Delhi District Court
Rukhmuddin vs Balwant & Ors. on 21 December, 2013
Rukhmuddin Vs.Balwant & Ors.
IN THE COURT OF MS. RAJAT GOYAL: CJ06 (SOUTH):
SAKET COURTS COMPLEX, NEW DELHI
In the matter of
CS No. 204/13
Rukhmuddin
S/o Sh. Surajmal @ Bode Khan,
r/o 54, Village Chandan Hola,
Fatehpur Beri, Mehrauli,
New Delhi. ... Plaintiff
Versus
1. Balwant
S/o Late Sh. Firozi
2. Saukat
S/o Sh. Rati Ram
3. Liyakat
S/o Sh. Rati Ram
All r/o 54, Village Chandan Hola,
Fatehpur Beri, Mehrauli,
New Delhi.
... Defendants
Date of Institution : 06.02.2012
Date of Reserving Judgment : 17.12.2013
Date of Decision : 21.12.2013
J U D G E M E N T
(on Suit for declaration and permanent injunction)
1. This suit was filed by the plaintiff for seeking a decree of CS No. 204/13 Page 1 of 14 Rukhmuddin Vs.Balwant & Ors.
declaration and permanent injunction against the defendants.
2. Briefly stated, case of the plaintiff is that the ancestors of the plaintiff and the defendants purchased property in laldora abadi bearing no. 54, village Chandanhola, Fatehpur Beri, Mehrauli, New Delhi. That the said property was divided amongst the father of the plaintiff and the defendants. That after the death of the father of the plaintiff, plaintiff had become the lawful owner of back portion of the said property. That the plaintiff later on disposed off the said back portion. That the plaintiff purchased front portion of the said property from one Yamin vide GPA, Agreement to Sell, Will etc. all dated 23.03.1993. That the house at the time of purchase consisted of two rooms and other structures and some open space alongwith 5 ft. combined gali, which gali is common for all the occupants of the entire property and was meant for common use of all (the said common gali of 5 ft. width shall hereinafter be referred to as the "suit property"). That the plaintiff is the ownerinpossession of House no. 54 alongwith the suit property. That the plaintiff has affixed certain windows in his house which open into the suit property and from where he is getting fresh air and light. That the plaintiff was constructing some portion on top of his house but was restrained by the defendants from doing so. That since January CS No. 204/13 Page 2 of 14 Rukhmuddin Vs.Balwant & Ors.
2010, the defendants have been threatening the plaintiff that they shall raise a wall in the suit property adjoining the wall of the house of the plaintiff due to which the windows opening into the suit property will be closed. That on 09.02.2010, the defendants brought some masons and labourers for the purpose of raising the said wall in the suit property. That the defendants stopped at that time on request of the plaintiff but have continued threatening the plaintiff. That the plaintiff had earlier filed civil suit bearing no. 331/10 against the defendants, which suit was dismissed as withdrawn vide order dated 08.12.2011. That the defendants are again threatening the plaintiff to raise a wall in the suit property so as to obstruct the windows in the house of the plaintiff opening into the suit property. Hence, the present suit.
3. Upon service of summons of the present suit, defendants appeared and filed their written statement (WS) denying the allegations as contained in the plaint. It was further submitted on behalf of the defendants that defendant no.3 is the absolute owner of the suit property and that the suit property is a private passage which has been used by defendant no.3. That no other person has any right or interest in the suit property. That before defendant no.3, CS No. 204/13 Page 3 of 14 Rukhmuddin Vs.Balwant & Ors.
his forefathers were in possession of the suit property. That the plaintiff wants to open a window opening towards the house of defendant no.3 so as to infringe upon the privacy of defendant no.3. That the plaintiff has a 24 ft. wide road in front of his house and that he can open windows towards that side. That if the plaintiff is allowed to open windows opening into the suit property then the privacy of pardanasheen ladies of the house of defendant no.3 will be invaded. That the suit property has been left by defendant no.3 for his egress and ingress. That the plaintiff never purchased the suit property nor has ever used the same. That though the defendants are not raising any wall in the suit property, they have every right to do so. That the defendants never extended any threats to the plaintiff. Hence, the present suit may be dismissed.
4. Plaintiff filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were again reiterated by way of the replication.
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 11.04.2013: CS No. 204/13 Page 4 of 14 Rukhmuddin Vs.Balwant & Ors.
1. Whether the suit of the plaintiff is without any cause of action? OPD
2. Whether the plaintiff has not approached the court with clean hands? OPD
3. Whether the suit of the plaintiff is not property valued and appropriate court fees has not been affixed? OPD
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiff has any right in the 5 ft. gali at House no. 54, Village Chandanhola, Fatehpuri Beri? OPP
6. Whether is plaintiff is entitled to the relief of declaration as prayed for in prayer 'a' of the plaint? OPP
7. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer 'b' of the plaint? OPP
8. Whether the plaintiff is entitled to the relief as prayed for in prayer 'c' of the plaint?OPP
9. Relief, if any.
6. In order to prove his case, the plaintiff examined himself as his sole witness and closed his evidence thereafter. Defendants, on the other hand examined defendant no.1 as DW1 and defendant CS No. 204/13 Page 5 of 14 Rukhmuddin Vs.Balwant & Ors.
no.3 as DW2.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO. 1
Whether the suit of the plaintiff is without any cause of action? OPD
8. The onus to prove this issue was upon the defendants. Ld. counsel for the defendants has argued that the present suit was filed by the plaintiff claiming therein, interalia, that defendants are raising a construction over the suit property. However, it has been argued on behalf of the defendants that there is no evidence on record to prove this allegation of the plaintiff. However, I do not find much merit in this contention of the Ld. counsel for the defendants. PW1, in his cross examination, has categorically stated that defendants had threatened that they shall raise a wall in the suit property. That itself is sufficient cause of action for filing the present suit. Also, plaintiff is seeking decree of declaration as to ownership of the suit property alongwith injunction for restraining the defendants from causing any hindrance in the construction being CS No. 204/13 Page 6 of 14 Rukhmuddin Vs.Balwant & Ors.
carried out by the plaintiff in his portion of property bearing No. 54, Village Chandan Hola, Fateh Pur Beri, Mehrauli, New Delhi. DW1 as well as DW2 have clearly stated in their evidence that they had objected to the said construction by the plaintiff. Thus, it cannot be said that the present suit was filed without any cause of action. Hence, issue No. 1 is decided against the defendants and in favour of the plaintiff.
ISSUE NO. 2
Whether the plaintiff has not approached the court with clean hands? OPD
9. The onus to prove this issue was upon the defendants. Ld. counsel for the defendants has argued that plaintiff had filed another suit for permanent injunction against the defendants and that suit was dismissed. It has further been argued that plaintiff has not disclosed this fact in the present suit showing his malafide conduct. However, I do not find any merit in this contention of the Ld. counsel for the defendants. As per Ex. DW2/1, which is certified copy of earlier suit filed by the plaintiff, that suit was dismissed as withdrawn with a liberty to file fresh suit seeking a declaratory relief. Thus, permission was granted to the plaintiff to file fresh suit. Also, CS No. 204/13 Page 7 of 14 Rukhmuddin Vs.Balwant & Ors.
this fact has been clearly mentioned by the plaintiff in para No. 11 of the plaint. Thus, there is absolutely no ground to say that plaintiff has not approached this court with clean hands. Hence, issue No. 2 is decided against the defendants and in favour of the plaintiff. ISSUE NO. 3
Whether the suit of the plaintiff is not property valued and appropriate court fees has not been affixed? OPD
10. The onus to prove this issue was upon the defendants.
However, no evidence has been led by the defendants to prove this issue nor was the said issue pressed during the course of arguments. As per valuation clause contained in the plaint, I am of the view that the suit has been properly valued and appropriate court fee affixed. Hence, issue No. 3 is also decided against the defendants and in favour of the plaintiff.
ISSUE NO. 4
Whether the suit of the plaintiff is not maintainable? OPD CS No. 204/13 Page 8 of 14 Rukhmuddin Vs.Balwant & Ors.
11. The onus to prove this issue was upon the defendants.
However, no evidence has been led by the defendants to prove this issue nor was the said issue pressed during the course of arguments. Hence, issue No. 4 is decided against the defendants and in favour of the plaintiff.
ISSUES NO. 5 & 6
Whether the plaintiff has any right in the 5 ft. gali at House no. 54, Village Chandanhola, Fatehpuri Beri? OPP ; and Whether plaintiff is entitled to the relief of declaration as prayed for in prayer 'a' of the plaint? OPP
12. Both these issues being interlinked, are being taken up together here. The onus to prove these issues was upon the plaintiff. It has been averred on behalf of the plaintiff that plaintiff had purchased front portion of house No. 54, Village Chandan Hola, Fateh Pur Beri, Mehrauli, New Delhi alongwith the suit property by way of GPA, agreement to sell and Will dated 23.03.1993. However, the plaintiff has failed to produce originals of the said documents and only a photocopy of the same have been placed on record as CS No. 204/13 Page 9 of 14 Rukhmuddin Vs.Balwant & Ors.
Mark A. Thus, the same are not duly proved as per law. Even otherwise, perusal of GPA and agreement to sell alongwith affidavit and receipt (Mark A) dated 23.03.1993 shows that the said documents nowhere mention that suit property was purchased by the plaintiff. GPA dated 23.03.1993 only describes the property purchased by the plaintiff as being bound by a combined 5 feet gali (suit property) towards the South side. Thus, it cannot be said that plaintiff is the owner of the suit property having purchased the same by way of GPA, agreement to sell dated 23.03.1993 etc.
13. Ld. Counsel for the plaintiff has argued that the suit property is a combined gali for use of the plaintiff as well the defendants and hence, plaintiff is entitled to declaration as to ownership of the suit property upto the extent of 1/3rd share. However, there is absolutely no evidence on record to prove that plaintiff and defendants are the only persons who are using or are entitled to use the suit property. Photographs Ex. PW1/2 and Ex. PW1/3 are also inconclusive in this regard as they do not go on to show that no other person, apart from the parties to the present suit, stays in that area and that suit property is not being used by any such person. Hence, in view of this discussion, it cannot be CS No. 204/13 Page 10 of 14 Rukhmuddin Vs.Balwant & Ors.
said that plaintiff has any ownership right in the suit property. Hence, issues No. 5 and 6 are decided against the plaintiff and in favour of the defendants.
ISSUE NO. 7
Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer 'b' of the plaint? OPP
14. The onus to prove this issue was upon the plaintiff.
Plaintiff has sought the relief of permanent injunction for restraining the defendants from raising any wall/ construction in the suit property. Ld. Counsel for the defendants has argued that defendant no. 3 is the absolute owner of the suit property and that the suit property is a private passage used only by defendant no. 3 and by no other person. However, I do not find much merit in this contention of the Ld. Counsel for defendants. There is not even an iota of evidence on record to prove that defendant no. 3 is the absolute and sole owner of the suit property. Ld. Counsel for defendants has argued that defendant no. 3 had purchased back portion of property bearing no. 54, Village Chandan Hola, Fatehpur Beri, Mehrauli, New Delhi and that after the said purchase, no other person had any right CS No. 204/13 Page 11 of 14 Rukhmuddin Vs.Balwant & Ors.
left over the suit property. However, there is no document on record to show that along with purchasing back portion of property bearing no. 54, defendant no. 3 had also purchased the suit property. It must further be noted here that in his cross examination as DW 2, defendant no. 3 has admitted that the suit property was used by the plaintiff. Also, as per photographs Ex.PW1/2 and Ex.PW1/3, it is clear that projections in the form of varandah from the house of the plaintiff have been extended into the suit property. Thus, in view of the fact that there is no evidence on record in support of the contention of the defendants that defendant no. 3 is the sole and absolute owner of the suit property, I am of the opinion that the suit property is a common passage for use and enjoyment of all the residents of the houses adjacent to the suit property. Since the suit property is a common passage, defendants have absolutely no right to raise any wall/construction in the suit property. Hence, issue no. 7 is decided in favour of the plaintiff and against the defendants. ISSUE NO. 8
Whether the plaintiff is entitled to the relief as prayed for in prayer 'c' of the plaint?OPP
15. The onus to prove this issue was upon the plaintiff. As CS No. 204/13 Page 12 of 14 Rukhmuddin Vs.Balwant & Ors.
already discussed above, I am of the opinion that the suit property is a common passage/gali. Plaintiff is not carrying out any construction in or over the suit property. He is only seeking injunction to restrain the defendants from causing disturbance in construction work being carried out by him in front portion of house no. 54, Village Chandan Hola, Fatehpur Beri, Mehrauli, New Delhi. Since the suit property is a common passage, plaintiff has a right to install windows in front portion of H. No. 54, which windows might open into the suit property. Defendants cannot obstruct the plaintiff from opening windows in his own portion of H. No. 54 merely because the said windows open into the suit property as the suit property is a common passage. Thus, issue no. 8 is decided in favour of the plaintiff and against the defendants.
Relief
16. In view of my findings on the above mentioned issues, suit of the plaintiff is partly decreed and a decree of permanent injunction is passed in favour of the plaintiff and against the defendants and the defendants, their agents, heirs, successors, assignees etc. are hereby restrained from raising any wall or construction over the suit property i.e. gali of 5 ft width situated CS No. 204/13 Page 13 of 14 Rukhmuddin Vs.Balwant & Ors.
adjacent to H. No. 54, Village Chandan Hola, Fatehpur Beri, Mehrauli, New Delhi. The defendants, their agents, heirs, successors, assignees etc. are also restrained from creating any obstruction or hindrance of any sort whatsoever in construction being carried out by the plaintiff in this portion of H. No. 54, Village Chandan Hola, Fatehpur Beri, Mehrauli, New Delhi. Parties to bear their own costs. Decree sheet be prepared accordingly.
17. File be consigned to the record room after due compliance.
Announced in Open Court on 21.12.2013 (Rajat Goyal) Civil Judge06 (South) Saket Courts,New Delhi CS No. 204/13 Page 14 of 14