Delhi District Court
Mrs. Meena Bhanari vs Late Sh. Joginder Singh Mehta on 11 January, 2022
Meena Bhandari V. Joginder Singh Mehta
IN THE COURT OF SH. ALOK SHUKLA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL
DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR no. DLCT01-003432-2018
SUIT NO.:- 169/2020
UNIQUE CASE ID NO.:- 1481/2018
IN THE MATTER OF :-
Mrs. Meena Bhanari
W/o Shri Narender Bhandari,
R/o H. No. 53, Glaheri Bagh Scheme,
Prem Nagar, Sabzi Mandi,
New Delhi-110007. ....Plaintiff
VERSUS
1. Late Sh. Joginder Singh Mehta
(since deceased) Through his legal heir
Sh. Manjeet Singh
S/o Late Sh. Joginder Singh Mehta
R/o 29, South Wing, Riviera Apartment,
45, Mall Road, Delhi 110054
2. North Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk
Delhi -110006
....Defendants
AND
Sh. Joginder Singh Mehta
(Now deceased) (expired on 05/08/2020)
Through his legal heir
..... Claimant(defendant no. 1)
Sh. Manjeet Singh
S/o Late Sh. Joginder Singh Mehta
R/o 9, South Wing, Riviera Apartment,
45, Mall Road, Delhi 110054
Suit No. 1481/2018 Page No. 1 of 41
Meena Bhandari V. Joginder Singh Mehta
VERSUS
Mrs. Meena Bhanari
W/o Shri Narender Bhandari,
R/o H.No. 54, Prem Nagar,
Sabzi Mandi,
Delhi-110007. .... Respondent(Plaintiff)
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
AND
COUNTER CLAIM ON BEHALF OF SH. JOGINDER SINGH MEHTA UNDER ORDER 8 RULE 6(A)(B) READ WITH SECTION 151 OF CPC FOR MANDATORY INJUNCTION AND PERMANENT INJUNCTION.
Date of institution of the Suit : 18/08/2010
Date of filing of counter-claim : 25/08/2010
Date on which Judgment was reserved : 07/12/2022
Date of Judgment : 11/01/2022
::- J U D G M E N T -::
By way of present judgment, this court shall adjudicate upon suit for permanent and mandatory injunction filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT :
Succinctly, the necessary facts for just adjudication of the present suit, as stated in the plaint are as under:-
1. That the plaintiff is the owner and in possession of the built up property on a plot of land ad-measuring 147.482 square yards ( equal to 123.29 square meters) bearing No. 53 (having 2 side open) situated in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi- 110007. The said Suit No. 1481/2018 Page No. 2 of 41 Meena Bhandari V. Joginder Singh Mehta property is shown in green colour in the lay out plan of Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi- 110007.
2. That the said property was purchased by the plaintiff from Smt. Mohini Mehta wife of the defendant No.1 vide a registered sale deed dated 11.2.2008 having Registration No. 856 in Additional Book No.1, Volume No.2437 on pages 52 to 64 registered on 11.2.2008 in the office Sub Registrar- I, New Delhi. After the purchase of the property, the plaintiff made fresh constructions on the same by demolishing the old structure after getting the building plan sanctioned from the competent authority.
3. That there is a 20 ft. wide road in the South- East side of the said property of the plaintiff. The said road is shown in red color in lay out plan of Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi- 110007 attached.
4. That on the other side of the said road, the defendant No.1 claims to have his own plot facing the house of the plaintiff. The same is shown in blue color in the lay out plan of Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi-110007.
5. That the crux of dispute is that the defendant No.1 wants to encroach upon the portion of the road situated between the property of plaintiff and his property. The defendant No.1 used to threaten the plaintiff to close openings of her property towards the said road and asserts that he is the owner of this chunk of the portion of the road and that he had every right to make construction on the said portion.
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6. That the defendant No.1 have no right, title, interest or possession in the portion of the said road and he is threatening to encroach upon the said road only out of his high handedness and being the old resident of the locality.
7. That there is a deed of conveyance dated 03.06.1958 having Registration No. 2918 in Additional Book No.1, Volume No. 426 on pages 70 to 85 registered on 20.6.1958 in the office of Sub Registrar- I, New Delhi between Pandit Krishna Prasad Bhargava and Shri Madan Lal Chaddha, Shri Kishan Lal Chaddha, Shri Kedar Nath Chaddha and Smt. Leelawati by virtue of which said Pandit Krishna Prasad Bhargava had transferred the land of 39 Plots (from Plot No.53 to 91) situated in Glaheri Bagh Scheme, Sabzi Mandi, Delhi measuring 3886 Sq. Yds. in area along with all the buildings and quarters constructed and built in this area to said Shri Madan Lal Chaddha and others. Along with said conveyance deed dated 03.06.1958 a lay out plan of the area is also attached and in the said lay out plan the road in question has been fully marked and delineated. The plot No.53 which is now in ownership and possession of the plaintiff and on which now the house of the plaintiff is situated, is also shown in the said lay plan attached to the said conveyance deed dated 03.06.1958.
8. Above Shri Madan Lal Chaddha for self and general attorney of Smt. Leelawati Chaddha, Shri Kedar Nath Chaddha and Shri Kishan Lal Chaddha transferred the Plot bearing No.53 to Smt. Mohini Mehta wife of the defendant No.1, Sh. Joginder Singh by executing a sale Suit No. 1481/2018 Page No. 4 of 41 Meena Bhandari V. Joginder Singh Mehta deed dated 03.02.1960 duly registered as document No.422 in Additional Book No.1, Volume No.525 on pages 91 to 98 dated 05.02.1960 in the office of Sub Registrar -1, Delhi.
9. Smt. Mohini Mehta had transferred the property situated on the said plot No. 53 to the plaintiff as stated herein above. It is also important to note that in the sale deed dated 11.02.2008 executed by Smt. Mohini Mehta wife of the defendant No.1 Sh. Joginder Singh in favor of the plaintiff it has been admitted that the built up property No. 53 sold as per the said sale deed is two side open.
10. That the defendant No. 1 kept silent till the construction of the new building was completed by the plaintiff after purchasing the property from the wife of the defendant No.1. It is only after the construction was completed in the month of June, 2010, the defendant No.1 started raising objections to the opening of the house of the plaintiff towards road in question and started claiming that the portion of the road in front of the house of the plaintiff belongs to him and that he wants to construct his own building on the same. Since then plaintiff and her family members have been facing a continuous nuisance and disturbance from defendant no.1.
11.That the defendant No. 1 has also lodged a false and frivolous complaint with the police on or about 27.6.2010. Since then the police has been regularly calling the plaintiff and her husband to the police station Roop Nagar. However, the police have not taken any action in the matter as the dispute between the parties is of civil nature.
Suit No. 1481/2018 Page No. 5 of 41Meena Bhandari V. Joginder Singh Mehta But on this account the plaintiff and her family has been harassed.
12.That all the houses on the both sides have doors opening on the said road and the construction of the house of the plaintiff is also similarly made in accordance with the sanctioned building plan.
13.That the plaintiff objected and requested the defendant No.1 not to carry out any kind of construction as stated above but the defendant No.1 has threatened the plaintiff with dire consequences, if the plaintiff or any of her family members interferes or object in anyway to the construction activities proposed to be made by the defendant No.1 on the road in question.
14.That in this regard on 10.8.2010 and 11.8.2010, complaints were made to the defendant No. 2, Municipal Corporation of Delhi for taking legal actions against the defendant No. 1 and for protecting and preserving the road in question. Despite the said complaints, the defendant No. 2 has not taken any action in the matter. The sword of the Damocles is still hanging on the head of the plaintiff.
15.That the plaintiff would be directly affected by any kind of construction or the encroachment, if made by the defendant No.1 on the portion of the road in question. Therefore, the plaintiff is entitled to the discretionary relief of permanent and mandatory injunction as prayed for.
16. That the unauthorized and illegal construction and encroachment in any settled, permanent and old road is per se illegal and therefore, its impact is not needed to be explained and highlighted. That taking of the appropriate Suit No. 1481/2018 Page No. 6 of 41 Meena Bhandari V. Joginder Singh Mehta legal action by the defendant No. 2 in such a case is its statutory duty. The defendant No. 2 is also fully empowered in this regard. Similarly, the defendant No. 1 is also duty bound to honour the law of the land. The enforcement of such powers and to observe such duties are not dependent on any kind of the complaint to be necessarily made. Their inaction and breach had compelled the plaintiff to move in the shape of the present suit.
17. That due to the above proposed illegal, wrongful and proposed acts and deeds of the defendant No.1 it has now become necessary and expedient for the plaintiff to take an appropriate legal recourse in the matter and for vindication of her rights. In view of the aforementioned facts and circumstances, the plaintiff filed the present suit for Permanent and mandatory injunction against the defendants.
18. Summons were issued. Defendants have appeared and filed their written statement.
CASE OF DEFENDANT NO.1 AS PER WRITTEN STATEMENT
19. Succinctly, the case of defendant no.1 is as under:
(i) That Plaintiff has suppressed the fact that suit property is in actual physical possession of answering defendant even before the purchase of property by predecessor of Plaintiff. Plaintiff has suppressed the fact that property in dispute bears the municipal no. 7306, Prem Nagar, Delhi. Plaintiff has also suppressed the fact that property in dispute Suit No. 1481/2018 Page No. 7 of 41 Meena Bhandari V. Joginder Singh Mehta is assessed to House tax and answering defendant is paying House tax regularly. Plaintiff has suppressed the fact that property in dispute is covered by iron grills as well as gate. Plaintiff has also suppressed the fact that there is a submersible pump installed in the property in dispute for a very long time.
Plaintiff has also suppressed the fact that there was construction on property in dispute. Plaintiff has also suppressed the fact that property in dispute was sold by rehabilitation Department through registered sale deed dated 31/05/1960 by the president of India. Plaintiff has also suppressed the fact that in the year 1960 answering defendant filed a suit no. 106/1960 before Ld. Sub Judge (First Class), Delhi against Defendant no. 2. Plaintiff has also suppressed the fact that decree was passed by Appellate Court in favor of the answering defendant declaring that answering defendant is owner in possession of property in dispute and Defendant no. 2 i.e. MCD was restrained from interfering in the possession of the answering defendant, Plaintiff has also suppressed the fact that answering defendant filed an Execution Application against Defendant no. 2 i.e. MCD. Plaintiff has also suppressed the fact that Ld. Judge Sh. P.S. Singhla: Sub Judge First Class), Delhi directed MCD i.e. Defendant no. 2 vide order dated 04/12/1963 stating therein "I give 90 days time to MCD from today to reconstruct the premises in the same condition in which it was at the Suit No. 1481/2018 Page No. 8 of 41 Meena Bhandari V. Joginder Singh Mehta time of demolition failing which the decree holder shall be entitled to reconstruct the premises in the same position and recover the expenses from the corporation". Plaintiff has also suppressed the fact that relevant record was shown to the police in the presence of the husband of Plaintiff as well as of Plaintiff. Plaintiff has not come to the Court with clean hands. Plaintiff has suppressed material facts, only on this ground the suit of the Plaintiff may kindly be dismissed with special costs.
(ii) That plaint does not disclose any cause of action and the same is liable for rejection. Answering defendant never threatened to make any new construction. Even Plaintiff has not mentioned any date, time or month on which the answering defendant threatened to construct.
(iii) That Plaintiff has filed a non-existent layout plan which is not according to the actual position. In layout plant, Plaintiff has tried to show that plot no. 53 is in Rectangular shape having four sides whereas plot no. 53 is having 3 sides only. The property which was purchased by Smt. Mohini Mehta was measuring 22 '(Feet) 10 "(Inch) on south, 63' 6" on east side and 47 '3 "on west side. The property which was purchased by Smt. Mohini Mehta was in a Triangular shape and not in Rectangular shape. Plaintiff has intentionally did not produce the site plan of his property whereas he is alleging that he has got his site plan sanctioned and Suit No. 1481/2018 Page No. 9 of 41 Meena Bhandari V. Joginder Singh Mehta the alleged layout plan is totally against the factual position. There was never a Gali or road on the property in dispute i.e. H. No. 7306 and the house were constructed and were sold by Rehabilitation Department to the answering defendant. Even in sale deed said to be executed by Smt. Mohini Mehta in favor of the Plaintiff shows that there is H. No. 7306 on the south of H. No. 53. H. No. 53 was never two side open. Plaintiff with dishonest intention without the knowledge and consent of Mohini Mehta has written two side open in sale deed. Smt. Mohini Mehta is taking separate legal action against the Plaintiff and his conspirator from him. Plaintiff has tried to mislead this Court by stating in the plaint that there is a 20 ft. vide road on the south east of H. No. 53 whereas on the east side of H. No. 53, there is H. No. 54 which is in occupation of Smt. Gurpreet Kaur Mehta W / o Late Sh. Mohinder Singh Mehta. It is pertinent to mention that plot no. 53 is having its entry from western side where park ends. Had Plaintiff produced the correct site plan of property in dispute and of H. No. 53 said to be owned by the Plaintiff, this Hon'ble Court might have thrown out the case of the Plaintiff at the threshold. It is pertinent to mention that property No. 7307 & 7306 are adjacent to each other and are owned by answering defendant who is in possession of the same.
Suit No. 1481/2018 Page No. 10 of 41Meena Bhandari V. Joginder Singh Mehta
(iv). That Plaintiff has intentionally given wrong address of the answering defendant. Answering defendant has filed a caveat before this Court. In caveat, Plaintiff has given his address as flat no. 9, South Riviera Apartments, 45 Mall Road, Delhi-54 whereas Plaintiff has given wrong address of answering defendant in plaint so that answering defendant Du could not be served at the correct address on time.
(v) That Plaintiff herself is the wrongdoer. Plaintiff has constructed some steps (stairs) in absence of answering defendant in house no. 7306, Prem Nagar, Delhi which is under ownership and possession of answering defendant.
(vi) That property in dispute is under ownership of answering defendant. This fact has become Res- judicata between the parties. As per decision in suit no. 106/1960, Plaintiff is neither owner nor in possession of suit property. Plaintiff has no locus- standi to file the present suit. Answering defendant is an old man of 83 years. Sh. Narender Bhandari and Plaintiff who are residing in H. No. 53, Prem Nagar, Delhi are harassing and causing mental agony to answering defendant. In the last week of June 2010 Sh. Narender Bhandari and Plaintiff constructed a gate and a stair case facing towards house of answering defendant i.e. H. No. 7306, Prem Nagar, Delhi. Answering defendant objected to the construction of the gate and stair case. Sh.
Suit No. 1481/2018 Page No. 11 of 41Meena Bhandari V. Joginder Singh Mehta Narender Bhandari told that he has done so with the permission of Mr. Manjeet Singh. Answering defendant explained to Sh. Narender Bhandari that answering defendant is sole owner of this property so he should demolish the said gate and stair case immediately failing which answering defendant would take legal action against him. Plaintiff and her husband had no right to construct the gate towards the property of answering defendant and construct the stairs on the property of answering defendant. At this altercation started between Defendant and Sh. Narender Bhandari on 28/06/2010, Police was called to settle the dispute and in police station all documents were shown, but Plaintiff and Sh. Narender Bhandari did not demolish the said gate and stairs. Answering defendant apprehended that Plaintiff shall approach the Court and shall try to take the relief ex-parte. Answering defendant moved an application (Caveat U/s 148A of CPC on 19/07/2010) and copy of caveat was sent to Plaintiff. In order to defraud this Court Plaintiff has given wrong address of answering defendant with the intention that answering defendant may not be able to prepare his defense of her on time. Plaintiff has filed the suit knowingly that claim made by her in this suit is false and frivolous. Answering defendant is making the prayer as a counter claim that Plaintiff may kindly be directed to remove the stairs and gate which Suit No. 1481/2018 Page No. 12 of 41 Meena Bhandari V. Joginder Singh Mehta Plaintiff has constructed in the property of answering defendant bearing no. 7306, Prem Nagar, Delhi.
(VII) Defendant no. 1 expired during the pendency of the present suit and LRs of defendant no. 1 was brought on record vide order dated 15.02.2021. CASE OF DEFENDANT NO.2 AS PER WRITTEN STATEMENT
20. Succinctly, the case of defendant no.2 is as under:-
(i) That the suit is barred by the provisions of Section 477 and 478 of the D.M.C. Act, 1957 for want of service of statutory notice and as such the suit is not maintainable and is liable to be dismissed.
(ii) That after perusal of the contents of the plaint particularly para no. 6 wherein the plaintiff has alleged that the defendant no. 1 is threatening to encroach upon the said road are self explanatory that the present suit has been filed in anticipation and not on a valid and subsisting cause of action as such the suit is not maintainable and liable to be dismissed.
(iii) That the plaintiff has not come with clean hands and suppressed the material facts that she had already filed another suit bearing no. 343/2010 before the court of Sh. V.K. Yadav, Addl. District judge, Delhi on the same cause of action but there are many defendants including Union of India and others, but these facts have not been deposed before this court and even otherwise it may lead to conflicting decisions by different courts and the Suit No. 1481/2018 Page No. 13 of 41 Meena Bhandari V. Joginder Singh Mehta present suit is also barred u/s 10 of CPC and the plaintiff is not entitled to any relief as the suit is hit by the provisions of Section 41 (h) & (i) of Specific Relief Act.
(iv) That after perusal of the contents of the plaint it reveals that it is a dispute between the plaintiff who is the subsequent purchaser of the suit property and the wife of the defendant no. 1, who had sold the said property to the plaintiff and even in the sale deed dated 11/2/2000 placed by the plaintiff along with the suit it appears that the property purchased by the plaintiff is bounded by:-
North : Other property no. 22/4 Shakti Nagar South : Plot no. 7306 East : Other built up property on plot no. 54 West : Park This fact establish that the property of the plaintiff is not having two side road/street and the plaintiff has alleged that the defendant no. 1 wants to encroach upon the road. There is contradiction in the prayer as well as in the sale deed and as such the present suit is not maintainable and liable to be dismissed.
(v) That the plaintiff stated in para no. 2 of the plaint that after purchase of the property in question by registered sale deed dated 11/02/2008, she raised fresh construction on the same by demolishing the old structure after getting the building plan sanctioned from the competent authority, but the Suit No. 1481/2018 Page No. 14 of 41 Meena Bhandari V. Joginder Singh Mehta plaintiff has not placed on record any sanctioned building plan which have been passed by the competent authority as alleged and the answering defendant reserves its right to file detailed reply to this effect after verifying the sanctioned building plan with the existing structure and the roads.
COUNTER CLAIM OF DEFENDANT NO.1
21. Defendant no. 1 has also filed counter claim:
(i) That Smt. Mena Bhandari Plaintiff has filed a suit no. 147 of 2010 for Permanent and Mandatory Injunction against claimant. Defendant no. 1 in said suit is filing the present counter claim against Respondent who is Plaintiff in said suit. Hereinafter Defendant no.1 in said suit is referred to as Claimant and Plaintiff in said suit is referred to as Respondent.
(ii) That Claimant is owner in possession of H. No. 7306, Prem Nagar, Delhi. Claimant purchased this house from rehabilitation department through a registered sale deed dated 31/05/1960. Above said house is assessed to house tax by MCD. In the year 1960 MCD tried to demolish the above said house.
Claimant filed a suit no. 106/1960 against MCD before Ld. Sub Judge (First Class), Delhi. Said suit was decreed by Appellate Court in favor of Claimant. Claimant was declared owner in possession of above said house and MCD was restrained from interfering in possession of Claimant. During the pendency of appeal MCD in Suit No. 1481/2018 Page No. 15 of 41 Meena Bhandari V. Joginder Singh Mehta violation of stay order demolished the suit property i.e. H. No. 7306, Prem Nagar, Delhi. Thereafter Claimant filed an Execution Application which was decided by Sh. P.S. Singhla: Ld. Sub Judge (First Class), Delhi on 04/12/1963 stating therein "I give 90 days time to MCD from today to reconstruct the premises in the same condition in which it was at the time of demolition failing which the decree holder shall be entitled to reconstruct the premises in the same position and recover the expenses from the corporation".
(iii) That property in dispute i.e. 7306, Prem Nagar, Delhi is under ownership of Claimant and is not a road. This fact has become a Res-judicata. No one can challenge this fact.
(iv) That in the last week of June 2010, Claimant came to know that Respondent and her husband are raising stairs in the property of Claimant i.e. H. No. 7306, Prem Nagar, Delhi. Claimant on coming to know about illegal construction of stairs in suit property by Respondent and opening of gate towards the H. No. 7306 of Claimant, Claimant requested Respondent and her husband to remove the stairs and opening of gate towards the side of property in dispute. On 28/06/2010 an altercation took between Claimant and husband of Respondent Sh. Narender Bhandari. Claimant reported the matter to police. Thereafter Claimant made written complaints dated 30/06/2010 and 23/07/2010. Police Suit No. 1481/2018 Page No. 16 of 41 Meena Bhandari V. Joginder Singh Mehta is under the influence of Respondent and her husband and is lingering on the matter.
(v) That Claimant has filed Written Statement to the suit of Respondent bearing no. 147/10. Averments and defenses made in said Written Statement may kindly be read as part and parcel of this counter claim. Contents of said Written Statement are not being repeated herein for the sake of brevity.
(vi) That Claimant is an old man of 83 years. Respondent has no right to interfere in the possession of Claimant. Respondent has also no right to raise stairs in the suit property. Respondent has also no right to open any gate towards the side of suit property i.e. H. No. 7306, Prem Nagar, Delhi.
(vii) That Respondent was requested not to interfere in the possession of claimant on suit property as Claimant is owner in possession of suit property and Respondent was having no right to construct stairs or open any gate towards the suit property, so she should remove the stairs and close the gate in the side of suit property. Instead of removing the stairs and closing the gates Respondent has filed suit no. 147/10 on false averments that Claimant has threatened to make construction on suit property. Suit of Respondent is false and frivolous. Prior to the suit of Respondent, Claimant has filed a caveat bearing no. 111/2010 against the Respondent.
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(viii) That Respondent has not removed the stairs and has also not closed the gate opened inside the suit property. Rather Respondent is threatening to interfere in the peaceful possession of Claimant on the suit property.
(ix) That by illegal acts of Respondent, Claimant is suffering irreparable loss which cannot be compensated in terms of money. Claimant is aged about 83 years. By illegal acts of Respondent Claimant has also suffered mental torture. Respondent has no right to interfere in the possession of Claimant on the suit property i.e. H. No. 7306, Prem Nagar, Delhi. Respondent has no right to raise any construction or open any gate towards suit property.
22. On the basis of the pleadings following issues were framed:-
(i) Whether the plaintiff is entitled for relief of permanent injunction as prayed in the plaint? OP
(ii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed in the plaint? OPP
(iii) Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-2
(iv) Whether the plaintiff has concealed the material facts as disclosed by defendant no. 1 in para no. 3 of the preliminary objections of the WS? OPD-1 Suit No. 1481/2018 Page No. 18 of 41 Meena Bhandari V. Joginder Singh Mehta
(v) Whether the plaintiff has no locus standi to file the present suit in view of preliminary objection no. 12 of WS of defendant no. 1? OPD-1
(vi) Whether defendant no. 1/ counter claimant is entitled for the relief of permanent injunction as prayed in the counter claim? OPD-1
(vii) Whether defendant no. 1/counter claimant is entitled for the relief of mandatory injunction as prayed in the counter claim? OPD-1
(viii) Relief PLAINTIFF'S EVIDENCE
23. Plaintiff has examined herself as PW1 and relied upon evidence by way of affidavit ExPW1/A and documents as under:-
(i) Lay out plan of Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi 110007 is ExPW1/1
(ii) Certified copy of the sale deed dated 11/2/2008 is ExPW1/2.
(iii) Conveyance deed dated 3/6/1958 is mark A.
(iv) Lay out plan attached in the sale deed is mark B.
(v) True copy of complaints dated 10/8/2010 and 11/8/2010 are ExPW1/5 and ExPW1/6.
(vii) Certified copies of the plaint of CS No. 343/2010 is ExPW1/7.
DEFENDANTS' EVIDENCE
24. Sh. Joginder Singh Mehta has deposed as DW1 and reiterated the contents of the written statement and relied Suit No. 1481/2018 Page No. 19 of 41 Meena Bhandari V. Joginder Singh Mehta upon evidence by way of affidavit ExDW1/A and documents as under:
(i) Copies of payment of House Tax and notices are ExDW1/1 (colly.)
(ii) Photographs of the suit property areExDW1/2 (Colly.)
(iii) Copy of sale deed dated 31/5/1960 is mark A.
(iv) Copy of order dated 4/12/1963 passed by Sh.,P.L. Singhla, Ld. Sub- Judge, Tis Hazari Delhi is mark B.
(vi) site plan is ExDW1/5.
(vi) Copies of complaint are ExDW1/6 (Colly.)
(vii) Postal receipts are Mark C colly.
(viii) Copy of caveat and AD are mark D colly.
(ix) Copy of written statement filed on behalf of defendant no.2 in case Meena Bhandari vs. UOI and ors is ExDW1/10.
(x) Copy of register of judicial record is ExDW1/11.
(xi) Copy of application for certified copies with report are ExDW1/12 (Colly.)
(xii) Copy of reply of ID no. 976 dated 17/2/2012 is ExDW1/13.
(xiii) Copy of letter dated 26/02/2016 regarding RTI is ExDW1/14.
(xiv) Copy of site plan dated 19/5/1960 is ExDW1/15.
(xv) Copy of letter dated 02/06/1960 is ExDW1/16.Suit No. 1481/2018 Page No. 20 of 41
Meena Bhandari V. Joginder Singh Mehta (xvi) Certified copy of plaint with affidavit is ExDW1/18.
25. DW2 Sh. Nagendra Shah, UDC Evacuee Property Cell, Land & Building Department, Vikas Bhawan, New Delhi was a summoned witness who had brought record i.e. original file no. AC/J/S-7/1124 pertaining to property no XII/8040-44 (New no. 7306) Prem Nagar, Sabji Mandi, Delhi. He has exhibited Site plan as ExDW2/1 and Certified copy of the letter dated 02/06/1960 and Appendix XXIV i.e. format of proposed deed of conveyance is ExDW2/3.
26. Sh. Pardeep Kumar Jindal has deposed as D2W1 and reiterated the contents of the written statement and relied upon evidence by way of affidavit ExD2W1/A and sale deed dated 11/2/2009 as ExD2W1/1.
ISSUEWISE FINDINGS ISSUE NO. I & II Whether the plaintiff is entitled for relief of permanent injunction as prayed in the plaint? OPP and Whether the plaintiff is entitled for the relief of mandatory injunction as prayed in the plaint? OPP FINDINGS AND CONCLUSIONS
27. The burden to prove issue no. (i) and issue no. (ii) was on the plaintiff. Both these issues are interconnected and therefore taken up together for adjudication.
Suit No. 1481/2018 Page No. 21 of 41Meena Bhandari V. Joginder Singh Mehta According to the plaintiff, the area of the land under dispute is part and portion of a settled public street and thus the defendants No. 1 have no right to encroach upon it or to carry out unauthorized construction blocking one of the gate of the plaintiff's property which opens towards the area of land under dispute. In support of this issue plaintiff deposed as PW1 and placed reliance on ExPW1/3, which is the certified copy of the deed of conveyance dated 03/06/1958 and Ex PW1/4, which is the lay out plan of the area attached with the conveyance deed dated 03/06/1958.
28. PW1 deposed that there is a deed of conveyance dated 03/06/1958, having registration no. 2918 in Additional Book No. 1, Volume no. 426 on pages 70 to 85 registered on 20/6/1958 in the office of Sub Registrar-I, New Delhi between Pandit Krishna Prasad Bhargava and Shri Madan Lal Chaddha, Shri Kishan Lal Chaddha, Shri Kedar Nath Chaddha and Smt. Leelawati by virtue of which said Pandit Krishna Prasad Bhargava had transferred the land of 39 Plots (from Plot no. 53 to 91) situated in Glaheri Bagh Scheme, Sabzi Mandi, Delhi measuring 3886 sq. yards in this area to said Shri Madan Lal Chaddha and others. Along with said conveyance deed dated 03/06/1958 a lay out plan of the area is also attached which is Ex. PW1/4 and in the said lay out plan the street in question has been fully marked and delineated.
29. Plaintiff has also relied upon Ex PW1/2, copy of sale deed dated 11/02/2008 having registration no. 856 in Additional Book no. 1, volume no. 2437 on pages 52 to 64 registered on 11/02/2008 in the office of Sub Register -I, Suit No. 1481/2018 Page No. 22 of 41 Meena Bhandari V. Joginder Singh Mehta New Delhi by virtue of which plot of land ad-measuring 147.482 square yards (equal to 123.29 square meters) bearing no. 53, (having 2 side open) situated in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi 11007, which was purchased by the plaintiff same from Smt. Mohini Mehta, wife of the defendant no. 1. On page no.3 of the Ex. PW1/2, the boundaries of the land purchased by the plaintiff are mentioned as under:-
North: Others property No.22/4 Shakti Nagar, Delhi. South: Plot No. 7306 East: Others property built on Plot No. 54. West: Park
30. Plaintiff in her cross-examination admitted that in Ex. PW1/2, it has been mentioned that on the North side of my plot there is other property bearing no.22/4, Shakti Nagar, Delhi and on Southern side, there is plot no.7306, however PW1 claimed that her property is still two side open as the plot no. 7306 is a road.
31. The plaintiff has place on record Ex. PW1/1, lay out plan of the area. PW1 in her cross examination has stated that PW1/1 was prepared by her counsel after seeing the same form the document i.e. layout plan annexed with the registry. There are contradictions in the statement of PW1 as during her cross examination, the witness at one point admits that a site plan was attached with the sale deed however then the witness state that she does not remember whether any site plan was attached with the original sale deed. In Ex. PW1/2, the area of plot No.53 owned by the plaintiff is shown to be 147.482 sq yards (equal to 123.29 Suit No. 1481/2018 Page No. 23 of 41 Meena Bhandari V. Joginder Singh Mehta Sq. Mtr.), whereas in Ex. PW1/1, the area of plot no. 53 is shown to be 110 square yards. In Ex. PW1/2, it is shown that plot no.53 owned by the plaintiff is bounded by Plot No. 7306 in the south, whereas in the Ex. PW1/1, a street/road has been shown. Both these facts show that Ex.
PW1/1 is itself contradictory to the Ex. PW1/2, which governs the rights of the plaintiff qua suit land. PW1 has further admitted in her cross examination that defendant no.1 is paying house tax to MCD in respect of portion shown as red in site plan Ex. PW1/1.
32. On the strength of site plan Ex. PW1/4 and conveyance deed Ex. PW1/3, the plaintiff has contended that street shown in red color in the site plan Ex. PW1/1 is public street even prior to 1958 and therefore defendant no.1 has no right to encroach upon the same and carry out unauthorized constructions. The site plan Ex. PW1/4 attached with Ex. PW1/3 shows that the street shown in red color in the site plan Ex. PW1/1 is a public street. Defendants had vehemently contested this claim of the Plaintiff. Defendant No.1 has placed reliance on the judgment passed by the Hon'ble High Court of Punjab and Haryana in Joginder Pal Vs Joginder Singh; 2016 SCC OnLine P&H 12339, wherein the Hon'ble High Court held as under:-
'14. The aforesaid well reasoned findings do not suffer from any legal infirmity. Learned senior counsel for the appellants has laid the much stress on the recitals of the sale deed dated 15.03.1980 (copy Ex.PY) vide which defendant-Swaran Singh has sold the plot measuring north-south 57 feet and east-west 64 feet to plaintiff no. 2- Ram Murti. No doubt, in this sale deed the passage has been shown on the southern side of the said plot. But, Suit No. 1481/2018 Page No. 24 of 41 Meena Bhandari V. Joginder Singh Mehta mere recitals in the sale deed cannot establish the existence of the passage. The said recitals has to be corroborated from other cogent, convincing and reliable evidence. To support this view reference can be made to case Mohan Singh v. Nirmal Singh 1971 PLJ 27. In case Smt. Joginder Kaur v. Amrik Singh 2009 (4) R.C.R (Civil) 82, this Court again reiterated the legal position that merely on the basis of recitals in the document i.e. agreement, the possession cannot be said to be proved to be delivered. The Hon'ble Himachal Pradesh High Court in case Prem Lal v. Bhagdei 2014 (sup) Him. L.R. 2017 has also laid down that mere recitals in the agreement to sell that possession of the suit property has been delivered at the time of its execution by vendor to the vendee was of no importance nor have any probative force. Thus, mere recitals in the sale deed Ex.PY with respect to the passage on the southern side of the plot sold by defendant to appellant-plaintiff no. 2-Ram Murti is not sufficient to establish the existence thereof.'
33. Defendant no.1 deposed as DW1. DW1 deposed that plaintiff has no right to open any gate towards the side of the suit property i.e. H.No. 7306, Prem Nagar, Delhi. DW1 further deposed that plaintiff has suppressed the fact that property in dispute is in actual physical possession of the defendant no.1 and that the property in dispute is covered by iron grills as well as gate and a submersible pump is also installed in the property. DW1 deposed that he is owner of the property in dispute by virtue of Mark A (copy of registered conveyance deed dated 31/05/1960) executed by rehabilitation department.
34. DW1 further deposed that in the year 1960, he filed a suit no. 106/1960 before Ld. Sub Judge (First Class), Delhi against Defendant no.2 and the appellate court passed a decree in favor of the Defendant no.1 declaring that the defendant no.1 is the owner in possession of the suit property. DW1 further deposed that the Executing Suit No. 1481/2018 Page No. 25 of 41 Meena Bhandari V. Joginder Singh Mehta Court Ld. Sub Judge in terms of the judgment and decree passed by the Appellate Court directed the MCD vide order dated 04.12.1963 to reconstruct the premises in the same condition in which it was at the time of demolition. DW1 relied upon Mark B (copy of order dated 04.12.1963), Ex. DW1/11 (copy of judicial record), Ex. DW1/12 (Colly)(Application for certified copies and report therein) and Ex.DW1/13(Copy of reply of ID No. 976 dated 17/02/2012). Ex. DW1/12 shows that Defendant No.1 has also applied for the certified copy of orders passed in the Civil Appeal; however the report shows that the record has been destroyed due to weeding out.
35. The DW1 has also relied upon Ex. DW1/15, which is certified copy of site plan dated 19/05/1960. The Ex. DW1/15 is the certified copy of site plan dated 19/05/1960 of plot no. 7306, which is the subject matter of dispute between the parties issued by the Land and Building Department. The Ex.DW1/15 shows that the area of land under dispute is Plot No.7306 as claimed by Defendant No.1.
36. DW1 has also relied upon Ex. DW1/1 (Colly), which are the copies of payment of House Tax and notices. Even PW1 has admitted in her cross-examination that the Defendant no.1 has been paying the house tax in respect of plot no. 7306.
37. D2W1 also verified the House Tax receipts, however in the cross-examination dated 26.03.2019 the witness has referred to House tax receipts as Ex. D5/W1/1 instead of Ex. DW1/1. The confusion might has prevailed Suit No. 1481/2018 Page No. 26 of 41 Meena Bhandari V. Joginder Singh Mehta due to the fact that the present suit is tried along with another suit instituted by the plaintiff in which Defendant no.1 herein is arrayed as Defendant no.5.
38. DW2, UDC, Evacuee Property Cell, Land & Building Department deposed as a summoned witness and produce Ex. DW2/1 (Site plan), Ex. DW2/2 (certified copy of the letter dated 02.06.1960), Ex. DW2/3 (Appendix XXIV i.e. format of deed of conveyance) and Ex. DW2/4 (Copy of notification dated 22.04.1952) from the original file pertaining to property no. XII/8040-44 (New no. 7306), Prem Nagar, Subzi Mandi, Delhi. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 show that the property in dispute was declared as evacuee property and was transferred to Defendant No.1 under Displaced persons (Rehabilitation & Compensation) Act, 1954. The witness in his cross-examined by the Counsel for plaintiff maintained that the property is notified as evacuee property as per notification Ex. DW2/4.
39. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 are more than fifty years old and section 90 of the Indian Evidence Act lays down that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Suit No. 1481/2018 Page No. 27 of 41Meena Bhandari V. Joginder Singh Mehta
40. Furthermore as Ex. DW2/1, DW2/2, DW2/3 and DW2/4 are more than fifty year old and there is a statutory presumption in favor of genuineness of these documents, which the plaintiff has failed to rebut. These Exhibits shows that the property was was declared as evacuee property and was later on transferred to defendant no.1. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 show the existence of a residential property in place of street as shown in red color in the site plan Ex. PW1/1. As rightly contended by Defendant no.1, mere recitals in the Ex.PW1/3 or site plan Ex.PW1/4 attached with Ex.PW1/3 does not prove the fact that street shown in red color in the site plan Ex. PW1/1 was public street even prior to 1958. More so when the Plaintiff's own right is governed by the Ex. PW1/2, wherein it is shown that plot no. 53 is bounded by plot no. 7306 on the south.
41. Plaintiff in her cross-examination admitted that site plan Ex. PW1/1 was prepared by her advocate after seeing the same from the document i.e. layout plan annexed with the registry. In the present suit, the Ex. PW1/2 does not contain the site plan. Plaintiff has also stated that she has made construction on plot no.53 after sanctioning of the plan, however even the sanctioned plan of property no.53 is not placed on record. The Hon'ble Delhi High Court in Kanak Jain v. Chakresh Kumar Jain, 2019 SCC OnLine Del 8271 has held that if a party withholds important documents in his possession which can throw light on the facts at issue, the Court may draw an adverse inference, even if the burden of proof does not lie on the party. In the Suit No. 1481/2018 Page No. 28 of 41 Meena Bhandari V. Joginder Singh Mehta present case, even the burden of proof to show that disputed property is street is on the plaintiff.
42. In the present case, Ex. PW1/2 relied upon by the Plaintiff herself shows that the property of the plaintiff is bounded by plot no. 7306 on the south. Furthermore careful perusal of Ex. DW1/PY, which is the sanctioned site plan by the zonal building committee, MCD also shows a plot of land exists instead of a street as shown in red color in the site plan Ex. DW1/1.
43. The plaintiff has failed to show that street shown in red color in the site plan Ex. PW1/1 was public street even prior to 1958. Even from the Annexure PW1/2, relied upon by the Plaintiff, it is evident that the property of the plaintiff is bounded by plot no. 7306 on the south. Plaintiff has also withheld the site plan attached with the Ex. PW1/2 and the sanctioned plan of the property No. 53 mentioned in the plaint and filed a site plan Ex. PW1/1 prepared by the Advocate. Further Ex. DW2/1, DW2/2, DW2/3 and DW2/4 are more than fifty year old and there is a presumption in favor of genuineness of these documents, which the plaintiff has failed to rebut. These Exhibits shows that the property was declared as evacuee property. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 and Ex. DW1/PY show the existence of a residential property/Plot of land owned by defendant no.1 instead of street as claimed by the Plaintiff. The Plaintiff has thus failed to prove that he is entitled to permanent and mandatory injunction.
Suit No. 1481/2018 Page No. 29 of 41Meena Bhandari V. Joginder Singh Mehta
44. Accordingly, in view of the discussion made hereinabove, the issue no.(i) and issue no.(ii) are decided against the plaintiff and in favor of defendants. ISSUE No. (III)
(iii)Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-2 FINDINGS & CONCLUSION.
The onus to prove this issue was on defendant no.2, however defendant no.2 has led no evidence in this regard.
45. Plaintiff deposed as PW1 and in her cross-
examination, she has admitted that no notice under section 477/478 of the DMC Act was served upon defendant no.2. Ld. Counsel for the Plaintiff has place reliance on the judgment passed by the Hon'ble High Court in Har Kishan Lal & Ors. Vs Jain Textiles Traders; 53(1994) DLT 80, which was also a case pertaining to suit for injunction and in addition to mandatory injunction for removal of the steel racks, urgent relief of permanent injunction was also sought to restrain the defendants from placing any obstruction in the court yard. It was observed that there was likelihood of more injury being caused to the rights of the plaintiff, in such a case prior notice is not liable to be given to the Corporation for bringing a suit for injunction and accordingly, it was held that such a suit was maintainable without serving any prior notice on the Corporation, under section 478 of DMC Act. The relevant paras of this judgment are hereby reproduced as under:-
Suit No. 1481/2018 Page No. 30 of 41Meena Bhandari V. Joginder Singh Mehta (8) As far as Section 478 of The Delhi Municipal Corporation Act is concerned, the said Section contemplates giving of prior notice for bringing a suit against Corporation or its employees if the suit complained of any act performed by Corporation or its employees. The very wording of the Section does not contemplate giving of a notice to the Corporation if the relief sought against the Corporation is for omission of the Corporation to perform its statutory duties.
46. Be as it may, in case relief sought in the suit is of injunction and which does not brook any delay inasmuch as if injunction is not obtained, there was likelihood of more injury being caused to the rights of the plaintiff, in such a case prior notice is not liable to be given to the Corporation for bringing a suit for injunction.
47. In the present case, not only the relief of mandatory injunction has been sought, an urgent relief of permanent injunction is also sought to restrain the defendant no.1 from encroaching upon and making any kind of construction on the disputed property as mentioned in Annexure PW1/1. Such a suit could not brook any delay and thus, such a suit, in my view, is maintainable without serving any prior notice on the Corporation under Section 478 of the Delhi Municipal Corporation Act. Thus, for the above reasons and fortified by above judgment, it is held that the suit of the plaintiffs is not bad for want of notice under Section 477/ 478 of the DMC Act and issue under consideration is decided in favour of the plaintiffs and against the defendant no.2.
ISSUE NO.IV
(iv) Whether the plaintiff has concealed the material facts as disclosed by defendant no. 1 in Suit No. 1481/2018 Page No. 31 of 41 Meena Bhandari V. Joginder Singh Mehta para no. 3 of the preliminary objections of the WS? OPD-1 FINDINGS & CONCLUSION.
48. In para no.3 of the preliminary objection of the WS, the defendant has contended that plaintiff has suppressed material facts. Para 3 of preliminary objection is reproduced as under:-
3.That Plaintiff has suppressed the fact that suit property is in actual physical possession of answering defendant even before the purchase of property by predecessor of Plaintiff.
Plaintiff has suppressed the fact that property in dispute bears the municipal no. 7306, Prem Nagar, Delhi. Plaintiff has also suppressed the fact that property in dispute is assessed to House tax and answering defendant is paying House tax regularly. Plaintiff has suppressed the fact that property in dispute is covered by iron grills as well as gate. Plaintiff has also suppressed the fact that there is a submersible pump installed in the property in dispute for a very long time. Plaintiff has also suppressed the fact that there was construction on property in dispute. Plaintiff has also suppressed the fact that property in dispute was sold by rehabilitation Department through registered sale deed dated 31/05/1960 by the president of India. Plaintiff has also suppressed the fact that in the year 1960 answering defendant filed a suit no. 106/1960 before Ld. Sub Judge (First Class), Delhi against Defendant no. 2. Plaintiff has also suppressed the fact that decree was passed by Appellate Court in favor of the answering defendant declaring that answering defendant is owner in possession of property in dispute and Defendant no. 2 i.e. MCD was restrained from interfering in the possession of the answering defendant, Plaintiff has also suppressed the fact that answering defendant filed an Execution Application against Defendant no. 2 i.e. MCD. Plaintiff has also suppressed the fact that Ld. Judge Sh. P.S. Singhla: Sub Judge First Class), Delhi directed MCD i.e. Defendant no. 2 vide order dated 04/12/1963 stating therein "I give 90 days time to MCD from today to reconstruct the premises in the same condition in which it was at the time of demolition failing which the decree holder shall be entitled to reconstruct the premises in the same position and recover the expenses from the corporation". Plaintiff has also suppressed the fact that Suit No. 1481/2018 Page No. 32 of 41 Meena Bhandari V. Joginder Singh Mehta relevant record was shown to the police in the presence of the husband of Plaintiff as well as of Plaintiff. Plaintiff has not come to the Court with clean hands. Plaintiff has suppressed material facts, only on this ground the suit of the Plaintiff may kindly be dismissed with special costs.
49. Defendant no.1 deposed as DW1 and reiterated all the facts mentioned in para no.3 of the preliminary objection, however except for the self serving testimony of the Defendant no.1, no evidence is led by him on the aspect whether the plaintiff had any prior knowledge of the suit filed by the Defendant no.1 agaisnt Defendant no.2 or property in dispute was sold by rehabilitation Department through registered sale deed dated 31/05/1960 by the president of India.
50. From the evidence led by the parties, it is clear that the plaintiff had prior knowledge of the fact that property in dispute bears the municipal no. 7306, Prem Nagar, Delhi. Plaintiff in her cross-examination admitted that in Ex. PW1/2, it has been mentioned that on the North side of my plot there is other property bearing no.22/4, Shakti Nagar, Delhi and on Southern side, there is plot no.7306.
51. PW1 has relied upon Ex PW1/2, which is the copy of sale deed dated 11/02/2008 having registration no. 856 in Additional Book no. 1, volume no. 2437 on pages 52 to 64 registered on 11/02/2008 in the office of Sub Register
-I, New Delhi by virtue of which plot of land ad-measuring 147.482 square yards (equal to 123.29 square meters) bearing no. 53, (having 2 side open) situated in Glaheri Bagh Scheme, Prem Nagar, Sabzi Mandi, Delhi 11007, which was purchased by the plaintiff same from Smt. Suit No. 1481/2018 Page No. 33 of 41 Meena Bhandari V. Joginder Singh Mehta Mohini Mehta, wife of the defendant no. 1. On page no.3 of the Ex. PW1/2, the boundaries of the land purchased by the plaintiff are mentioned as under:-
North: Others property No.22/4 Shakti Nagar, Delhi. South: Plot No. 7306 East: Others property built on Plot No. 54. West: Park Thus this fact was well within the knowledge of the plaintiff that property in dispute bears the municipal no. 7306, Prem Nagar, Delhi, however she failed to disclose this fact in the plaint.
52. Similarly the plaintiff has herself admitted in her cross-examination that the Defendant no.1 has been paying house tax in respect of plot no. 7306.
53. Defendant no.2 deposed as D2W1 and testified that no recent construction or encroachment has been carried out by the defendant no.1 but the alleged portion is not being used as a road and it is enclosed by temporary/semi pucca structure. Ex. PW1/2 shows that plot no. 7306 has been shown in existence even on the date of execution of sale deed. Similarly DW1/1 Colly (House Tax receipts and notices) shows that defendant no. 1 had been in actual physical possession of the property even before the purchase of property by predecessor of Plaintiff.
Accordingly, in view of the discussion made hereinabove, the issue no.(iv) is decided against the plaintiff and in favor of defendants.
Suit No. 1481/2018 Page No. 34 of 41Meena Bhandari V. Joginder Singh Mehta ISSUE NO. V
(v) Whether the plaintiff has no locus standi to file the present suit in view of preliminary objection no. 12 of WS of defendant no. 1? OPD-
1FINDINGS AND CONCLUSIONS
54. The burden to prove this issue was on defendant no.1. Defendant no.1 has contended in preliminary objection no.12 of WS that the property in dispute is in ownership of the defendant and this fact has become res judicata between the parties as per decision in suit no. 106/1960.
55. DW1 deposed that in the year 1960, he filed a suit no. 106/1960 before Ld. Sub Judge (First Class), Delhi against Defendant no.2 and the appellate court passed a decree in favor of the Defendant no.1 declaring that the defendant no.1 is the owner in possession of the suit property. DW1 further deposed that the Executing Court Ld. Sub Judge in terms of the judgment and decree passed by the Appellate Court directed the MCD vide order dated 04.12.1963 to reconstruct the premises in the same condition in which it was at the time of demolition. DW1 relied upon Mark B (copy of order dated 04.12.1963), Ex. DW1/11 (copy of judicial record), Ex. DW1/12 (Colly) (Application for certified copies and report therein) and Ex.DW1/13(Copy of reply of ID No. 976 dated 17/02/2012). Ex. DW1/12 shows that Defendant No.1 has also applied for the certified copy of orders passed in the Suit No. 1481/2018 Page No. 35 of 41 Meena Bhandari V. Joginder Singh Mehta Civil Appeal; however the report shows that the record has been destroyed due to weeding out.
56. The burden to prove this issue was on defendant no.1. Neither the pleadings in the earlier suit have been placed on record nor the judgment passed by the Ld. Trial Court and Ld. Appellate Court been placed on record. The only document placed on record by the Defendant no.5 is mark B, which is the copy of the order dated 04.12.1963 passed by the Executing Court. It is not clear from mark B, as to what were the issues, which were directly and substantially in issue in the earlier suit filed by the Defendant No.5. Further the plaintiff was also not a party to the proceedings in the earlier suit no. 106/1960. Accordingly, in view of the discussion made hereinabove, the issue no. v is decided against the defendants and in favor of plaintiff.
ISSUE NO. VI & VII
(vi) Whether defendant no. 1/ counter claimant is entitled for the relief of permanent injunction as prayed in the counter claim? OPD-1 and
(vii) Whether defendant no. 1/counter claimant is entitled for the relief of mandatory injunction as prayed in the counter claim? OPD-1 FINDINGS AND CONCLUSIONS The onus to prove issue no. (vi) and (vii) was on defendant.
Suit No. 1481/2018 Page No. 36 of 41Meena Bhandari V. Joginder Singh Mehta
57. Defendant no.1 deposed as DW1. DW1 deposed that plaintiff has no right to open any gate towards the side of the suit property i.e. H.No. 7306, Prem Nagar, Delhi. DW1 further deposed that plaintiff has suppressed the fact that property in dispute is in actual physical possession of the defendant no.1 and that the property in dispute is covered by iron grills as well as gate and a submersible pump is also installed in the property. DW1 deposed that he is owner of the property in dispute by virtue of Mark A (copy of registered conveyance deed dated 31/05/1960) executed by rehabilitation department.
58. DW1 further deposed that in the year 1960, he filed a suit no. 106/1960 before Ld. Sub Judge (First Class), Delhi against Defendant no.2 and the appellate court passed a decree in favor of the Defendant no.1 declaring that the defendant no.1 is the owner in possession of the suit property. DW1 further deposed that the Executing Court Ld. Sub Judge in terms of the judgment and decree passed by the Appellate Court directed the MCD vide order dated 04.12.1963 to reconstruct the premises in the same condition in which it was at the time of demolition. DW1 relied upon Mark B (copy of order dated 04.12.1963), Ex. DW1/11 (copy of judicial record), Ex. DW1/12 (Colly)(Application for certified copies and report therein) and Ex.DW1/13(Copy of reply of ID No. 976 dated 17/02/2012). Ex. DW1/12 shows that Defendant No.1 has also applied for the certified copy of orders passed in the Civil Appeal; however the report shows that the record has been destroyed due to weeding out.
Suit No. 1481/2018 Page No. 37 of 41Meena Bhandari V. Joginder Singh Mehta
59. The DW1 has also relied upon Ex. DW1/15, which is certified copy of site plan dated 19/05/1960. The Ex. DW1/15 is the certified copy of site plan dated 19/05/1960 of plot no. 7306, which is the subject matter of dispute between the parties issued by the Land and Building Department. The Ex.DW1/15 shows that the area of land under dispute is Plot No.7306 as claimed by Defendant No.1.
60. DW1 has also relied upon Ex. DW1/1 (Colly), which are the copies of payment of House Tax and notices. Even PW1 has admitted in her cross-examination that the Defendant no.1 has been paying the house tax in respect of plot no. 7306.
61. D2W1 also verified the House Tax receipts, however in the cross-examination dated 26.03.2019 the witness has referred to House tax receipts as Ex. D5/W1/1 instead of Ex. DW1/1. The confusion might has prevailed due to the fact that the present suit is tried along with another suit instituted by the plaintiff in which Defendant no.1 herein is arrayed as Defendant no.5.
62. DW2, UDC, Evacuee Property Cell, Land & Building Department deposed as a summoned witness and produce Ex. DW2/1 (Site plan), Ex. DW2/2 (certified copy of the letter dated 02.06.1960), Ex. DW2/3 (Appendix XXIV i.e. format of deed of conveyance) and Ex. DW2/4 (Copy of notification dated 22.04.1952) from the original file pertaining to property no. XII/8040-44 (New no. 7306), Prem Nagar, Subzi Mandi, Delhi. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 show that the property in Suit No. 1481/2018 Page No. 38 of 41 Meena Bhandari V. Joginder Singh Mehta dispute was declared as evacuee property and was transferred to Defendant No.1 under Displaced persons (Rehabilitation & Compensation) Act, 1954. The witness in his cross-examined by the Counsel for plaintiff maintained that the property is notified evacuee property as per notification Ex. DW2/4.
63. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 are more than fifty years old and section 90 of the Indian Evidence Act lays down that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
64. The Ex. DW2/1, DW2/2, DW2/3 and DW2/4 are more than fifty year old and there is a statutory presumption in favor of genuineness of these documents, which the plaintiff has failed to rebut. These Exhibits shows that the property was was declared as evacuee property and was later on transferred to defendant no.1. Ex. DW2/1, DW2/2, DW2/3 and DW2/4 show the existence of a plot of land in place of street as shown by the plaintiff in red color in the site plan Ex. PW1/1. As rightly contended by Defendant no.1, mere recitals in the Ex.PW1/3 or site plan Ex.PW1/4 attached with Ex.PW1/3 does not prove the fact that street shown in red color in the Suit No. 1481/2018 Page No. 39 of 41 Meena Bhandari V. Joginder Singh Mehta site plan Ex. PW1/1 was public street even prior to 1958. More so when the Plaintiff's own right is governed by the Ex. PW1/2, wherein it is shown that plot no. 53 is bounded by plot no. 7306 on the south. Thus, defendant no. 1 has been able to show that he is the owner of the plot no. 7306 as shown in the site plan Ex.DW1/5. It is also admitted fact that plaintiff/ respondent had opened a gate and constructed stairs towards plot no. 7306 owned by the defendant no. 1. DW-1 relied upon the site plan which is Ex.DW1/5 and the plaintiff during cross-examination was confronted with the same and she admitted the locations of House no. 53, Plot no. 7306, House no. 7307 as shown in Ex.DW1/5 are correct. She also admitted park and gali of Shakti Nagar shown in Ex.DW1/5 are also correct. Ex.DW1/5 was exhibited as Ex.PW1/D4.
65. Accordingly, in view of the discussion made hereinabove, the issue no. vi and vii is decided against the plaintiff and in favor of defendant no.1/counter claimant.
66. Since the issue no. (i), (ii) and (iv) are decided against the plaintiff, he is not entitled to any relief and the suit of the plaintiff is liable to be dismissed. As the defendant no. 1/ counter-claimant has successfully proved issue no. (vi) and (vii), counter-claim is allowed.
RELIEF
67. From the discussions, as adumbrated hereinabove, I hereby pass the following Suit No. 1481/2018 Page No. 40 of 41 Meena Bhandari V. Joginder Singh Mehta
-::FINAL ORDER::-
(a) The Suit filed by the plaintiff is hereby dismissed.
(b) The counter claim filed by the defendant no. 1 is decreed in the following terms:-
(i) A decree of mandatory injunction is passed in favour of the counter-claimant/ defendant no. 1 directing the plaintiff / respondent to remove stairs at her cost constructed in the plot no. 7306, Prem Nagar, Delhi and remove / close the gate opened towards the plot no.
7306 owned by the defendant no. 1/ counter-claimant as shown in red color in Ex.DW1/5.
(ii) A decree of Permanent Injunction in favour of counter-claimant/ defendant and against the non- counter-claimant/ plaintiff restraining non-counter- claimant/ plaintiff from entering plot no. 7306 or interfering in any manner in possession of the counter- claimant/ defendant no. 1 in the suit property i.e. House no. 7306, Prem Nagar, Delhi
(c) The parties shall bear their own respective costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced through video conferencing on this 11th Day of January, 2022.
(ALOK SHUKLA) ADJ-07 (Central) Tis Hazari Courts, Delhi Suit No. 1481/2018 Page No. 41 of 41