Delhi District Court
Smt. Mira Saxena vs Smt. Bimla Kapoor on 3 May, 2011
IN THE COURT OF SH. HARJYOT SINGH BHALLA :
CIVIL JUDGE1 ,SOUTH DISTRICT ,NEW DELHI
Suit No. 291/2010
Case ID No.02406C0403312010.
Smt. Mira Saxena,
W/o Dr. R. K. Saxena,
R/o K15, Green Park Ext.,
New Delhi. .................plaintiff
Versus
1. Smt. Bimla Kapoor,
R/o K15, Second Floor,
Green Park Ext.
New Delhi.
2. Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi(through its commissioner)
3. Sh. Pradeep Sarna,
S/o late Sh. B. R. Sarna,
R/o Flat no. K15/301,
Second Floor, Green Park Ext.,
Mira Saxena Vs. Smt. Bimla Kapoor 1 of 15
Suit no. 291/2010
New Delhi110016. ...............defendants
Date of Institution : 09.08.1995
Date of reserving the Order : 21.02.2011
Date of pronouncement : 03.05.2011
JUDGMENT :
1 By this judgment I shall dispose off the suit for permanent and mandatory injunction filed by the plaintiff. Brief facts as called out from pleadings:
2 Plaintiff claims to be the owner of flat on the first floor of property bearing no. K15/201, Green Park Extension, New Delhi, vide a registered sale deed dt. 9.9.1994. The portion in plaintiff's possession has been shown in yellow colour in the site plan. It is the case of the plaintiff that defendant no. 1 is owner of the second floor of flat on plot no. K15 Green Park, New Delhi, having two rooms, kitchen, toilet, WC passage , open terrace. The open courtyard shown as "ABCD" in the site plan is meant for common use of plaintiff and defendant no. 1. The building is stated to be an old one which cannot bear the burden of any addition and alteration or unauthorized construction.
3 It is the case of the plaintiff that since 31.7.95 defendant
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no. 1 has been constantly raising illegal and unauthorized
construction on the second floor. Plaintiff made several requests for stopping the said construction, the building being in a dilapidated condition. Plaintiff also made several complaints to defendant no. 1 and 2 but to no avail. It has been stated that there has been collusion between defendant no. 1 and 2.
4 Plaintiff has further averred that defendant no. 1 unauthorizedly and illegally constructed one room in the open terrace shown in red in the site plan bearing mark EPGH. Further the defendant no. 1 has raised a partition wall also shown in red after removal of wall mark X and Y and created a bigger room by adjoining the unauthorized room. The defendant no. 1 has also broken the wall at various places and constructed three windows marked as IJK and door marked L and the same open towards the terrace of the plaintiff.
The privacy of the plaintiff is getting disturbed. The unauthorized construction is stated to be ongoing.
5 It is plaintiff's case that on 4.8.95 plaintiff once again requested defendant no. 1 to stop raising illegal and unauthorized construction. Instead of listening to the plaintiff the defendant no. 1 threatened that she would construct a room in the common open Mira Saxena Vs. Smt. Bimla Kapoor 3 of 15 Suit no. 291/2010 court and construct a balcony on the sunshade of the plaintiff in spite of the fact that the sunshade cannot be used as a balcony nor can the same bear the load of a balcony. The proposed site has been shown in colour green in the site plan. On 4.8.95 plaintiff again made a complaint to defendant no. 2 but no action has been taken. 6 It is the case of the plaintiff that the defendant no. 1 has no legal right to make addition, alteration or to raise unauthorized construction on the second floor. The cause of action arose in favour of plaintiff and against defendant no. 1 on 31.7.95 when the defendant started raising unauthorized construction on second floor. It further arose on 4.8.95 when defendant no. 1 threatened to raise construction in the common open court and also threatened to construct a balcony on the sunshade. Cause of action again arose when complaints were made to defendant no. 2 but they did not take any action and also on 5.8.05 when another complaint was made. During the pendency of the suit the property was sold to the defendant no. 3 who was impleaded as a party defendant and amended plaint was filed. Plaintiff has prayed for two reliefs: a) permanent injunction against the defendant no. 1 and 3 restraining them from raising any unauthorized and illegal construction in the common open court and on the sunshade; as well Mira Saxena Vs. Smt. Bimla Kapoor 4 of 15 Suit no. 291/2010 as b) mandatory injunction against defendant no. 2 directing it to put the second floor flat no. K15 in its original position by closing the windows and door and demolishing the construction carried out. 7 Defendant no. 2 MCD has filed its WS. The case of the MCD is that statutory notice has not been served upon the MCD. MCD has further stated on merits that action against the suit property has already been taken vide a file No. 140/B/UC/SZ/97 dt. 22.8.97. FIR no. 175907 dt. 22.8.1997 has been registered and unauthorized construction of deviations against sanctioned building plan has been booked. Show cause no. 142557 dt. 22.8.1997 had been issued and served upon Prakash Chand Jain as per law. It has been stated that further action has been taken as per law. It has been stated that the building plan was sanctioned in favour of Prakash Chand Jain on 27.5.1978 and Bimla Kapoor is not the owner. It has been categorically stated that deviations against sanctioned plan at basement , ground floor, first floor and second floor stands booked. The suit is therefore, without cause of action.
8 The defendant no. 3 was impleaded as a defendant on an application u/O 1 rule 10 of CPC. Defendant no. 3 has also filed his WS. The stand of the defendant no. 3 is that the defendant no. 1 sold Mira Saxena Vs. Smt. Bimla Kapoor 5 of 15 Suit no. 291/2010 the second floor flat vide a sale deed dt. 8.2.1996 to defendant no. 3. This fact was within the knowledge of the plaintiff. It is stated that defendant no. 3 has not raised any unauthorized construction. Without prejudice defendant no. 3 deposited compoundable charges with MCD and the compoundable items became legal. It has been submitted that projection of up to two feet is allowed under building bye laws and the projections exist in the shape of sunshades. The plaintiff has come with uncleaned hands as plaintiff is herself guilty of unauthorized construction on the first floor. Plaintiff has raised unauthorized construction by projecting a 7 feet balcony on the entire driveway at the first floor level. The MCD has not taken any action and there is collusion between plaintiff and defendant no. 2. It has been stated that site plan of the property purchased by the defendant no. 3 was registered with the sale documents. It has also been denied that the defendant no. 1 was raising any illegal unauthorized construction. The averments in the plaint have been denied. The dilapidated condition of the building, as alleged in the plaint, is denied. The existence of open courtyard, any unauthorized construction as alleged in the plaint and invasion of privacy of plaintiff have been denied.
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9 Plaintiff has filed her replications. The avements in the
plaint have been reiterated. Qua the WS of defendant no. 2 the
plaintiff has stated that no action has been taken subsequent to the booking of the property as alleged. Qua the WS of defendant no. 3, it has been stated in the replication that the sale alleged by Defendant no. 3 in his favour is after the filing of the suit and therefore, suit is not bad for misjoinder of parties, and that the defendant no. 3 has been misleading the court.
10 On the basis of the pleadings of the parties following issues were framed.
1) Whether the plaintiff is entitled to relief of permanent injunction as claimed?OPP.
2) Whether the plaintiff is entitled to relief of mandatory injunction as claimed?OPP.
3) Relief. 11 Matter was listed for evidence. Defendant no. 1 was
proceeded with exparte vide a order dt. 20.7.2004. MCD was directed to file a status report on 14.11.2007. The same was filed on 19.4.2008. The plaintiff got herself examined as a witness. On behalf of defendant no. 3 Mr. Pradeep Sarna was examined. The defendant Mira Saxena Vs. Smt. Bimla Kapoor 7 of 15 Suit no. 291/2010 no. 2 did not examine any witness on its behalf. Counsel for plaintiff filed his written arguments. The matter got transferred to this court at the stage of final arguments. Written arguments were filed by defendant no. 3 and arguments were heard on behalf of plaintiff as well as defendant no. 2 and 3.
12 My issuewise findings are as follows:
13 Issue no. 2. Whether the Plaintiff is entitled to mandatory injunction as claimed? The onus of proving this issue was on the plaintiff. The plaintiff has exhibited the photographs and negatives Ex. PW1/2 and Ex. PW1/2(A) to Ex. PW1/7 and Ex. PW1/7(F). The complaint made to the MCD on 5.8.1995 is Ex. PW1/8. The defendant no.3, on the other hand, examined himself as a witness. He exhibited the sale deed DW3/1, the copy of the site plan was being exhibited as DW3/2 but was objected to. Plaintiff has filed written submissions. He has submitted that suit was filed against the defendant no. 1 and 2 on 9.8.1995. However, the application Under Order 1 Rule 10 of CPC was filed by defendant no. 3 on 5.12.1997. The defendant no. 3 was impleaded on 1.2.2002. Defendant no. 1 has remained exparte after 20.7.2004. During the pendency MCD filed status report on 17.4.2008 and the plaintiff filed her reply thereto. It Mira Saxena Vs. Smt. Bimla Kapoor 8 of 15 Suit no. 291/2010 has been argued that the sale was made by defendant no. 1 in order to defeat the claim of the plaintiff. The defendant no. 3 filed the application under Order 1 Rule 10 on his own. It has been argued that defendant no. 3 has been taking defences for himself as well as on behalf of defendant no. 1. Reliance is placed on page 3 sub para IV of the impleadment application wherein the stand of the defendant no. 3 is that neither the said defendant nor defendant no. 1 raised any unauthorized construction. The defendant no. 3 has against stated, in reply to para 4 on merits in WS, that defendant no. 1 was not raising any illegal or unauthorized construction on the second floor. He submits that in his cross examination the defendant no. 3 admitted that he had not made any inquiries about the presence of any illegal or unauthorized construction in the flat at the time he purchased the same from defendant no. 1. Vide order dt. 257.2002 the defendant no. 3 was directed to produce and place on record the sanctioned plan of the second floor flat. However, the defendant no. 3 never complied with the said order and denied having sanctioned plan. This was the stand of the defendant no. 3 in reply to the application under Order 11 Rule 21. The version of the defendant no. 3 is therefore, unbelievable as he cannot say without looking at the sanctioned plan as to whether Mira Saxena Vs. Smt. Bimla Kapoor 9 of 15 Suit no. 291/2010 there are any deviation. Counsel has relied on the admission made by the defendant no. 3 that he has deposited the compounding charges with MCD on 28.5.2000. Counsel further relies on status report filed in 2008 by the MCD in which it has been stated that unauthorized construction is still present in the defendant no.3's property. The status report is silent on the aspect of compounding of the illegal construction. Counsel submits that the defendant no. 3 has admitted in his cross examination that one door and one window open the balcony of the plaintiff. Whereas the photographs filed by the plaintiff clearly show otherwise. Further the defendant no.3's stand in the cross examination that the plaintiff has covered the driveway and raised construction of two rooms and one bathroom is beyond the pleadings as pleadings nowhere refer to coverage of the driveway. The photographs filed by the plaintiff in the year 1995 also show that balcony was already covered at the time of filing of the suit. Therefore, defendant no. 3's version that the same was extended in the year 1998 is not believable. Plaintiff has relied upon the judgment of the Delhi High Court in Onkarnath Vs Ramnath Gupta & Others AIR 1985 Delhi 293 and Jagapada Mittra & Others Vs.Shibapada Mittra 1999 CCC 521(Orrisa) and Arya Vidhya Mandir Vs. Dr. Ram Mira Saxena Vs. Smt. Bimla Kapoor 10 of 15 Suit no. 291/2010 Sarup Agnihotri 1991 CCC 38 (P&H). The counsel for the plaintiff has relied on the cross examination of defendant no. 3 and more specifically the following portions thereof: "I did not make any inquiries about the illegal constructions from the owner of the said flat at the time of purchasing the flat. The defendant no. 1 never informed me about the pendency of this suit .......I cannot tell as to the original size of the balcony which was later extended up to 7 feet. The said balcony was extended in 1998..... later on I came to know of the illegal construction in my said flat. The illegal construction was in the shape of extended veranda on my second floor flat." 14 Defendant no. 3 has, on the other hand, filed his written submissions as well as addressed oral arguments. Defendant no. 3 has submitted that the site plan has not been proved by the plaintiff. It is further stated that para 5 of the plaint has not been proved and the unauthorized construction cannot be identified. The second prayer for grant of mandatory injunction is, therefore, clearly not grantable in the present case. He submits that the compounding fees was paid by the defendant no. 3 by way of prudence and relies on bye laws 6.4.1 and contends that no construction beyond the said bye law has been carried out. He submits that there is no common terrace as Mira Saxena Vs. Smt. Bimla Kapoor 11 of 15 Suit no. 291/2010 alleged. The plaintiff herself is guilty of raising unauthorized construction, privacy of the plaintiff has not been hampered and the site plan was registered with the defendant no. 3's sale deed and can be looked at. He further submits that defendant no. 2 MCD has booked the entire property including the portion of the plaintiff and not just that of the defendant no. 3. He submits that the plaintiff is also, therefore, not entitled to the relief of injunction. Counsel has relied upon the cross examination of the plaintiff to substantiate his above grounds. Counsel has relief on the cross examination dated 7.1.2005 more specifically the following portions. "I have no knowledge about the covered area of my first floor. I have sanctioned plan of the first floor........ I do not have sanctioned plan but only have the site plan of the first floor. I have kept the water tank on the bath room of first floor........there is a sunshade on the first floor. The Sunshade is on the door of the first floor which covers the entire first floor........ I do not know if there is sanction form MCD for the balcony stated above by me..... I have not seen sanctioned plan of the entire property in question."
15 The counsel further relies on the admission made by the plaintiff that "defendant no. 1 started construction of second floor in Mira Saxena Vs. Smt. Bimla Kapoor 12 of 15 Suit no. 291/2010 the year 1994" and the admission that defendant no. 3 might have shifted at the second floor in the year 1996.
16 The defendant no. 2 has not led any evidence and Defendant no.1 is exparte. The existence of unauthorized construction on the second floor stands proved. However, the plaintiff, in my view has not been able prove with any certainty the extent of unauthorized construction raised by defendant no. 1 or defendant no. 3. The fact is that the defendant no. 3 had purchased the property during the pendency of the suit. Even though the plaint was amended, no averment against defendant no. 3 except that he was a purchaser with notice has been made. However, the witness in the cross examination denied the suggestion that defendant no. 3 has not raised any construction after shifting on the second floor. The plaintiff has also admitted that the construction was started by defendant no.1 in the year 1994, whereas the suit has been filed in August 1995 with the averments that the defendant started raising construction on 31.7.1995. The fact that the construction began in July 1995 is belied by plaintiff's own admission that the construction started in the year 1994. That being the position, the plaintiff has failed to prove the case as alleged. The defendant has, on the other Mira Saxena Vs. Smt. Bimla Kapoor 13 of 15 Suit no. 291/2010 hand, proved on preponderance of probability that the plaintiff is herself owner of a property for which there is no sanctioned plan. The defendant has also been able to prove that the plaintiff has not seen any original sanctioned plan so as to be in a position to show what was the original position being referred to in prayer clause B. 17 Thus, in my view, the plaintiff has failed to prove that she is entitled to the mandatory injunction as prayed. 18 Issue No. 1:Whether the plaintiff is entitled to relief of permanent injunction as claimed? As far as the first relief is concerned, the same was directed against defendant no. 1 with reference to proposed construction of room and balcony as shown in green. It is an admitted position that the defendant no. 1 has already sold the property to defendant no.3 and therefore, the said relief cannot be granted against defendant no. 1 who has no interest left in the suit property. Since the prayer against defendant no.3 for permanent injunction is without any supporting averments to the effect that the defendant no. 3 had also extended similar threats for raising unauthorized construction, the prayer for permanent injunction cannot be granted against defendant no. 3. Needless to say that the above finding would not entitle the defendant no. 3 to raise Mira Saxena Vs. Smt. Bimla Kapoor 14 of 15 Suit no. 291/2010 any unauthorized construction and if so carried out, the plaintiff shall not be remediless.
19 There is yet another aspect. Failure to disclose the fact that the portion in which the plaintiff is residing is also having unauthorized construction, as an inference of its existence can safely be drawn keeping in view the evidence of plaintiff more specifically the cross examination on aspect of sanction plan and her failure to produce the same as well, also disentitles her from claiming the equitable relief of injunction. The issues are, therefore, decided against the plaintiff. The suit is accordingly dismissed. Parties are left to bear their own costs.
20 Decree sheet be drawn accordingly. File be consigned to record room.
Announced in the open Court Harjyot Singh Bhalla, dated 03.05.2011 Civil Judge1, South District, New Delhi.
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