthorized construction in the suit property, based on said illegal structure.
22. Lastly, plaintiff had examined Sh. Satish Narain Sood, who in categorical terms, testified that he had sold his portion to defendant Ravinder Kumar Aggarwal, which only dismantled the case of plaintiff that defendants were occupying the suit property in the capacity of being tenants.
23. The net result of aforesaid appreciation is that plaintiff failed to prove that it was defendants who made any unauthorized construction in the suit property in question. Aforesaid issue is decided against plaintiff and in favour of defendants.
Issue No.1:Whether the plaintiff has no locus standi to file the present suit? (OPD)
24. Onus of proving the aforesaid issue rested on defendants. Through pleadings and through evidence, it has come on record that plaintiff had got the rear portion in suit property in question. Defendants had categorical taken the stand in their written statement that plaintiff had exclusive way for ingress and outgress in suit property. In support of that, plaintiff herself placed on record the partition deed Ex.PW2/1 which in para 15 notified that Smt. Kamlesh Prabha Sood (from whom plaintiff derived her title) had got extent to her portion from west side which meant that there was exclusive way for ingress and outgress of plaintiff also. It is an admitted position that plaintiff's portion and portion of defendants in suit property in question, is adjacent as CS No.5587/15 Kanchan Bala Sood vs. Ravinder Kumar Aggarwal & Ors. 9 Of 10 reflected in site plan, placed on record and other documents. Once construction had started in the suit property, plaintiff got the cause of action to challenge the same, as she had apprehension that said construction may damage her property. The fact that construction work had started at the suit property where plaintiff had got certain portion, which as per plaintiff, affected her property, therefore, gave cause of action to plaintiff to file this suit. It remained a different story that plaintiff failed to prove her case but she had the locus standi to file present suit. More so, where defendants failed to discharge the onus. This issue is decided in favour of plaintiff.
Issue no.2: Whether the suit is bad for non joinder of necessary parties? (OPD)
25. Defendants failed to prove this issue as onus was on them. This issue is decided against them.
26. The suit is decreed to the above extent. No order as to costs. Decree sheet be prepared. File be consigned to record room after necessary compliance. Announced in the open court today the 1st day of September, 2016.
(PRASHANT SHARMA) ACJ/ARC/CCJ North-East District, KKD Delhi.
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