Delhi District Court
Satish Kumar Tiwari And Anr vs Anita Bagga And Anr on 31 October, 2023
Page 1 of 32
THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 960/19
CNR NO. DLSW030016162019
IN THE MATTER OF:
1.SH. SATISH KUMAR TIWARI S/o. Sh. Ram Keshwar Tiwari R/o. RZ-441-B, First Floor, Gali No. 2, Raj Nagar-I, Next to WZ-424, Defense Apartment, Palam Colony, New Delhi-110077.
2. SH. SUNIL KUMAR MISHRA S/o. Late Shri Jamuna Mishra R/o. RZ-441-B, Second Floor, Gali No.2, Raj Nagar-I, Next to WZ-424, Defence apartment, Palam Colony, New Delhi-110077. ........... PLAINTIFFS Versus
1. SMT. ANITA BAGGA W/o. Shri Anil Bagga R/o. RZ-441-B, Upper Ground Floor, Gali No.2, Raj Nagar-I, Next to WZ-424, Defence Apartment, Palam Colony, New Delhi-110077.
2. SMT. RASHMI BALUJA W/o. Shri Yash Pal Baluja.
R/o. House No. 17/190, Subhash Nagar, New Delhi-110027.
Also, R/o. RZ-441-B, Third Floor, Gali No.2, Raj Nagar-I, Next to WZ-424, Defence Apartment, Palam Colony, New Delhi-110077. .......... DEFENDANTS Date of filing : 21.08.2019 Date of Institution : 22.08.2019 Digitally signed Date of pronouncing judgment : 31.10.2023 ASHISH byKUMAR ASHISH MEENA KUMAR Date:
2023.10.31 Civil Suit No. 960/19 MEENA 16:29:29 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
+05'30' Page 2 of 32 SUIT FOR PERMANENT INJUNCTION AND MANDATORY INJUNCTION JUDGMENT.
By this judgment this Court shall dispose of a suit for permanent injunction and mandatory injunction filed by the plaintiffs against the defendants. Before adjudicating upon the issues framed in the present suit, it necessary to dwell upon the plethora of pleadings in the present suit.
1) In brief, the defendant no.2 was the owner of the built-up property bearing Property No. RZ-441-B, admeasuring 52.5 sq. Yds. (21.6" x 22") out of Khasra No. 64/10/2 & 64/15/2, situated in the revenue estate of village Palam, Delhi State Delhi and colony known as Raj Nagar-II, Palam Colony, New Delhi- 110077, presently known as Raj Nagar-I, Palam Colony, New Delhi-
110077 ("Suit premises") with free-hold rights of the land under the said property. The parking area/Stilt was situated at the lower ground floor of the said built up property.
2) The defendant no.2 sold the First Floor of the Suit Premises with common one two-wheeler parking right in the area 8x 22 in the Stilt to the plaintiff no.1 for Rs.9,50,000/- vide registered Sale Deed dated 26/10/2015, registered before Sub-Registrar IX, Kapashera, New Delhi on 30/10/2015 vide Registration No.11,157 in Book No.1, Volume No.8,485 on Pages 128 to 134.
3) Similarly, the defendant no.2 sold the Second Floor of the said property with common one two-wheeler parking right in the area measuring 8'x 22 in the Stilt to plaintiff no.2 for Rs.9,00,000/-
ASHISH Digitally signed by ASHISH Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date: 2023.10.31 KUMAR MEENA Civil Suit No. 960/19 MEENA 16:29:40 +05'30' Page 3 of 32 vide registered Sale Deed dated 04/11/2016 registered before Sub- Registrar IX, Kapashera, New Delhi on 09/12/2016 vide Registration No.9,412 in Book No.1, Volume No.8,913 on Pages 149 to 155.
4) It is averred that as per aforementioned sale deed, the common one two-wheeler parking right in the area measuring 8x 22 Feet in the Stilt ("Suit Property") were exclusively meant for the plaintiffs and the plaintiffs were given the exclusive common parking rights in the said area measuring 8' x 22' in the Stilt.
5) It is averred that the defendant no.2 further represented to have sold the Upper Ground Floor of the said property to the defendant no.1 and Third floor of the said property was retained by the defendant no.2. Thus, the defendant no.1 is the sole and absolute owner of the Upper Ground Floor of the said property and the defendant no.2 is the sole and absolute owner of Third Floor of the said property with their respective one two wheeler common parking rights in the remaining portion measuring 10.6 x 22' of Stilt after demarcating the common parking area measuring 8' x 22' in the Stilt meant exclusively for plaintiffs and the area measuring 3'x 22 for common staircase, passage and entrance meant for the plaintiffs as well as for the defendants as mentioned in Clause/Para no.12 of both the Sale Deeds executed in favour of plaintiffs.
6) It is alleged that the area measuring 3.5" x 22" from the common parking portion/space of the plaintiffs is forcibly encroached by the defendants. The Lower Ground Floor portion/Stilt floor of the suit the premises having their respective common parking portions exclusively for the plaintiffs as well as ASHISH Digitally signed by ASHISH Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR KUMAR MEENA Date: 2023.10.31 MEENA 16:29:49 +05'30' Page 4 of 32 for the defendants and the area measuring 3'x 22' for common staircase, passage and entrance meant for the plaintiffs as well as for the defendants. It is also stated that the area of staircase is not included in the area of plaintiff's parking admeasuring 8"X22".
7) It is alleged that the defendants had expressed their desire and informed the plaintiffs that they wanted to convert their common parking portion situated at the lower ground floor into a commercial premises for commercial purposes to which the plaintiffs raised their objection and informed the defendants that no commercial activities can be carried out at any portion of residential building.
8) It is averred that in the last week of July, 2019 the defendants suddenly demolished the demarcating wall situated at the suit property for the purpose of dividing the common parking space of the plaintiffs (measuring 8'x 22) from the common parking space of the defendants (measuring 10.6" x 22") in the absence of plaintiffs as the plaintiffs were away at their native place for some time and the defendants further raised the dividing/demarcating wall by encroaching the parking space measuring 35" X 22 of the plaintiffs in their absence as shown in red Colour in the site plan.
9) It is the case of the plaintiffs that on 07/08/2019, plaintiffs returned to Delhi and they were shocked to see the encroachment in their parking space. The plaintiffs immediately contacted the defendants and requested them to demolish the new dividing/demarcating wall but the plaintiffs were warned for dire consequences in case of any complaint is made by the plaintiffs against the defendants. The defendants also expressed their desire for converting their common parking space into a center of ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:29:59 +05'30'
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commercial activities; however, the plaintiffs opposed the said design of the defendants and requested the defendants to put the dividing/demarcating wall at its previous place within a week.
10) It is further averred that on 14.08.2019 at about 7 p.m., the plaintiffs again contacted the defendants and requested them to put the dividing wall at its previous place in the suit property but the defendants categorically refused to leave the encroached area. The plaintiffs have filed site plan. The alleged encroachment of the defendants has been shown in the site plan in Red Color. Resultantly, the present suit lies before this court seeking following relief against the defendants:
A. Pass a decree for permanent injunction thereby restraining the defendants, their associates, agents, assigns and representatives from illegally and forcibly further encroaching the common parking space of the plaintiffs and/or to create a third party interest in the common parking space of the plaintiffs and/or dispossessing the plaintiffs from their common parking space measuring 8' x 22' in the Stilt (Lower Ground Floor) of the suit property meant exclusively for plaintiffs in the built up property bearing Property No.RZ-441-B, Land area measuring 43.8952 Sq. Mtr., viz 52.5 sq. Yds. (21.6" x 22') out of Khasra No. 64/10/2 & 64/15/2, situated in the revenue estate of village Palam, Delhi State Delhi and colony known as Raj Nagar-II, Palam Colony, New Delhi-110077, presently known as Raj Nagar-I, Palam Colony, New Delhi-
110077, as specifically shown in the site plan attached ASHISH Digitally by ASHISH signed KUMAR KUMAR MEENA Date: 2023.10.31 Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
MEENA 16:30:08 +05'30' Page 6 of 32 with the plaint.
B. Pass a decree for Mandatory injunction thereby directing the defendants to restore the encroached parking space (measuring 3.5" X 22') to the plaintiffs by demolishing the new demarcating wall as shown in red colour in the site plan attached herewith and to put the new demarcating wall at its previous place after demarcating the common parking space measuring 8'x 22' of the plaintiffs in the Stilt (Lower Ground Floor) of the suit property in the built up property bearing Property No.RZ-441-B, Land area measuring 43.8952 Sq. Mtr., viz 52.5 Sq. Yds. (21.6" x 22') out of Khasra No. 64/10/2 & 64/15/2, situated in the revenue estate of village Palam, Delhi State Delhi and colony known as Raj Nagar-II, Palam Colony, New Delhi-110077, presently known as Raj Nagar-1, Palam Colony, New Delhi-110077.
11) On receipt of summons, the defendant no.1 appeared before this Court through her Counsel. The defendant no.1 has filed the written statement, which states that she is the sole and absolute owner of the Upper Ground floor of the said property with one two wheeler parking in common parking area measuring 8'x 22' at stilt floor by virtue of registered Sale Deed dated 19.05.2018 registered before Sub-Registrar IX, New Delhi registered on 24.05.2018 vide registration No. 5293 in Book No. 1 vol No. 9562 on Page 160 to 167 and she is also absolute and exclusive owner of separate parking area measuring 14' x 22' at the stilt floor by virtue of registered sale deed dated 05.12.2018 registered before Sub-
ASHISH Digitally by ASHISH signed KUMAR KUMAR Date:
MEENA 2023.10.31 Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
MEENA 16:30:17 +05'30' Page 7 of 32 Registrar IX, New Delhi registered on 27.12.2018 vide registration No. 12198 in Book No. 1 vol No. 9817 on Page 90 to 98. However, the Plaintiffs with their malafide intention want to grab the said portion of common parking as well as the exclusive portion of the Defendant at the stilt floor and therefore, they have concocted a story of their exclusive right over the said common parking area and encroachment over the same by the Defendant no.1.
12) It is further submitted that the Plaintiffs have filed the present suit on false and fabricated ground with the sole motive to harass the defendant no.1 and grab the common parking space and exclusive portion of the defendant no.1 at stilt floor. However, the same is not tenable in the eye of law and liable to be rejected at the threshold as the plaintiffs have failed to file any documents or proof in support their claim.
13) It is submitted that the suit filed by the plaintiff is not maintainable in the eyes of law because the Plaintiffs have not approached the Court with unclean hands and they are guilty of misrepresentation, concealment of material facts and weaving of false story. It is submitted that Plaintiffs have suppressed the material facts. The plaintiff has no right, title or interest in the manner as stated in the plaint; hence, the suit of the Plaintiff is liable to be dismissed with heavy cost.
14) It is submitted that the pleadings of the suit of Plaintiff are self-contradictory and on the sole ground, the present suit is liable to be dismissed at the threshold. It is further submitted that the site plan annexed with plaint is incorrect and wrong and in view same, the present suit is not maintainable and deserves to be dismissed.
ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:30:26 +05'30'
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15) That the present suit is bad for non-joinder of necessary
parties, as the Plaintiffs has not impleaded Sh. Rajeev Sehgal, who was builder and who developed the property in question under collaboration Agreement with the Defendant No.2 and who also dealt with the Plaintiffs for selling the flats at the property in question to the Plaintiffs. It is submitted that there was a collaboration agreement dated 13.11.2014 between Smt. Rashmi Baluja i.e. defendant No. 2 and one Sh. Rajeev Sehgal S/o Sh. R. S. Sehgal and as per same, Sh. Rajeev Sehgal was under obligation to construct a Separate Parking area measuring 14' x 22' at Stilt Floor and common parking area of 8'x 22' on stilt/lower floor, one residential flat on Upper Ground Floor as well as First Floor, Second Floor and Third Floor in the suit property i.e. Property No. RZ 441-B, Land area measuring 52.5 Square Yards out of Khasra No. 64/10/2 & 64/15/12, Raj Nagar-II, (now known as Part-I) Palam Colony, New Delhi- 110077. It is submitted that as per collaboration agreement dated 13.11.2014, one Sh. Rajeev Sehgal, builder, became owner of the First Floor and Second Floor without roof rights of the said property in question (flats of the Plaintiffs) and he dealt and negotiated with the plaintiffs regarding the sale of the flats to the Plaintiffs and therefore, he is necessary party to present suit. Therefore, present suit is not maintainable due to non- joiner and misjoinder of the necessary parties.
16) Defendant no.1 has submitted that the contents of the plaint are wrong and false, hence, denied. It is submitted that the suit 8"X22" is the common parking area for all the residents, which also includes the dimensions of the common staircase. It is submitted the defendant no.1 has already purchased the other part of stilt portion 14"X22" from the defendant no.2. It is submitted ASHISH Digitally signed by ASHISH Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:30:34 +05'30'
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that the suit of the plaintiff be dismissed.
17) On receipt of summons, the defendant no.2 appeared before this Court through her Counsel. The defendant no.2 has filed the written statement, which states the present suit filed by the plaintiffs is false, frivolous, concocted, vexatious and misconceived. In fact, the grounds raised by the plaintiffs in the present suit are false and without any credence or basis. Further, that the plaintiff has not come to this Court with clean hands and has suppressed the actual material facts. The plaintiff has no right, title or interest in manner as stated in the plaint; hence, the plaintiff is not entitled to any relief from this Court.
18) It is submitted that the defendant no.2 is the sole and absolute owner of the third floor of the property bearing no. RZ- 441-B, Gali no 2, Raj Nagar-1, Palam Colony, New Delhi-77. It is submitted that the lower ground floor/parking i.e the stilt floor is divided into two portion area of one portion is 14' 22' and area of another portion is 8' 22". It is mentioned that the area measuring 14"22' on stilt floor was sold by defendant no.2 to the defendant no.1 by virtue of registered sale deed on 05/12/2018 later registered on 27/12/2018.
19) It is denied that the defendant no.2 approached the plaintiffs that she along with defendant no.1 wants to convert lower ground floor/parking into commercial premises as the same has been sold to the defendant no.1. It is further submitted that the Plaintiffs with their malafide intentions are just harassing the defendant to achieve their illegal motive to grab the common parking space which is nowhere written in any sale agreement that they are the joint owners of the common parking area measuring 8'X22'. It is ASHISH Digitally by ASHISH signed KUMAR KUMAR MEENA Date: 2023.10.31 Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
MEENA 16:30:43 +05'30' Page 10 of 32 submitted the plaintiff no.1 wanted to purchase the separate parking area of 14' 22' from the defendant no.2, but when she sold the same to defendant no.1, the plaintiffs started using unjustified tactics to harass the defendant no.2.
20) It is further submitted that the pleadings of the suit of plaintiff are self-contradictory and on the sole ground, the present suit is liable to be dismissed at the threshold and the site plan annexed with plaint is incorrect and wrong and in view of same, the present suit is not maintainable and deserved to be dismissed.
21) It is submitted that the suit premises is well constructed as per the collaboration agreement dated 13/11/2014 between defendant and Sh. Rajeev Sehgal and as per the same, the separate parking area measuring 14"X22' at stilt floor and common parking area of 8'X22' on Stilt/lower floor is constructed with upper ground, first, second and third floor.
22) It is further stated that the plaintiffs have failed to file any documents or proof in support of their claim and in the absence of the same, the plaintiff are not entitled to any relief. Hence, no cause of action ever arose in favour of the plaintiffs and against the defendant no.2 for filing the present suit.
23) Replications to the written statement filed by the defendant no.1 and defendant no.2 respectively have been filed by the plaintiff, in which the plaintiffs reiterated the averments of the plaint and denied the contents of written statement filed by both the defendants.
24) On completion of pleadings, following issues were framed ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:30:52 +05'30'
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by the Ld. Predecessor of this Court on 15.02.2020:
(1) Whether the suit of the plaintiff is bad for non-
joinder of necessary party? ...OPD-1.
(2) Whether the suit of the plaintiff is without any cause of action? OPD.
(3) Whether the plaintiff has filed the present suit on an incorrect site plan? ...OPD.
(4) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? ...OPP.
(5) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? ...OPP.
(6) Relief. 25) The plaintiff has examined two witnesses on his behalf i.e
Plaintiff no.1 as PW-1 and Plaintiff no.2 as PW-2. The plaintiff no.1/PW-1 has tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon 1) Copy of Sale deed dt. 26.10.2015 registered on 30.10.2015 (Ex.PW1/1 (OSR), 2) Copy of property tax receipt of Rs.10,955/- Ex.PW1/2(OSR), 3) Copy of online generated print out of electricity bill in the name of plaintiff (Mark A), and 4) Copy of site plan (Ex.PW1/3).
26) Plaintiff no.2/ PW2 Sh. Sunil Kumar has tendered his evidence affidavit as Ex.PW2/A and relied upon (1) Copy of Sale deed dt. 04.11.2016 registered on 09.12.2016 is (Ex.PW2/1), (2) ASHISH Digitally by ASHISH signe Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR Date:
MEEN 2023.10.31 MEENA 16:31:01 +05'3 Page 12 of 32 Copy of property tax receipt of Rs.10,045/- is (Ex.PW2/2), (3) Copy of online generated print out of electricity bill of plaintiff no.2 (Mark A), and (4) Copy of site plan (Ex.PW2/3).
27) Both the witnesses were thoroughly cross-examined by the defendants. Thereafter, the plaintiffs closed their evidence and the defendants were directed to lead defence evidence.
28) The defendant no.1 has examined three witnesses i.e Sh.
Anil Kumar Bagga as DW-1, Sh. Rajeev Sehgal as DW-2 and Sh. Pawan Kumar Pandey Branch Operation Manager, Pitampura Branch, Rohini as DW-3.
29) Sh. Anil Kumar Bagga / DW1 has tendered his evidence by way of affidavit being Ex.DW1/A and he reiterated the contents of the written statement and also relied upon (1) Sale deed dated 19.05.2018 (DW3/1), (2) Sale deed dated 05.12.2018 (Ex. DW1/2), and (3) Copy of collaboration agreement (Ex. DW1/3).
30) Similarly, DW-2/Sh. Rajeev Sehgal has tendered his evidence affidavit Ex.DW2/A and relied upon the documents already exhibited as Ex.DW1/3, Ex.PW1/1 and Ex.PW2/1.
31) Sh. Pawan Kumar Pandey, Branch Operation Manager, Pitam Pura Branch Rohini has been examined by the defendant as DW3, who has brought the summons record i.e., sale deed dt. 23.5.2018, same is Ex.DW3/1.
32) DW-1 and DW-2 were thoroughly cross-examined by the plaintiffs. The defence evidences was closed on behalf of defendant no.1 on 04.02.2023. Defendant no.2 has not led the ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 KUMAR KUMAR Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. MEENA Date: 2023.10.31 MEENA 16:31:11 +05'30' Page 13 of 32 defence evidence and closed the defence evidence on 07.05.2022.
33) Final arguments were heard. Record perused.
34) Ld. Counsel for the plaintiffs has reiterated the averment of plaint in his arguments. Ld. Counsel for the plaintiffs submitted that the suit premises is occupied by four owners and each are having their proportionate right over the land under the suit premises. It is submitted that the both the plaintiffs are having right over 1/4th share over the land on which suit premises is built upon. It is further submitted that the plaintiffs are also having exclusive parking right over the suit parking area of 8' X 22' feet. It is submitted that the defendants have encroached upon 3.5' X 22' feet by erecting a fresh wall towards the portion of parking area of the plaintiffs. It is submitted that the staircase admeasuring 3.5X22 is built right after the parking area and the same not included in the portion of the suit property. It is submitted that initially the defendant no.1 was in the possession of 10.6 X 22' i.e other part of the stilt area, however, the defendants have illegally encroached the suit property by demolishing the previous wall. It is submitted that the plaintiffs have built a new dividing wall and have encroached 3.5 X 22 feet of the suit property. It is submitted that the plaintiffs have successfully proved the pleadings by leading cogent evidence. It was argued that there are multiple contradictions in the statement of witnesses examined by the defendants. It is submitted that the collaboration agreement filed by the defendant no.1 is falsely and fabricated. It is further submitted that the plaintiffs have successfully discharged to onus of proof. Whereas, the defendants have failed to prove their defence. Thus, it is submitted that suit bee decreed in favour of the Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR Date:
2023.10.31 MEENA 16:31:20 +05'30' Page 14 of 32 plaintiffs and against the defendants.
35) Ld. Counsel for the defendant no.1 has submitted that the plaintiffs have failed to prove their case. It is submitted that the averment made in the pleading are inconsistent and the same are not proved. Ld. Counsel for defendant no.1 submitted that the sale deeds, filled by the plaintiffs, are silent regarding the existence of any exclusive right over parking in common parking area admeasuring 8X22 feet. It is submitted that the common parking area 8X22 includes the stair case admeasuring 3.5 X 22. It is submitted that the site plan filed by the plaintiffs is incorrect and the same is not proved. It is submitted that the bald allegation of demolishing and erecting a new wall demarcating stilt area is also not proved. It submitted that the during cross-examination, both the plaintiffs have given contradictory statements. It is submitted that the suit of the plaintiffs is liable to get dismissed due to lack of proper evidence.
36) Ld. Counsel for the defendant no.2 have argued in the same line of arguments placed by the defendant no.1. It is submitted that the plaintiffs have concocted false story and the suit is liable to get dismissed.
37) Final argument arguments were heard. This Court will now proceed to give its findings on each issue in forgoing paragraphs of the Judgement.
FINDINGS ON ISSUE NO.1
38) The burden to prove Issue No.1 is upon the defendant no.1. The defendant no.1 was bound to prove that Sh. Rajeev Sehgal is Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date:
2023.10.31 MEENA 16:31:29 +05'30' Page 15 of 32 the necessary party in the suit. It contended by defendant no.1 that Sh. Rajeev Sehgal have constructed the suit premises and the plaintiffs have purchased their respective unit/flat from Sh. Rajeev Sehgal. It is submitted that the plaintiffs have not impleaded Sh. Rajeev Sehgal as co-defendant. Thus, the suit liable to be dismissed for non-joinder of necessary party.
39) During P.E, the plaintiffs have filed their title documents. The title document of Plaintiff no.1 is Ex.PW1/1 and the title document of the plaintiff no.2 is Ex. PW1/2. Mere perusal of title documents reveals that the plaintiffs have purchased second floor and third floor of the suit premises from the defendant no.2.
Thus, it is clear that the plaintiffs have purchase their respective portion of suit premises from the defendant no.2. Further, as per the evidence led by the defendant no.1, it is proved that the Sh. Rajeev Sehgal has only constructed the suit premises in terms of the collaboration agreement Ex. DW1/3. Hence, it is also clear that Sh. Rajeev Sehgal is neither a necessary party nor a proper party in the present suit.
Hence, in view of above discussion, the Issue No.1 is decided against the defendant no.1 and in favour of the plaintiffs.
FINDINGS ON ISSUE NO.2
40) The burden to prove Issue No.2 is upon both the defendants. The defendants are bound to prove that the suit of the plaintiffs is devoid of cause of action.
41) The expression "cause of action" has acquired judicial settled meaning. The cause of action consists of bundles of facts Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date:
2023.10.31 MEENA 16:31:38 +05'30' Page 16 of 32 which give cause to enforce the legal injury for redress in a court of law. The cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. The expression "cause of action" implies bundle of facts which the plaintiff must prove in order to entitle him to a judgment in his favour by the court. Whether any part of cause of action has accrued within the jurisdiction of a Court would depend upon the facts and circumstances of the given case. It was held in the case of State of Rajasthan & Ors. V M/s. Swaika Properties & Anr., 1985 (3) SCC 217, that the "cause of action" is the bundle of facts which gives the plaintiff a right to relief against the defendant.
42) In case of South-East Asia Shipping Co.Ltd. V Nav Bharat Enterprises Pvt. Ltd. & Ors., (1996) 3 SCC 443, it was held that the primacy has to be given to the place where the cause of action has in fact arisen. Cause of action must include some act done by the defendant which gives the plaintiff the right to claim relief. It was held as under: -
"It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 KUMAR 2023.10.31 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
Date:
MEENA 16:31:47 +05'30' Page 17 of 32 act no cause of action would possibly accrue or would arise."
43) In present case, the plaintiffs have specifically pleaded in the plaint that cause of action to file the present suit arose against the defendants in first week of July, 2019, when the defendants demolished the previous demarcating wall at a new place and erected a new wall by encroaching the portion of the exclusive parking area of the plaintiffs. It further arose on 07.08.2019, when the defendant refused to pay heed to the request of the plaintiffs to restore the dimensions of the demarcating wall. In present suit, the case of the plaintiffs is three-fold i.e (i) the plaintiffs have exclusive parking right over the stilt portion admeasuring 8' X 22',
(ii) the parking area 8' X 22' does not include the dimensions of the common stair case 3.5' X 22, and (iii) the defendants have demolished previous demarcating wall and have constructed a new wall thereby encroaching the parking area of the plaintiffs. Therefore, the plaintiffs have challenged the denial of exclusive parking rights measuring 8' X 22' by the defendants. Thus, in view of this Court, the present suit is not devoid of cause of action.
Hence, in view of above discussion, the Issue No.2 is decided against the defendants and in favour of the plaintiffs.
FINDINGS ON ISSUE NO. 4 & 544) Both, Issue No.4 & Issue No.5 are being taken up and decided together as they interconnected and to avoid repetition of facts. The burden to prove said issues is upon the plaintiffs. The Plaintiffs are required to prove that they are entitled to the decree of permanent injunction for restraining the defendants from ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:31:57 +05'30'
Page 18 of 32
creating third party interest in common parking area and from using the common parking area of the plaintiffs. The plaintiffs are also bound to prove that they entitled to decree of mandatory injunction thereby directing the defendants to restore the encroached parking space admeasuring 3.5' X 22' to the plaintiff by demolishing the new demarcating wall.
45) The plaintiffs have contended that they purchased the property vide separate sale deed from the defendant no.2 with one two-wheeler parking each in the parking area situated at stilt floor admeasuring 8' X 22 Feet/Suit Property. It is submitted that the defendant no.2 has transferred the exclusive parking right of the suit property to the plaintiffs. It is submitted that the stilt floor has two portions, out of which one (i.e suit property) is exclusively reserved for the plaintiffs for parking purposes and other is in the possession of the defendants. The other remaining part of the stilt floor is admeasuring 10.6' X 22' Feet. Both portion of stilt floor portion was divided by the demarcated wall, but the same has been demolished by the defendants. It is further submitted that the remaining portion of 3.5' X 22 Feet of the stilt floor consist of common stairs, which is being used by all the resident of the suit premises. The said common stairs is adjacent to the suit property. The plaintiffs have submitted that the area of the common stairs is not included in the area of the suit property. It is further submitted that the defendants have demolished the wall demarcating the stilt floor. It is alleged that the defendants have erected the new demarcating wall by encroaching 3.5' X 22' of the suit property. The defendants, initially, had the possession of other portion of stilt floor admeasuring 11.6' X 22', but after the said encroachment, the defendants are now in the possession of area of Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date:
2023.10.31 MEENA 16:32:07 +05'30' Page 19 of 32 14' X 22'. Thus, in view of this pleading of the plaintiffs, they are required to prove following facts:
A. The plaintiffs have exclusive parking right over the stilt floor admeasuring 8' X 22' Feet/Suit property.
B. The defendants have demolished the original wall demarcating the stilt floor and have erected a new demarcating wall by encroaching 3.5' X 22' of the suit property.
C. The said suit property admeasuring 8'X22' does not include the dimensions of the stair case admeasuring 3.5' X 22 Feet.
46) Findings on Point A: In support of their claim, the plaintiffs have examined themselves and have filed their title documents.
Plaintiff no.1 / PW-1 has produced the title document i.e Ex. PW1/1. On perusal of said sale deed Ex. PW1/1, it reveals that the plaintiff no.1 has purchased First Floor without roof right of the suit premises with proportionate and free-hold rights of the land under the suit premises with common one two-wheeler parking right in the area of the 8'X22' feet in the stilt.
47) Similarly, Plaintiff no.2/PW-2 has produced the title document in evidence i.e Ex. PW2/1. On perusal of said sale deed Ex. PW2/1, it reveals that the plaintiff no.2 has purchased Second Floor without roof right/terrace right of the suit premises with proportionate and free-hold rights of the land under the said property with common one two-wheeler parking right in the area of the 16.36 Sq. Mtr (8'X22') in the stilt.
ASHISH Digitally
by ASHISH
signed
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:32:16 +05'30'
Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
Page 20 of 3248) The plaintiffs have repeatedly contended that they have exclusive joint right over the suit property. Whereas, sale deed of the both the plaintiff is absolutely silent regarding existence of such exclusive right. As per Ex. PW1/1 and Ex. PW2/1, the plaintiffs have been given right to park one two-wheeler vehicle in the common parking area. The term mentioned in both deeds i.e, "with one common one two-wheeler parking right in the area of the 8'X22' in the stilt" is very relevant to the present case. The title documents of the plaintiffs are contradictory to claim made by them in relation to the parking right. The said sale deed(s) does not contain any express term recognizing the exclusive right of the plaintiffs in the suit property, rather it only provides for the right of parking of one two-wheeler in common parking area admeasuring 8' X 22' in the stilt floor. The sale deeds of the plaintiffs itself provides that the parking area/suit property is the common parking area for the residents of the suit premises.
49) Furthermore, during cross-examination, the plaintiff no.1/PW-1 was put to the specific question i.e "is there any document/sale deed which states that the parking area admeasuring 8 X 12 Feet is exclusively owned by him and plaintiff no.2"? to which PW-1 stated that he was told that the parking is 8 X 22 is common area to be shared by the him and plaintiff no.2 only. Whereas, the plaintiff no.2/PW-2 stated that he has a document which proves the exclusive ownership of the plaintiffs in area 8' X22' feet. However, there is no other document on record asserting the existence of such exclusive right of the plaintiff over the suit property.
50) Furthermore, the Para 1 of the replication filed by the ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR KUMAR MEENA Date: 2023.10.31 MEENA 16:32:26 +05'30' Page 21 of 32 plaintiffs to the written statement of defendant no.1 states that "it is submitted that the defendant no.2 had assured to the plaintiffs at the time of the sale of the First Floor and the Second Floor to them that the common one two-wheeler parking right in the area measuring 8' X 22' in the stilt (Lower Ground Floor) were exclusively meant for the plaintiffs only and the plaintiffs were given the exclusive common parking right in the said area measuring 8' X 22' in the stilt". Here, the plaintiffs are trying to lead the oral evidence to prove the existence of additional oral agreement between the parties to the sale deed. However, as per the policy of Section 91 and Section 92 of the Indian Evidence Act, 1872 ("ACT"), the plaintiffs are not allowed to lead evidence of any oral agreement or any oral statement. The abovementioned Section 91 & Section 92 of the Act states that:
Section 91: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Section 92: When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.KUMAR Date:
2023.10.31 MEENA 16:32:35 +05'30' Page 22 of 32 of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
51) In present case, the plaintiffs have relied upon the registered sale deed, which provides for the common parking right in the suit property. However, the said registered deed does not identify the exclusive parking right of the plaintiff in the suit property. Further, the plaintiffs are also not allowed to prove the existence additional oral agreement regarding exclusive ownership over the suit property as the same is barred under section 92 of the Act.
Furthermore, the case of the plaintiffs does not fall within any proviso of the Section 92 of the Act. Therefore, the said plea of the plaintiffs that the defendant no.2 orally assured the plaintiffs that the suit property is exclusively meant for parking of the plaintiffs is not legally tenable.
52) Further, Ld. Counsel for the plaintiffs during final argument has contended that plaintiffs are having proportionate right over the land situated under the suit premises. It is correct the Ex. PW1/1 and Ex. PW1/2 provides the proportionate right of land under the suit premises to the plaintiffs. However, the right over built-up property cannot be compared with proportionate right of land of the suit premises, especially when such rights over built- up property have already been transferred, assigned, relinquished and limited by way of written contract. The said proportionate right on land beneath the suit premises becomes relevant only Digitally when the whole suit premises is subjected to total destruction or signed by ASHISH ASHISH KUMAR KUMAR MEENA Date:
Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. MEENA 2023.10.31 16:32:44 +05'30' Page 23 of 32 shareholder of the lands decides to partition the land. Therefore, the suggestions given the by Ld. Counsel for the plaintiffs to the witnesses of the opposite party regarding right in the suit premises land becomes irrelevant and the same does not prove the existence of the exclusive right of the plaintiffs over the suit property.
53) It is further to be noted that that the defendant no.1 has filed the sale deed dated 19.05.2018 i.e., Ex. DW3/1. As per the said sale deed, the defendant no.1 purchased the upper ground of the suit premises from the defendant no.2 without roof rights, duly fitted with water and electric connection therein, with common rights of entrance, gate, staircase and passage, alongwith all other common facilities therein, alongwith one two-wheeler parking in the common parking area 8'X 22 at stilt floor with proportionately rights of land there under, which is part of the suit premises. The said deed Ex. DW3/1 was duly registered on 24.05.2018 by the concerned authority. Ex. DW3/1 also proves that the plaintiffs are not having the exclusive parking right in suit property. It is also to be noted that the said sale deed is clearly raising the doubts over the existence of exclusive parking right of the plaintiff in the suit property. However, the plaintiffs are not seeking any relief of declaration against the said sale deed.
54) Thus, in view of above discussion, the plaintiffs have failed to prove that they have exclusive right over the parking area admeasuring 8' X 22' feet situated at the stilt floor/suit property.
55) Finding on Point B & C: It is contended by the plaintiffs that the original status of stilt floor has been changed by the defendants. Originally, the plaintiffs were in the possession of suit property admeasuring 8' X 22' Feet and the defendants were in the ASHISH Digitally by ASHISH signed Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR KUMAR MEENA Date: 2023.10.31 MEENA 16:32:53 +05'30' Page 24 of 32 possession of the 10.6 X 22' Feet of the stilt floor. Both portion of stilt floor was divided by the demarcating wall. Whereas, in remaining portion of 3.5 X 22' feet are the stair case situated next to the suit property/common parking area.
56) As alleged, in last week of July, 2019 the defendants suddenly demolished the said demarcating wall in the absence of plaintiffs as the plaintiffs were away at their native place for some time and the defendants further raised the dividing/demarcating wall by encroaching the parking space measuring 3.5" X 22 of the plaintiffs in their absence as shown in red Colour in the site plan Ex. PW1/3.
57) On contrary, the defendants have submitted that the stilt floor are divided into two portions. One portion is Separate parking area measuring 14' X 22' belonging to the defendant no.1 and other is the suit property 8' X 22' Feet, which is common parking for all the residents. It is submitted that the portion of the staircase is also included in the portion of the suit property.
58) As discussed above, the Ex. PW1/1, Ex. PW2/1 and Ex.
DW3/1 is devoid of any express term which shows that the portion of the common stairs are not included in the portion of the suit property. Thus, the said agreement reflects ambiguity regarding the location and dimensions of the common stairs. The clause 12 of Ex. PW1/1 & Ex. PW1/2 only states that staircase, passage, entrance and sewer connection of the suit premises is common for the all the residents. Hence, the plaintiffs were duty bound to lead circumstantial evidence to prove that the common staircase area is not the part of the portion of the suit property. Similarly, the plaintiffs were also bound to put forth evidence regarding ASHISH Digitally signed by ASHISH Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR KUMAR MEENA Date: 2023.10.31 MEENA 16:33:02 +05'30' Page 25 of 32 demolition of demarcating wall and alleged encroachment.
59) However, apart from Ex. PW1/1, Ex. PW2/1 and site plan Ex. PW1/3, the plaintiffs have not filed any relevant documentary evidence. On other hand, the defendant no.1 has filed Ex DW1/2, Ex. DW1/3 & Ex. DW3/1 to prove that the defendants have never demolished the said demarcating wall and the common stairs are included in the area of common parking/suit property.
60) It is a matter of record that the defendant no.1 purchased Upper Ground Floor without roof right alongwith one two-wheeler parking right in the common parking area from the defendant no.2 through a registered sale deed i.e, Ex. DW3/1. The said sale deed was executed on 19.05.2018 and got registered on 24.05.2018. Further, the defendant no.1 also purchased the other portion of the stilt area admeasuring 14' X 22' feet from the defendant no.2 through a registered sale deed i.e, Ex. DW1/2. It was executed on 03.12.2018 and was registered on 27.12.2018. Vide Ex. DW1/2, the defendant no.1 purchased the western side portion of stilt area (other portion of the stilt) admeasuring 34.22 Sq. Yds (14' X 22') of the suit premises from the defendant no.2. Ex. DW1/2 also acknowledges that the defendant no.1 has already purchased the Upper Ground Floor with one two-wheeler parking in common area/suit property from the defendant no.2. On other hand, the plaintiffs have alleged that after alleged demolition of original wall and erection of a new demarcating wall in the month of July 2019, the defendants are now in the possession of the 14' X 22' of stilt floor. Whereas, the Ex. DW3/1 and Ex. DW1/2, which are executed in 2018, clearly acknowledges that the said demarcating wall is dividing 8' X 22' and 14' X 22' of the stilt floor. It also ASHISH Digitally signed by Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR ASHISH KUMAR MEENA
Date: 2023.10.31 16:33:11
+05'30'
MEENA
Page 26 of 32
asserts that the said wall was constructed by Sh. Rajeev Sehgal and the same is standing since the inception of the construction of the whole suit premises. The said documents clearly cast doubt on the averments made in the plaint.
61) In view of this Court the defendant no.1 has also successfully prove the execution and the content of Ex. DW1/2 and Ex. DW3/1. The said documents were tendered by Sh. Anil Kumar Bagga/DW-1 (Husband of the defendant no.1) in his evidence. The witness DW1 was thoroughly examined by the plaintiffs. During cross-examination, no question has been put to the witness by the plaintiffs to check veracity of the said documents. Moreover, DW-1 Sh. Anil Kumar Bagga is the witness to the Ex. DW3/1 and Ex. DW1/2. The defendant no.2 has not denied the content thereof. Further, the Ld. Counsel for the plaintiffs submitted that the defendant no.2 has no right to sell the other portion of the stilt floor measuring 14' X 22' to the defendant no.1. However, the plaintiffs, despite knowledge of the said documents, are not seeking any relief against the terms of Ex. DW3/1 and Ex DW1/2. Thus, the documents Ex. DW3/1 and Ex. DW1/2 stands proved.
62) Further, it is contended by the Ld. Counsel for the defendant no.1 that the suit premises was constructed by Sh. Rajeev Sehgal in terms of collaboration agreement executed between the defendant no.2 and Sh. Rajeev Sehgal. The defendant no.1 has filed the said collaboration agreement i.e, Ex. DW1/3. In order to prove the content of the Ex. DW1/3, the defendant no.1 has examined Sh. Rajeev Sehgal as DW-2. As per the evidence affidavit of DW-2 and Ex. DW1/3, Sh. Rajeev Sehgal entered into Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.10.31 MEENA 16:33:21 +05'30' Page 27 of 32 a collaboration agreement dated 13.11.2014 with the defendant no.2. As per agreement and understanding, he constructed the suit premises from stilt/LGF in two parts i.e 14' X 22' a separate portion and 8 X 22 for common two-wheeler parking area for the occupants/owner of the flats. The 8' X 22' area was common for flat owners for passage and common two-wheeler parking and also stair case was made in the said area of 8X22. The said two portions at stilt were duly demarcated by putting a wall in between both the portions. Apart from stilt floor, he also constructed other floors of the suit premises. Further, Clause 8 of the agreement states that Separate parking area 14' X 22' on the stilt floor, Upper Ground Floor and Top Floor with roof rights of the suit premises shall remain in the possession of the defendant no.2. It was also agreed that on completion of construction, Sh. Rajeev Sehgal will be entitled to sell the portion of the Second Floor and Third Floor, but the defendant no.2 never executed any sale deed in favour of Sh. Rajeev Sehgal. Further, the record shows that the defendant no.2 sold the Second floor and Third floor to the plaintiffs.
63) It is to be noted that the during cross-examination, version of DW-2 has remained intact and proved. During cross- examination, DW-2 has stated that he constructed the suit premises as per the instruction by the defendant no.2 and in terms of the collaboration agreement. He admitted that the positioning and location of both the parking are not mentioned in the collaboration agreement, but the same was already constructed by him before the plaintiffs purchased the property. He admitted that the stilt has two portion i.e 8 X 22' and 14' X 22' feet. At this stage, it is relevant to quote the exact admission of the witness. He stated that "It is correct that collaboration agreement Ex. DW1/3 clearly ASHISH Digitally signed by ASHISH Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:33:30 +05'30'
Page 28 of 32
mentions the two separate parking are in the stilt portion". It is again to be noted that the said suggestion has been given by the Plaintiffs. Thus, it is also proved that Sh. Rajeev Sehgal constructed the suit premises with stilt floor in two portion i.e common parking area measuring 8 X 22' and separate parking area 14 X 22'.
64) Further, the plaintiffs have challenged that DW-2 is not possessing the license or skills for construction of the suit premises. However, the plaintiffs, during cross-examination, put the suggestions to DW-2 regarding renovation of property of the plaintiffs, to which DW-2 admitted that the he has renovated the property of the plaintiffs. Such admission of DW-2 only reflects that the he is involved in the business of constructions of the buildings. He further explained that the water motors are installed beneath stairs in the area of 8' X 22' feet and he also constructed the wall demarcating two portions of the stilt floor. Thus, DW-2 also proves that the common stairs form the part of the common parking area/suit property.
65) It is pertinent to mention that plaintiffs have contended that the defendant no.2 and Sh. Rajeev Sehgal have falsely created Ex. DW1/3 collaboration agreement after institution of the present suit so as to defeat the rights of the plaintiffs and to grab the portion of suit property. However, the plaintiffs have remained unsuccessful to prove that the said document is false and fabricated. The plaintiffs have not filed any other documentary evidence to prove the actual status of alleged original wall. Plaintiffs have not filed any photographs of the suit property to prove that the defendants erected a new wall in July 2019. Moreover, there is a clear Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date:
2023.10.31 MEENA 16:33:40 +05'30' Page 29 of 32 contradiction in the statement of the plaintiffs. The plaintiff no.1 states that the they were not present in Delhi at the time of demolition of old wall and erection of new wall. Whereas, PW- 2/Plaintiff no.2 states that his wife was present at the time of demolition and she informed him telephonically regarding the said incident. PW-2 also stated that she also tried to stop the destruction of wall. It is to be noted that the wife of the plaintiff no.2 has not been examined by the plaintiffs before the Court. Further, PW-1 in his cross examination has stated that plaintiff no.2 does not stay his property rather he is the resident of Village Indrath Khurd, Bihar. The said contradictions found in the statement of the plaintiffs, make the statement of PW-2 highly doubtful.
66) Furthermore, the question of arrangement between defendant no.2 and Sh. Rajeev Sehgal regarding sale and purchase of the second & third floor portion is irrelevant to this Case. The most relevant aspect of the collaboration agreement (Ex. DW1/3) is the date of execution i.e 13.11.2014. The plaintiffs have claimed that the original demarcating wall divided stilt portion in two portion i.e 10.6 X 22' Feet on one side and 8 X 22' and 3.5X 22' (Common stairs) the other side. The plaintiffs have also contended that the said wall was demolished by the defendants in July 2019 by encroaching 3.5 X 22' feet of suit property. However, in view of this Court, Ex. DW1/2 read with Ex. DW3/1 and Ex. DW1/3 acknowledges the existence dimensions of the other stilt area as 14' X 22' Feet. It also acknowledges that the stilt portion area was built and divided into two portion i.e 8' X 22' and 14' X 22' feet prior to the July 2019 i.e the month of alleged demolition of demarcating wall. The plaintiffs have not filed any evidence to prove that the content of the Ex. DW1/2, DW1/3 and DW3/1 are Digitally signed ASHISH byKUMAR ASHISH MEENA Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr. KUMAR Date:
2023.10.31 MEENA 16:33:49 +05'30' Page 30 of 32 false and the same created after filing of the present suit. Ex. DW3/1 & Ex. DW 1/2 executed in 2018, and Ex. DW1/3 executed in 2014 have casts doubt to claim of the plaintiff regarding demolition of demarcating wall and encroachment. However, the plaintiffs have failed to substantiate their claim due to lack of cogent evidence to prove that the wall was ever demolished by the defendants. Therefore, it is established that other portion of stilt floor is measuring 14' X 22' Feet and the same already been transferred to the defendant no.1 by defendant no.2. It is to be noted that the total area of stilt floor is 22 feet. Thus, it is also clear that area of common parking/suit property is 8' X 22' feet. During cross-examination, the plaintiffs have admitted that the there is one common gate for accessing the suit premises situated at the stilt portion of the common parking area. It is also admitted that the common stairs can only be accessed from common parking area/suit property. Thus, it is self-explanatory that common stairs (3.5 X 22) are the part of the common parking area (8' X 22').
67) Therefore, the plaintiffs have failed to prove that defendants have demolished the original wall demarcating the stilt floor and have erected a new demarcating wall by encroaching 3.5' X 22' of the suit property. The Plaintiffs also failed to prove that the suit property admeasuring 8'X22' does not include the dimensions of the stair case admeasuring 3.5' X 22 Feet. Further, the plaintiffs have also failed to prove that the suit property measuring 8' X 22' is their exclusive parking area in the stilt floor.
Hence, in view of above discussion, the Issue No.4 and Issue No. 5 are decided against the plaintiffs and in favour of the Defendants. Digitally signed ASHISH byKUMAR ASHISH MEENA KUMAR Date:
2023.10.31 Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.MEENA 16:33:58 +05'30' Page 31 of 32 FINDINGS ON ISSUE NO.3
68) The burden to prove Issue No.1 is upon the defendant no.1.
The defendant no.1 was bound to prove that the site plan (Ex. PW1/3) filed by the plaintiff is incorrect.
69) It is to be noted that the primary duty to prove the content of the site plan (Ex. PW1/3) lies upon the plaintiffs. The plaintiffs have contended that the defendants have erected a new demarcating wall by encroaching 3.5 X 22' feet of the suit property. The said encroachment is shown in the site plan as red Colour. However, as discussed above, the plaintiffs have failed to prove their averments. The plaintiffs have failed to prove that suit property measuring 8' X 22' is exclusive parking area of the plaintiffs. The factum of demolition of old wall and erection of new wall is also not proved. Further, the plaintiffs have also failed to prove that common stair area is not forming the part of common parking area/suit property. Thus, the site plan filed by the plaintiffs is also not proved. Further, the plaintiffs have not examined the draughtsman (Civil), who traced and created the said site plan. Moreover, the mere perusal of the site plan shows that the dimensions mentioned therein are incorrect.
70) Therefore, in view of above discussion, the defendant no.1 has remained successful to prove that the site plan (Ex. PW1/3) is incorrect. Accordingly, Issue No. 3 is decided in favour of the defendant no.1 and against the plaintiffs.
71) RELIEF: The issue no.1 and 2 are decided against the defendants. Whereas, the issue no.3 is decided in favour of the defendant no.1. However, the main issue no. 4 and 5 are decided ASHISH Digitally signed by ASHISH Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.
KUMAR KUMAR MEENA
Date: 2023.10.31
MEENA 16:34:08 +05'30'
Page 32 of 32
against the plaintiffs and in favour the defendants. Thus, the plaintiffs are not entitled to any relief in the present suit.
72) In view of the findings given on issues no.1 to 6, documents placed on record, pleadings of the parties and evidence available on record, the plaintiffs have failed to prove their case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiffs seeking permanent and mandatory injunction is dismissed.
73) Decree sheet be prepared accordingly. Parties to bear their own cost.
74) File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN COURT ON 31.10.2023
Digitally signed by ASHISH
ASHISH KUMAR MEENA
KUMAR MEENA Date: 2023.10.31 16:34:17
+05'30'
(ASHISH KUMAR MEENA)
CIVIL JUDGE-01(SOUTH-WEST)
DWARKA COURTS, NEW DELHI
IT IS CERTIFIED THAT THE PRESENT JUDGMENT
RUNS INTO THIRTY-TWO PAGES AND EACH PAGE
BEARS MY SIGNATURE. ASHISH Digitally signed by
ASHISH KUMAR MEENA
KUMAR Date: 2023.10.31
MEENA 16:34:26 +05'30'
(ASHISH KUMAR MEENA)
CIVIL JUDGE-01(SOUTH-WEST)
DWARKA COURTS, NEW DELHI
Civil Suit No. 960/19 Sh. Satish Kumar Tiwari & Anr. Vs. Smt. Anita Bagga & anr.