Delhi District Court
Pankaj Arora vs Pawan Gupta on 28 November, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
RCA No. 120/2017
CNR No. DLNE01-010238-2016
Pankaj Arora
S/o Sh. Madan Lal Arora
R/o Plot No. 13-14,
Khasra No. 1094/289,
Village Tahirpur, Opposite Red Cross Hospital,
Dilshad Garden, Delhi. ..Appellant
Versus
1. Pawan Gupta
S/o Sh. Ram Niwas Gupta
R/o Plot No. 15, Oberoi Complex,
Dilshad Garden, Delhi.
2. East Delhi Municipal Corporation
Through its Commissioner
Patparganj, Delhi.
3. SHO
P.S. Seemapuri, Delhi.
4. Head Constable Jai Prakash
P.S. Seemapuri, Delhi. ..Respondents
Date of filing of the present appeal : 08.12.2017 Date of completion of Final Arguments : 23.11.2023 Date of judgment : 28.11.2023 Final Decision : Dismissed RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 1 of 23 JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff, before, the Learned Trial Court) against, the impugned judgment and decree, dated 01.11.2017, titled as Pankaj Arora vs. Pawan Gupta & Ors. in Civil Suit no. 4338/2015. The suit of the plaintiff was dismissed by the Court of Learned Judge, the then JSCC-ASCJ-Guardian Judge, North East District, Karkardooma Courts, Delhi.
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. Pankaj Arora as plaintiff and respondents that is Sh. Pawan Gupta,, East Delhi Municipal Corporation, Station House Officer, Police Station Seemapuri and Head Constable Jai Prakash, Police Station Seemapuri shall be referred to as defendants.
3. The brief facts as disclosed in the plaint are that appellant/plaintiff is the owner/occupation of the property and even plot bearing number 13-14 Khasra number 1094/289, Village Tahirpur opposite Red Cross hospital, Dilshad Garden. Delhi. It is further stated the appellant/plaintiff is running his business from the aforementioned property. It is further stated that defendant number 1 is in use and occupation of property bearing plot number 22, Oberoi Complex, Dilshad Garden, Delhi and using the same for packaging material in the name and style of M/s R.S.G. Packaging. It is further stated that the properties of appellant/plaintiff and respondent/defendant are separated by one common lane. It is further stated that defendant number 2 is the civil corporation and defendant number 3 and 4 are from the police department. It is further stated that defendant number 1 in contravention of the provisions of law raised RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 2 of 23 unauthorized construction without any right and sanction plan from any competent authority. Respondent/defendant number 1 had also put the iron bars upon the lanter of the roof protruding out on the common lane with an intention to encroach the common lane. It is stated that appellant/plaintiff had objected to the illegal construction raised by defendant number 1 and asked him to remove the same. It is further stated that respondent/defendant number 1 called respondent/defendant number 3 alongwith the police officials from Police Station Seema Puri and threatened to take illegal action against the appellant/plaintiff if he dared to make any complaint against respondent/defendant number 1. The plaintiff lodged the complaints with respondent/defendant number 2, but, no action was taken. It is further stated that as the body of the truck of the appellant/plaintiff was parked in the common lane, respondent/defendant number 1 could not encroach upon the common lane. It is further stated that plaintiff was repairing the boundary wall and restoring the gate on 27.05.2011, but not raising any unauthorized construction. It is further stated that at about 1.00 pm, on 27.05.2011, defendant no. 4 alongwith other police personnel from Police Station Seema Puri came at the plot of the plaintiff and started demolishing the boundary wall which the plaintiff had been restoring. It is alleged, that when the objection was raised by the plaintiff and his father, both of them were abused and taken to Police Station Seema Puri and were forced to sit in the Police station till 7:00 pm. It is further stated that as respondent/defendant number I was raising the unauthorized construction in violation of the law and respondent/defendant number 2 to 4 were not discharging their official duties thus, suit is filed. It is therefore requested that the decree of permanent injunction alongwith the decree of mandatory injunction be passed in favour of the appellant/plaintiff and against the respondents/defendants.
4. Respondent/defendant number 1 contested the suit by filing his RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 3 of 23 written statement in which apart from denying contentions raised by the appellant/plaintiff in his plaint, it is stated that that the suit of the appellant/plaintiff is without any cause of action and self contradictory. It is stated that at one place appellant/plaintiff is claiming that the gate and boundary wall of the appellant/plaintiff facing the common lane had fallen down due to thunderstorm, while, on the other hand appellant/plaintiff had filed the site plan where gate had been demolished gate was shown. It is further stated that appellant/plaintiff want to take the benefit of his own wrong by concealing the fact that no gate was ever installed towards the property of respondent/defendant number 1/alleged common Gali. It is further stated that the site plan was filed by the plaintiff is wrong. It is further stated that the previous chain of the title deeds with respect to the plot no. 13 & 14 made the picture completely clear qua the boundaries in between the appellant/plaintiff's plot and property of respondent/defendant number 1. It is further stated that after perusing all these documents it is very clear that there is no alleged common Gali exists therefore the suit of the plaintiff is without any cause of action. It is further stated that the property adjacent to the property of plaintiff is bearing number 15, Oberoi complex Village Jhilmil, Dilshad Garden measuring about 250 square yards and purchased by the respondent/defendant number 1 from Smt. Geeta Mittal by virtue of sale deed, dated 06.04.2005 and there is absolutely no mention any common Gali. It is further stated that respondent/defendant number 1 had purchased the suit property alongwith its existing structure. It is further stated that instead the appellant/plaintiff who had put his body of the truck on the land of defendant no. 1 on being asked to remove the same picked up fight with the respondent/defendant number 1. It is further stated that respondent/defendant has objections if appellant/plaintiff wans to put gate towards the property of RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 4 of 23 respondent/defendant number 1. it is also stated that there are two walls, one of the appellant/plaintiff and other respondents/defendants which clearly shows that there is no common gali. It is therefore requested that suit of appellant/plaintiff be dismissed.
Respondent/defendant number 2 instead of filing the written statement has relied upon the successive status reports. In the status report filed on 18.07.2012, it is stated that respondent/defendant number 1 had raised the unauthorized construction over the property bearing number 467/15, Oberoi Compound, G.T. Road, Dilshad Garden and was accordingly booked vide file No. 143/B/UC/SS dated 09.07.12 & demolition order would be passed by 30.07.2012 after following the due process.
In the further report, dated 29.01.2016, it is stated qua the status of the property of the plaintiff as well as the respondent/defendant that unauthorized construction over the property bearing number 467/15, Oberoi Complex, Dilshad Garden, Delhi was booked vide File No. 143/UC/B/SHS/2012 dated 09.07.2012. The demolition order passed on 30.07.2012. The demolition order passed on 30.07.2012. It is also stated in that order that the projection in the shape of slab was also demolished.
Further, it It is pertinent here to reproduce the report filed by East Delhi Municipal Corporation, dated 25.07.2016:-
That, the Hon'ble Court vide order dated 30.01.2016 directed to EDMC to file a status report wherein it should be specifically mentioned whether any gali is in existing and whether any unauthorized construction has been carried out in said gali. However, the report upto this effect could not file due to gap of communication as well as want of documents from the other parties to the suit. The non-filing of the report on previous date is highly regrettable. That, it is submitted that the site has been again inspected along with concerned area Junior Engineer on 22.07.2016. During the inspection, it has been noticed there is a lane backside of the structure pertaining to Pawan Gupta & Ors. There RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 5 of 23 also Iron gate exist at the very entrance of lane. It has been informed by the occupants of the properties that lane in question is in fact part of their plot and they have left the same for their convenience. The further informed that lane is being maintained by themselves being the private lane. They have also submitted their ownership documents.
During the measurement of the plots size, it revealed that the portion of lane also include in the plots size as per ownership documents. The rough sketch and measurement detail are prepared and same are enclosed herewith for kind perusal of this Hon'ble Court. It is also pertinent to mention that there is no structure exists in the lane.
Written statement has not been filed by respondent/defendant number 3 despite ample opportunities given.
5. Despite opportunities having being granted to the appellant/plaintiff, no replication was filed.
6. Vide order dated 14.02.2013, the following issues were framed:-
1. Whether the plaintiff has not come to the Court with clean hands? OPD1
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the plaint? OPP
3. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the plaint? OPP
4. Relief, if any.
7. Thereafter, appellant/plaintiff has led his piece of evidence. Appellant/plaintiff Sh. Pankaj Arora has got examined himself as PW1. He tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the documents i.e. site plan as Ex.PW1/1, certified copy of sale deed, RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 6 of 23 dated 20.06.2007 as Ex.PW1/2, copy of electricity bill as Ex.PW1/3, nine photographs of suit property showing illegal constructions as Ex.PW1/4 (colly). PW1 was cross examined at length by Ld. Counsel for respondents/defendants number 1 and 2.
During the course of cross examination by Ld. Counsel for respondent/defendant number 1, PW1 submitted that there were two separate joint Power of Attorneys from whom he had purchased his own property and that the civil cases are pending between them as well. PW1 has also submitted that no pole of BSES was there in the Gali, neither, there is any road/sewer system/naali in that Gali. Later on, when the witness was called to produce further documents qua his property, he stated on oath that he does not have any chain of documents or the attorneys by which he had purchased the property. PW1 has also denied the suggestions to put him by the Ld. Counsel for respondent/defendant number 1 that he is deliberately not producing those documents as they are not showing the Gali in question.
Sh. Vineet Sharma was examined as PW2. PW2 has deposed similarly as that of PW1. He tendered his evidence by way of affidavit which is Ex.PW2/A. PW2 was cross examined at length by Ld. Counsel for respondent/defendant. During the course of cross examination, PW2 submitted that he has come to depose before the Court at the request of appellant/plaintiff and his father from whom he had purchased his property. PW2 further deposed that there is a site plan of Bergis Park Area which is sanctioned by the notified committee, Shahdara and which shows the Gali in question is Ex.PW1/D3. PW2 further submitted that there is no construction of defendant as of today in the Gali. PW2 has further submitted that he has not opened any gate in that Gali and he is not aware about the width of the Gali.
RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 7 of 23 Thereafter, respondent/defendant has also come in the witness box and got examined himself as DW1. He tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the following documents i.e. photocopy of General Power of Attorney as Mark D-1/A, photocopy of sale deed, dated 13.12.1995 as Ex.DW1/2 (OSR, running into 5 pages), photocopy of sale deed, dated 06.04.2005 as Ex.DW1/3 (OSR). DW1 was cross examined by Ld. Counsel for appellant/plaintiff. During the course of cross examination, DW1 has submitted that he had purchased his property with all the constructions from the previous owner. DW1 on being pointed out by Ld. Counsel for appellant/plaintiff stated that the portion X to Z which is 15 ft wide is not a public land and any outsider can not enter in that land.
Sh. Rajeev Kumar Jain was examined as D2W1. He tendered his evidence by way of affidavit which is Ex.D2W1/A and relied upon the documents i.e. copy of status report, dated 29.01.2016 as Ex.D2W1/1 and compliance report, dated 25.07.2016 as Ex.D2W1/2. D2W1 was cross examined at length by Ld. Counsel for appellant/plaintiff. D2W1 in his cross examination submitted that there may be Gali between the property of respondent/defendant number 1 and appellant/plaintiff but he is completely unaware about it's common use.
8. Learned Trial Court has denied the relief of the permanent as well as mandatory inunction to the appellant/plaintiff on the ground that appellant/plaintiff has failed to examine any witness from local authority to clarify the existence of common Gali as stressed. It is also pointed out by the Learned Trial Court that admittedly, no electricity pole was installed in the alleged Gali by BSES, the site plan produced by the appellant/plaintiff has not been proved by him in accordance with law and he has himself RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 8 of 23 admitted that there is no sewer line in the alleged Gali. Learned Trial Court has observed that all these circumstances have specifically pointed out/ unearthed the inability of appellant/plaintiff to prove the existence of alleged Gali. Learned Trial Court has further observed that even other public witness produced on behalf of appellant/plaintiff has stated that he had not visited the concerned area for last three years and thus, the value of his evidence is not much. Finally, it is stressed by the Learned Trial Court that as per the report of the Assistant Engineer, East Delhi Municipal Corporation, the alleged common lane was included in the plot size as per the ownership documents shown by the respondent/defendant. On the basis of all these lacunaes and in light of the conduct of appellant/plaintiff not to produce his chain of documents for proving his portion of the property, the relief of the injunctions, as requested by the appellant/plaintiff was denied.
9. Later on, the appellant/plaintiff aggrieved by the aforementioned decision preferred this appeal. Appellant/plaintiff in his application mentioning the grounds of appeal have once again reiterated the contents of plaint and other facts including contents of written statement, evidence etc. Apart from this, it is stated in the grounds of appeal that the Learned Trial Court had passed the impugned order without giving thoughtful consideration to the evidence, documents and legal position. It is further stated that the Learned Trial Court had failed to appreciate the evidence and cross examination of D2W1 Sh. Rajiv Kumar Jain, who had categorically deposed that the property of respondent/defendant number 1 had been illegally constructed and demolition order was passed qua the property of respondent/defendant number 1. It was also stated by D2W1 that as of now the property of respondent/defendant number 1 consisted of RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 9 of 23 basement to half third floor, meaning thereby no action as warranted was taken by respondent/defendant number 2 in collusion with respondent/defendant number 1. It is further stated that the Learned Trial Court had failed to appreciate the lay out plan Ex.PW1/D3, wherein the Gali in question was shown, but, not taken into account by the Learned Trial Court. It is stated that there exists a Gali/Lane 15 feet side as shown in red colour in the site plan Ex.PW18/1, which leads to the main road and the question to be determined by the Learned Trial Court was whether the Gali is common as claimed by the appellant/plaintiff or private as claimed by respondent/defendant number 1.
It is stated that on proper consideration of evidence led by the parties, it is proved that the aforementioned Gali is common. It is stated that the Learned Trial Court had wrongly held and relied upon the status report of the East Delhi Municipal Corporation and had wrongly concluded that Gali in question is a private Gali of the respondent/defendant number 1 thus, the impugned order is liable to be set set aside. It has been also stated that while passing the impugned order, Learned Trial Court had wrongly held that there is no sewer facility provided by authorities concerned in the entire area what to say of Gali in question therefore, it can not be a ground to hold that Gali in question is a private Gali, thus impugned judgment and decree is liable to be set aside. It is therefore requested to allow the present appeal and set aside the impugned judgment and decree, dated 01.11.2017, titled as Pankaj Arora vs. Pawan Gupta & Ors. in Civil Suit no. 4338/2015 passed by the Court of Learned Judge, the then JSCC-ASCJ-Guardian Judge, North East District, Karkardooma Courts, Delhi.
10. Vide separate order, the application moved on behalf of RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 10 of 23 appellant/plaintiff under Order XLI Rule 27 read with section 151 CPC is disposed of as dismissed. The said order for the sake of brevity is reproduced as under:-
IN THE COURT OF MS. MANU VEDWAN, ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI RCA No. 120/2017 Pankaj Arora ..Appellant/plaintiff Versus Pawan Gupta & Ors. .. Respondents/defendants 28.11.2023 ORDER ON APPLICATION UNDER ORDER XLI RULE 27 READ WITH SECTION 151 MOVED ON BEHALF OF APPLICANT/APPELLANT/PLAINTIFF.
1. Vide this order, I shall dispose of application under Order XLI Rule 27 read with section 151 CPC moved on behalf of applicant/appellant/plaintiff seeking permission to produce and proof as an additional evidence.
2. It is stated in the application that in the suit filed by the applicant/appellant/plaintiff a limited issue raised to the effect that in the West side of applicant/appellant/plaintiff's property part of Khasra number 1094/287-286-299-289 of Village Jhilmil Tahirpur, Delhi located at Main G.T. Road, Shahdara, adjacent to Ajay Service Station (Petrol Pump) located on main road opposite to Red Cross Hospital, Shahdara, Delhi, there exist a 15 feet.
wide road, and appellant is also having his opening towards the said Gali. It is further stated that respondent/defendant number 1 had tried to encroach that Gali consequently appellant/plaintiff had filed a civil suit for injunction in which respondent/defendant number 1 denied the existence of that Gali. Respondent/defendant number 1 had relied upon the photocopy of general power of attorney dated 23.06.1994 and sale deed, dated 26.12.1995 and another sale deed, dated 06.04.2005 in respect of the land measuring 250 square yards. It is stated that respondent/defendant number 1 had withheld the document that is registered Sale Deed registered as Document Number 2830 in Book Number 1 Volume Number 338, dated 19.10.1956 in the office of Sub-
Registrar, Delhi (Nazul), same is referred in General Power of Attorney, dated 23.06.1994, further sale deeds, dated 26.12.1995 and RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 11 of 23 06.04.2005. It is further stated that respondent/defendant number 1 derived title in respect of land in his possession on the basis of registered sale deed, dated 19.10.1956, which records Plot number 15 out of Khasra number 1090/289-299, 287, 286, Village Jhilmil Tahirpur, Illaqa Shahdara, Delhi measuring 733 square yards.
It is further stated that the sale deed, dated 19.10.1956 records that same is relating to Plot number 15 measuring 733 square yards Khata number 500/557 and Khasra number 1090/289- 299, 287, 286, Village Jhilmil Tahirpur, Illaqa Shahdara, Delhi and Eastern side 15 feet. wide road dividing the land under sale and plot number
14. It is relevant to mention here that applicant/appellant/plaintiff' property is a part of Plot number 14 and 13, out of Khasra number 1094/287-286-299-289 of Village Jhilmil Tahirpur, Delhi measuring 2133.33 square yards. It is further stated that the applicant/appellant/plaintiff has now obtained the certified copy of the sale, deed dated 19.10.1956 and discovered therein, also mentioned the existence of Gali, though in General Power of Attorney and sale deed relied upon are manipulated. It is stated that this document was deliberately withheld by the respondent/defendant number 1 from this Hon'ble Court. It is further stated that during the course of evidence before the Learned Trial Court, it has come on record that there is a gate of applicant/appellant/plaintiff opening towards 15 feet Gali. After the dismissal of the suit respondent/defendant number 1 had illegally constructed a wall in front of the applicant/appellant/plaintiff opening towards Gali alongwith installation of the gate towards the North side of 15 feet Gali. It is further stated that the total area of Plot number 13 and 14 Khasra number 1094/287-286-299-289 of Village Jhilmil Tahirpur, Delhi is measuring 2 Bigah, 3 Biswa or 2133.33 square yards (30 X 132) is in possession of Sh.
Vineet Sharma, who has been examined as PW2 and remaining portion measuring 1693.33 square yards is owned by the applicant/appellant/plaintiff and his family though at the spot area is approximately 1686 square yards. It is further stated that appellant/plaintiff wanted to produce/adduce additional evidence, /sale deed, dated 19.10.1956 as the same was not produced by the respondent/defendant number 1. It is stated by respondent/defendant number 1 wanted to grab the open Gali. It is further stated that leading of additional evidence is essential for effective adjudication of dispute between the parties. It is therefore requested that appellant/plaintiff be permitted to produce and proof as an additional evidence, the certified copy of the sale deed, dated 19.10.1956.
RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 12 of 23
3. No reply has been filed on behalf of any of the respondents/defendants despite opportunities given.
4. Arguments on behalf of both the parties have been heard at length. Application alongwith case records perused carefully.
5. It is clear that for entertaining an application, for production of additional evidence in an appeal, any one or more of the following three conditions have to be fulfilled: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(ii) the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or (ii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The appellate court may allow such evidence or document to be produced, or witness to be examined. It is but proper for the court that before entertaining those documents, the party or parties must satisfy that they could not place those documents at the appropriate stage, namely, before the trial court and there must be a bona fide effort in not filing those documents before the trial court. It is settled law that unless there is acceptable reason for not placing the required documents at the appropriate stage, the parties cannot be permitted to place the documents as additional evidence at the appellate stage.
The true test is whether the Appellate Court was able to pronounce the judgment from the materials before it without taking into consideration the additional evidence sought to be adduced. Reliance if placed upon Surjit Singh v Gurwant Kaur AIR 2014 SC 3679. However, the court is not bound by the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled to it as of right. The matter is entirely in the discretion of the court. Also, it has been held by the Hon'ble Supreme Court in the judgment titled as UOI vs. K.V. Lakshman, AIR 2016 SC 3139 that "Order XL1 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stages. If the party to appeal is able to satisfy the Appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the court should allow the party to file such additional RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 13 of 23 evidence. After all, the court has to do substantial justice to the parties. Merely because the court allowed one party to file additional evidence in appeal would not by itself mean that the court has also decided the entire case in his favour and accepted such evidence. Indeed, once the additional evidence is allowed to be taken on record, the Appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal."
It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Evidence relating to subsequent happenings of events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order XLI Rule 27 CPC additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case. Reliance is placed upon Malayalam Plantations Ltd. v. State of Kerala, AIR 2011 SC 559. Thus, it can be safely said that undoubtedly, Order XLI, Rule 27 of the Code of Civil Procedure enables the party to file the additional evidence at the first and second appellate stage, but, that too only in accordance with the conditions prescribed in that provision. On various occasions, Hon'ble Superior Courts has clarified the grounds for taking the additional evidence at the appellate stage. It is specifically stressed that for the purpose of doing the substantial justice in case when the Trial Court has refused to admit the evidence which ought to have been admitted, or when despite exercise of due diligence, any piece of evidence which was earlier not within the knowledge or could not be produced even after exercising of due diligence before the Learned Trial Court and also when the appellate Court itself requires any documents to be produced or any witness to be examined to enable it to pronounce the judgment. Only in these aforementioned circumstances, the permission to lead additional evidence at the appellate stage is allowed.
The Court is absolutely not bound to permit the additional evidence and parties are not entitled to it as of right and additional evidence cannot be permitted to be led to fill the lacuna or to patch up the week points in the case. Thus, the interest of the party who wants to lead the additional evidence and the aspect of filling up of the lacuna has to be properly balanced before making/passing of any order in these circumstances. Now, in the instant case, appellant wanted to adduce the certified copy of sale deed, dated 19.10.1956, in respect of plot number 15 of Khasra number 1090/289-299, 287, RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 14 of 23 286, Village Jhilmil, Tahirpur, Illaqa Shahdara, Delhi without explaining how this piece of evidence falls in any of the categories as are required under Order XLI Rule 27 of the Code of Civil Procedure as already discussed. Except for mentioning the fact that now he has obtained the certified copy of the aforementioned sale deed through which defendant number 1 is deriving his title in respect of land in his possession, no other reason has been mentioned. At the same time, it is also mentioned by the applicant/appellant/plaintiff that this document was referred by the respondent/defendant number 1 before the Learned Trial Court. Role of the present document in deciphering the bone of contention that is alleged common Gali has not been elaborated in the entire application. It is also not explained that how the production of the aforementioned sale deed would affect reliefs claimed by the applicant/appellant/plaintiff. At the same time, it is to be noted that despite the opportunities given by the Learned Trial Court, appellant/plaintiff/PW1 has miserably failed to produce even his chain of documents pertaining to his property. Therefore, in these circumstances, there seems to be no reason for allowing the present application. It is accordingly dismissed.
6. Nothing stated herein above shall amount to expression on merits of the case.
(Manu Vedwan) ADJ-02/North-East, KKD Courts, Delhi/28.11.2023
11. I have heard the arguments from both sides on the grounds of appeals in detail and perused the impugned judgment as well as evidence adduced by both parties including the written submissions.
In the written submissions filed on behalf of appellant/plaintiff, appellant/plaintiff has reiterated the contents of appeal as well as grounds of the appeal. It is stated that the respondent/defendant number 2/East Delhi Municipal Corporation has filed its first status report, dated 13.01.2014 in which demolition action was stated to be initiated against the respondent/defendant number 1. Thereafter, again second status report, dated 29.01.2016 was filed stating that the property bearing number 467/15, Obroi Complex was booked vide order, dated 09.07.2012 and RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 15 of 23 demolition order was passed on 30.07.2012 in pursuance of which, actions were being taken. Thereafter, the third Status Report, dated 25.07.2016 filed by East Delhi Municipal Corporation in which it is stated that the a lane on the back side of structure pertaining to Pawan Gupta and other was noticed. Iron gate also exists at the entrance of the lane. It is also mentioned no structure exists in the lane. It is stated that the photographs clearly show the existence of the lane. Even, the sketch plan, lane exists between the plot of appellant/plaintiff and respondent/defendant number 1. It is further stated that the respondent/defendant number 1 denied the existence of 15 ft. wide Gall in Eastern side of his plot & claimed that respondent/defendant number 1 is the owner of a portion of Plot number 15, Oberai Complex, Dilshad Garden, Delhi and relied upon photocopy of General Power of Attorney, dated 23.06.1994, sale deed, dated 26.12.1995 and another sale deed, dated 06.04.2005 in respect of land measuring 250 square yards and also denied unauthorized construction.
It is further stated that the documents relied upon by the respondent/defendant showed his deriving of title in the way that there earlier existed a plot number 15 approved by Notified Area Committee and East Delhi Municipal Corporation are its successive interest. The plot was purchased by Sh. Hira Lal Mathur from Mr. Valentine Herbert Grafton Burgess and Sh. Dewan Sukhdev Lal Tuli vide registered Sale Deed, dated 20.04.1942 and registered as Document number 489 in Book number 1 Volume number 14 at page 268 to 201 on 08.07.1942 in the Office of Sub- Registrar, New Delhi situated in Mauna (hilmil Tahirpur, Delhi: The Boundary in sale deed, dated 30.08.1941 is recorded as (South: A length 55 feet along A venue No. 1 a road of 26 feet wide, North: A length 55 feet along A venue No. 2 a road of 25 feet wide, East A length 120 feet along 15 feet wide service road and West Land owned by Vendor, leased to and RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 16 of 23 in possession of the Lessee Sh. S. L. Tulis). It is further stated that S. Gurdeep Singh Obroi and his Mother, namely, Smt. Ram Pyari had purchased the said Plot from Sh. Hira Lal Mathur vide sale deed executed on 19.10.1956 and duly registered in the Office of Sub-Registrar, Delhi (Nazul) in Book number 1, Volume number 338, at pages 168 to 188 as Document number 2830 dated 19.10.1956. The Boundary in sale deed dated 19.10.1956 is recorded as Under: East: 15 feet wide road dividing the land under sale and plot number 14: West: plot number 16 belonging to Mrs Ram Pyari Obroi & S. Gurdeep Singh Obroi as (North: 25 feet wide road dividing the land belonging to Mrs Ram Pyari Obroi & S. Gurdeep Singh Obroi: South: 26 feet wide road).
It is further stated that Smt Ram Pyari Obroi has purchased ½ share from her son namely S. Gurdeep Singh Obroi vide sale deed dated 11.04.1957 and duly registered in the Office of Sub-Registrar, Delhi in Book No.1, Vol. No.373, at pages 23 to 24 as Document No. 1204 dated 17.09.1957. The said Sale Deed is in Urdu language. It is further stated that S. Gurdeep Singh Obroi executed & registered GPA dated 23.06.1994 in favour of Sh. Pawan Kumar Gupta (respondent/defendant number 1) in respect of 250 square yards area same is duly registered in the Office of Sub-Registrar IV, Delhi in Addl Book No.4, Vol. No.3136, at pages 175 to 177 as Document No. 8667 dated 23.06.1994. This General Power of Attorney, dated 23.06.1994 is Ex.DW1/1. In General Power of Attorney Boundary is recorded as (East: property of others, West: Road 20 Feet wide, North: Remaining portion of Plot Nov 15 24 belongs to to owner and South Petrol Pump, Ajay Service station). It is further stated that Sh. Pawan Kumar Gupta (respondent/defendant number 1) in respect of 250 square yards area on the basis of registered General Power of Attorney, dated 23.06.1994, executed a sale deed, dated 26.12.1995 in favour of Smt RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 17 of 23 Geeta Mittal. This document is Ex.DW1/2. In sale deed, dated 26.12.1995 boundary is recorded as under: East property of others West: Road 20 Feet wide, North: Remaining portion of Plot number 15 and 24 belongs to owner, South: Petrol Pump (Ajay Service station). It is further stated that Sh. Pawan Kumar Gupta (respondent/defendant number 1) purchased 250 square yards area from Smt Geeta Mittal on the basis of vide sale deed, dated 06.04.2005 duly registered in the Office of Sub- Registrar, Delhi, this document is Ex.DW1/3. In sale deed dated 06.04.2005 boundary is recorded as (East: property of others, West: Road 20 Feet wide, North:
Remaining portion of Plot number 15 and South: Road & Petrol Pump, Ajay Service station).
It is further stated that the respondent/defendant number 1 has deliberately not relied upon the previous chain of documents as these contain the boundary as is raised by the appellant/plaintiff. It is stated that the purchaser is under an obligation to put complete chain of documents. Thereafter, appellant/plaintiff discussed his testimony as PW1 and testimony of PW2 as well as the testimony of DW1 and D2W1 and states that these testimonies pointed towards the common Gali of the width of 15 feet between the property of respondent/defendant number 1 and appellant/plaintiff. It is also stated by the appellant/plaintiff that to adduce the additional evidence regarding the certified copy of sale deed, dated 19.10.1956 pertaining to the suit property of respondent/defendant number 1 has also been separately filed for the reasons clearly mentioned in that application itself and to prove the existence of the alleged Gali, it is also stated that in civil cases "preponderance of the evidence" or the "balance of probabilities" is a relevant factor for deciding the lis, same is in plaintiff's favor and the appellant discharged the onus to prove the issues, by producing cogent, documentary & oral evidence and in totality, as RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 18 of 23 explained herein above. It is further stated that the Lay out Plan Ex.PW1/D3 passed vide Resolution No. 67/111, dated 19.04.1941 by NAC Shahdara Delhi, its successor in interest is Municipal Corporation of D Delhi/East Delhi Municipal Corporation, its correctness ratified from the title documents filed by defendant No. 1, as therein referred as well in Sale deed dated 19.10.1956.
12. Analysis and Findings:-
On the basis of aforesaid grounds, the point for determination is framed as:- Whether the findings and conclusion drawn by Learned Trial Court in passing the impugned judgment and decree, dated 01.11.2017, are bad in the eyes of law and legally not sustainable and liable to be set aside.
Undisputably, burden of proving of any fact falls upon a person who has pleaded that fact. As per Section 101 of the Indian Evidence Act 1872, burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Indian Evidence Act, 1872 is also in consonance with abovesaid section and stated that burden of proof lies on that person who would fail if no evidence was given at either side. Of course, the legal burden is the burden of proof which remains constant throughout a trial. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. In the instant case, burden of proof qua the agitated facts falls upon the appellant/plaintiff, as it is he who is claiming injunctions. Appellant/plaintiff here has required to create a high degree of probability RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 19 of 23 so as to shift the onus on the respondent/defendant number 1. Until, such burden is discharged the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Further, an injunction is a judicial process whereby a party is required to do, or to refrain from doing any particular act. Injunctions are of two kinds temporary and perpetual. Temporary injunctions are regulated by Rules 1 & 2 of Order XXXIX while, perpetual injunctions are regulated of the Specific Relief Act. A party against whom a perpetual injunction is granted is thereby restrained from doing the act complained of. Now, in the instant case, appellant/plaintiff is seeking the relief of permanent injunction/mandatory injunction against the respondent/defendant number 1 qua the use of common Gali. With respect to the relief of injunction, it is basically based on principles of justice, equity and good conscience.
Section 38 to 41 in the Specific Relief Act, 1963 deals with various aspect of the injunction. They have to be read, construed and interpreted together as each provisions supplemented the other. While, section 38 defines the circumstances under which the perpetual injunction be granted, Section 41 deals with the circumstances when the injunction must not be granted. There is equally and important condition for the grant of perpetual injunction, namely, when there is no equally efficacious relief which could RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 20 of 23 be granted to the plaintiff, except the relief of perpetual injunction, it should be granted.
It should be noted that the section contemplates the existence of rights in favour of the plaintiff as a condition precedent to the grant of the relief of the perpetual injunction, which is either threatened to be violated or is actually violated and existence of legal right in favour of one person contemplates the existence of corresponding legal duty in relation to that legal right in the other. In order to be entitled to perpetual injunction, the plaintiff must establish apprehended breach of an obligation existing in his favour, whether expressly or by implication. He must establish the right before he gets the injunction to prevent recurrence of its violation and Court has no jurisdiction to grant an injunction to restrain an act which inflicts no legal wrong on the plaintiff. The right in him gives rise to corresponding obligations in another, be he a private person or a public functionary.
Also, with respect to mandatory injunction it is most exceptional remedy and should be applied with the greatest safeguard for the prevention of waste as well as injustice. In granting or withholding an injunction, courts should exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to be done to the plaintiff and compare it with that which the injunction is granted would inflict upon the defendant. It is a statutory rule that an injunction should only be granted when pecuniary compensation would not afford adequate relief. But it does not necessarily follow therefrom that a court has always the power to grant pecuniary compensation for a wrong whenever an injunction is asked for. Reliance is placed upon Anand & Iyer's Commentary on The Specific Relief Act, 1963 (Act No. 47 of 1963).
In any suit where the plaintiff is claiming any type of injunction, the RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 21 of 23 onus is definitely on him to prove his own case. Law is well settled that merely because the defendant fails to prove his case, plaintiff suit is not to be decreed and the plaintiff has to stand or fall on the basis of the strength of his own suit. Now, in the instant case, appellant/plaintiff in his entire testimony either before the Learned Trial Court or before the present Court unable to prove/establish the existence of the common Gali as alleged/stressed. Appellant/plaintiff though has stated in his grounds of appeal/written submissions that there exists the Gali in question as per the earlier documents pertaining to the property of the respondent/defendants, but, as discussed by the appellant/plaintiff himself, this fact is not found mentioned in the later documents. This anomaly has never been clarified by appellant/plaintiff. At the same, it is to be noted that despite directions of the Learned Trial Court for clarity regarding the existence of the Gali, if any, appellant/plaintiff has failed to produce his set of documents pertaining to his property. Though, the appellant/plaintiff has moved an application under Order XLI Rule 27 of Code of Civil Procedure requesting to adduce the additional evidence for establishing the existence of common Gali, but, again miserably failed to explain that how the concerned sale deed, dated 19.10.1956 is able to establish the existence of common Gali as of today. Further, it is already cleared that before passing of any order qua the granting of injunction in favour of the party, he must establish his right and the corresponding duty in the another which in the totality of the circumstances, appellant/plaintiff has miserably failed to mention/explain/elucidate even in the light of preponderance of probabilities.
13. In view of my foregoing observations on all the issues, appeal of the appellants/plaintiffs deserves to be dismissed. The same is accordingly RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 22 of 23 hereby dismissed.
14. TCR be sent back with the copy of this judgment.
15. Appeal file be consigned to Record Room after due compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 28th November, 2023 RCA No. 120/2017 Pankaj Arora Vs. Pawan Gupta & Ors. Page No. 23 of 23