Delhi District Court
Khwaja Rashid Ahmad vs Mushtaq Ali on 4 March, 2015
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, CENTRAL, TIS HAZARI COURT, DELHI
Suit no. 327/11
Unique ID No. 02401C0716022007
KHWAJA RASHID AHMAD
S/o Late Hakim Khwaja Bashir Ahmad
R/o 2670, Bada Satgraha
Mohalla Niyarian, Delhi- 110006
.....Plaintiffs
Versus
MUSHTAQ ALI
S/o Late Sh. Jamil Ahmad
R/o 2665/1, Bada Satgraha
Delhi- 110006
.....Defendant
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS
DATE OF FILING OF THE SUIT : 27.07.2007
DATE ON WHICH RESERVED
FOR JUDGMENT : 27.02.2015
DATE OF ORDER/JUDGMENT : 04.03.2015
JUDGMENT
1. The present suit has been filed by the plaintiff against the Suit. No. 327/11 Page No. 1 of 13 Khwaja Rashid Ahmed On 04th March, 2015 defendant for permanent and mandatory injunction.
2. The brief facts, as per the plaint, are that plaintiff is one of the co-owners/ co-landlords of property bearing 2665, Bada Satghara, Mohalla Niyarian, Delhi- 06 and earlier his father was the absolute owner and after his death, legal heirs became co- owners/ co- sharers.
3. It is stated that originally Sh. Jamil Ahmed i.e. father of defendant was a tenant in the said property in respect of portion consisting of two dalan, two kotheries, open courtyard at ground floor as shown in blue color in the site plan for residential purposes only at a monthly rent of Rs. 75/-. That after the death of Jamil Ahmed, defendant is in illegal and unauthorized possession of the said property.
4. It is alleged that defendant raised illegal and unauthorized construction of 1st and 2nd floor on the said property without any permission of the plaintiff or any sanctioned plan from competent authority and defendant also made additions/ alterations and structural changes in the ground floor portion without any permission and has also changed the user of the said property by running a factory at ground floor.
5. It is alleged that recently on or about 18.7.07, defendant Suit. No. 327/11 Page No. 2 of 13 Khwaja Rashid Ahmed On 04th March, 2015 brought some building material with a view to raise construction of 3rd floor illegally and unauthorizedly and the illegal and unauthorized construction is still going on. The said illegal and unauthorized construction is shown in red color in the site plan. Defendant has no right to do so. It is stated that defendant is using substandard and low quality material by overlooking the safety measures. That the plaintiff on 22.7.07 apprised the defendant that the property is very old and it may collapse on raising of 3rd floor and requested him not to do so but to no avail. Plaintiff approached local police but of no use and plaintiff is also approaching MCD but the officials are in collusion with defendant.
6. It is alleged that due to the said illegal activities, plaintiff apprehends that the property may collapse at any time leading to heavy loss of life and property as there have been similar instances in the same capacity. A Decree for permanent injunction is prayed to restrain the defendant from raising any illegal and unauthorized construction in the suit property as shown in red color. Decree for mandatory injunction is also prayed directing the defendant to demolish the illegal and unauthorized construction as shown in red color and to restore the premises in its original condition.
7. In WS, it is contended that no illegal and unauthorized construction is being made by the defendant nor has been raised earlier. That the plaintiff has not given the correct description of Suit. No. 327/11 Page No. 3 of 13 Khwaja Rashid Ahmed On 04th March, 2015 the property under the tenancy of the defendant. That the premises were let out for residential-cum-commercial purposes and the ground floor is used for running factory since long back. That the plaintiff has not come with clean hands. It is not denied that the father of the defendant was tenant. The site plan of the plaintiff is incorrect and it does not show the correct extent of the tenanted premises.
8. With regard to the allegations as to unauthorized construction of 1st and 2nd floor, it is contended that the property is in existence since very long time and the ground floor is factory since beginning and the upper floor has been used as residential-cum-commercial purposes for a long time and it is denied that defendants raised 1st and 2nd floor and carried out additions/ alterations and structural changes at the ground floor portion as alleged. It is stated that the premises under tenancy of the defendant is very old and it required minor repairs from time to time, and as the landlord did not do the same, so the defendant under such circumstances have been effecting repairs to make the premises safe for use.
9. The allegations regarding raising construction of 3rd floor are denied. The question of using substandard material does not arise as no construction is being carried out as alleged. The other averments of the plaint are also denied.
Suit. No. 327/11 Page No. 4 of 13Khwaja Rashid Ahmed On 04th March, 2015
10. In replication, the averments of the WS have been denied and those of the plaint have been reaffirmed. It is further stated that the tenancy of defendant's father was duly terminated during his lifetime and hence, the defendant is in illegal and unauthorized possession of the suit property.
11. Vide order sheet dt. 15.05.08 the following issues have been framed as under:-
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP.
2. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP.
3. Whether the plaintiff has any locus standi to file the present suit? OPD.
4. Whether the suit of the plaintiff is liable to be dismissed for want of cause of action? OPD.
5. Relief.
12. To substantiate his case on judicial file, plaintiff himself appeared in the witness box as PW-1 and his affidavit in evidence is EX P1. The documents filed and relied upon on behalf of plaintiff are site plans EX PW 1/1 and EX PW 1/3, copy of rent receipts EX PW 1/2, negatives of the photographs EX PW 1/4, photographs (colly six) EX PW 1/4 named as A to F. Suit. No. 327/11 Page No. 5 of 13 Khwaja Rashid Ahmed On 04th March, 2015
13. On the other hand, defendant himself appeared in the witness box as DW-1 and his affidavit in evidence being EX DW 1/A. No documents were filed on behalf of defendant.
14. I have heard the arguments of both sides and perused the record. My issue-wise disposal of the present suit is as under:-
15. Issue No. 1 and 2:-
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP.
2. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP.
Both issues involve common discussion and can be decided together. Briefly, the case of the plaintiff is for permanent injunction to restrain unauthorized construction in the property and for mandatory injunction seeking direction for the defendant to demolish the unauthorized construction raised by him, as shown in red color in the site plan and to restore the premises in its original condition.
16. The allegations of the plaintiff are that a portion consisting of two dalan, two kotheries and open courtyard at ground floor of property bearing no. 2665 was originally let out to the father of the defendant at monthly rent of Rs. 75/- for residential purposes and Suit. No. 327/11 Page No. 6 of 13 Khwaja Rashid Ahmed On 04th March, 2015 after his death defendant has raised unauthorized construction of 1st and 2nd floor on the said property without permission and also made structural changes in the ground floor portion and has also changed user of the property by running a factory. Plaintiff has also alleged that recently defendant is also raising 3rd floor illegally and also using substandard and low quality material due to which the property may collapse.
17. On the other hand, the defendant, while only admitting that his father was a tenant, has denied all other averments as to raising unauthorized construction. It is contended by the defendant that plaintiff has filed incorrect site plans and the status of the tenanted premises is also not given. It is further claimed that the defendant has been running the factory at the ground floor since long.
18. I have analyzed the evidence in light of the pleading made.
The plaintiff claims that some portion at ground floor in property no. 2665 was given on rent to the father of the defendant. But it is nowhere disclosed in which year it was let out and what was the extent of construction existing in the said property number when the said portion at ground floor was let out. The manner in which the pleadings have been made out in para 2 of the plaint by specifically using the words "ground floor" reflect that there existed some other construction as to other floors in this property as well. Since the plaintiff has used the word "originally" in the said pleadings of para Suit. No. 327/11 Page No. 7 of 13 Khwaja Rashid Ahmed On 04th March, 2015 2, it was necessary for him to have clearly stated the extent of the entire construction, whatsoever existing in the said property number. The plaintiff has not pleaded that the said property number consisted of ground floor only. Even if any property or building consists of ground floor then also there exists a terrace over it for which a passage by way of internal/ external stairs may be drawn from the ground. Thus, the pleadings of the plaintiff are silent on the extent of construction in the said property no. 2665 existing as on the date of letting out of the alleged portion at ground floor.
19. The plaintiff has filed two site plans EX PW 1/1 and EX PW 1/3. For the site plan EX PW 1/1, the plaintiff states that it is a ground floor plan which shows the portion let out to the father of the plaintiff in blue color. But this is a site plan, a piece of evidence, and therefore, cannot take the place of pleadings. This site plan EX PW 1/1 cannot fill any lacuna left in the pleadings of the plaintiff. Moreover, plaintiff has also not at all disclosed the date or year or even the time period during which allegedly the defendant raised the 1st and 2nd floor. He has brought the present suit upon the event of the alleged unauthorizedly raising of 3rd floor by the defendant. Thus, this site plan EX PW 1/1 pertains to an earlier time as this does not show any structural changes allegedly carried out by the defendant at the ground floor. But this site plan has been filed only along with the present suit. Since this site plan EX PW 1/1 does not mention any unauthorized structural changes allegedly carried out Suit. No. 327/11 Page No. 8 of 13 Khwaja Rashid Ahmed On 04th March, 2015 by the defendant, therefore, it depicts a picture quite earlier in time. Thus, for the preparation of this site plan, the plaintiff might have described/ instructed the architect to prepare it. It is noted that not even the said architect, who prepared the site plan, has been examined. It is even noted that the plaintiff/ PW-1 in his cross- examination stated that he never entered in the premises at any point of time but further volunteered to state that he once entered to get the site plan prepared and probably it was in the year 2007. But the site plan he referred to in the said portion of his testimony was the site plan EX PW 1/3 and not this site plan EX PW 1/1. Thus, the plaintiff has failed to prove this site plan EX PW 1/1. Here, it is also to be noted that plaintiff/ PW-1 in his same testimony has clearly admitted that he does not have any document to show the construction existing in the year 1956 and construction existing as on the date of filing of this suit.
20. Plaintiff has alleged that the defendant has raised unauthorized construction of 1st and 2nd floor without permission. Firstly, it is observed that no date or year or even any time period for such raising of unauthorized construction of 1st and 2nd floor has been disclosed. This has already been noted in the foregoing para. It is important to note that PW-1 in his testimony dt. 11.11.13 deposed as under:-
"I never complained to the police or any authority regarding the alleged unauthorized construction or that any construction is going on in the suit property. I do not Suit. No. 327/11 Page No. 9 of 13 Khwaja Rashid Ahmed On 04th March, 2015 have any documentary evidence to show that the defendant was carrying on construction and had carried out the same in the suit property and that the same is unauthorized."
21. Even assuming for a moment the allegations of the plaintiff to be true, it is noted that he has alleged unauthorized construction of 1st and 2nd floor. It is common knowledge that two floors cannot be raised overnight and it must have took some time in construction of the same and it is surprising to observe that the plaintiff never complained to any authority for the alleged unauthorized construction of 1st and 2nd floor i.e. the illegal construction but is coming before the Court in the present suit with the same reasons of unauthorized construction for the 3rd floor. Thus, here itself a doubt is created upon the story of the plaintiff regarding the defendant having raised unauthorized construction of 1st and 2nd floor in the property. Further, it is noted that PW-1 in his cross examination dt. 03.02.11 stated that there are two rooms on the 1st floor and further volunteered to state that a kitchen and bathroom is also there. But the site plan of the plaintiff EX PW 1/3, which shows the ground floor, 1st floor and 2nd floor portions, displays only one room, kitchen and open terrace. Thus, the deposition of plaintiff/ PW-1 is not in consonance with the site plan EX PW 1/3. Similarly, on the next date of cross examination i.e. 11.11.13 also PW-1 stated that there are two rooms and open area on the 2nd floor and this time PW-1 stated that there is no other construction. Thus, plaintiff/ PW-1 has even changed his stand from his previous deposition.
Suit. No. 327/11 Page No. 10 of 13Khwaja Rashid Ahmed On 04th March, 2015 Regarding the 1st floor, PW-1 in his testimony dt. 11.11.13 stated that there exist only two rooms and no other construction. But the site plan EX PW 1/3 shows a bathroom also on the 1st floor. Thus, it is again seen that the testimony of PW-1 does not support his site plan EX PW 1/3. Here, again it is noted that plaintiff never took any opportunity to summon the architect who prepared this site plan EX PW 1/3. PW-1 on 11.11.13 stated that the person who prepared the site plan took the measurement as he might have mentioned the same in site plan EX PW 1/3. But there are no measurements mentioned in this site plan EX PW 1/3. The site plan EX PW 1/3 does not even support the pleadings as plaintiff in para 5 of his plaint pleads that defendant is raising construction of 3rd floor which is still going on. But no 3rd floor, as alleged, is shown in this site plan EX PW 1/3. It is also noted that the plaintiff had put suggestions to the defendant/ DW-1 regarding construction of mezzanine floor but it is beyond the pleadings of the plaintiff as there is no averment regarding the defendant having constructed any mezzanine floor. Thus, the plaintiff has also failed to prove the site plan EX PW 1/3.
22. Plaintiff has also failed to prove the alleged rent receipts EX PW 1/2 as the same are in Urdu and he did not even bother to file their translated copies and did not summon any person for translating the same. By the photographs EX PW 1/4, it cannot at all be decided whether there is any unauthorized construction or if Suit. No. 327/11 Page No. 11 of 13 Khwaja Rashid Ahmed On 04th March, 2015 any construction was carried out, it was unauthorized. The plaintiff has not even moved any application in writing to the MCD or concerned police to complain and it is only a bare allegation in the plaint that the MCD officials are in collusion with the defendant. Nothing has been proved on record.
23. In view of the above discussion, it is concluded that the plaintiff has utterly failed in his case to prove that defendant unauthorizedly raised construction of 1st floor and 2nd floor or that he even raised any construction as such. He has further failed to prove his allegations regarding the 3rd floor as well. Consequently, no relief for permanent and mandatory injunction can be granted. Both issues no. 1 and 2 are accordingly decided against the plaintiff.
24. Issue No. 3:- Whether the plaintiff has any locus standi to file the present suit? OPD.
Locus standi is the right of a party to file any suit. Since, admittedly, plaintiff is one of the co- landlord of the suit property, it cannot be said that he has no locus standi to file the present suit. Issue decided accordingly in favour of plaintiff.
25. Issue No. 4:- Whether the suit of the plaintiff is liable to be dismissed for want of cause of action? OPD.
Suit. No. 327/11 Page No. 12 of 13Khwaja Rashid Ahmed On 04th March, 2015 Cause of action is a bundle of facts. Plaintiff has alleged that defendant has carried out unauthorized and illegal construction in the suit property and has claimed permanent and mandatory injunction on the said ground. It therefore cannot be said that the suit has no cause of action. Issue decided accordingly in favour of the plaintiff.
RELIEF In view of the findings above, the suit of the plaintiff is hereby dismissed.
In the circumstances of the case, parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 04.03.2015 CIVIL JUDGE-06, CENTRAL
THC/DELHI/04.03.2015
Suit. No. 327/11 Page No. 13 of 13
Khwaja Rashid Ahmed On 04th March, 2015