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Delhi District Court

Sh. Laxman Singh vs Sh. Sunder Lal on 20 September, 2019

           IN THE COURT OF SH. MAYANK GOEL: CIVIL JUDGE­09
                  CENTRAL: TIS HAZARI COURTS : DELHI

CS No. 94469/16

Sh. Laxman Singh,
S/o Sh. Kishan Lal,
R/o 2062/2, 2nd floor,
Basti Peepalwali,
Sadar Bazar, Delhi­110006.                                           ......Plaintiff
                                              Vs.

Sh. Sunder Lal,
S/o Sh. Kishan Lal,
R/o 2062/2, Ist Floor,
Basti Peepalwali,
Sadar Bazar, Delhi­110006.                                           ......Defendant

                                              JUDGMENT

SUIT FOR PERMANENT AND MANDATORY INJUNCTION Date of institution : 03.09.2011 Date of decision : 20.09.2019 Final Order : Dismissed Brief Facts

1. The factual matrix of the present case is that the suit property bearing no. 2062/2, Basti Peepal Wali, Sadar Bazar, Delhi­06 is an ancestral property of the parties which is in the name of Late Sh. Kishan Lal, the father of the parties which consist of three story building i.e. ground, first and second floor. That the plaintiff and the defendant are real brothers. That the plaintiff is residing on the second floor of the suit property with his family and defendant is residing on the first floor of the suit property with his family. That there is only one latrine in the suit property on the ground floor which is being commonly used by the parties to the present suit since their birth. That the said latrine had been constructed by the father of the parties along with the entire building. That the defendant ________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 1 of 9 has put water­cooler and washing machine at the staircase on the first floor of the suit property on 30.07.2011 with the object to cause hardship to the plaintiff and his family members in using the staircase. That the water­cooler is very old and is giving electricity current which create more hardship to the plaintiff and his family members to use the passage and the staircase due to fear of electrocution. That the plaintiff has requested the defendant several times to remove the water­cooler and the washing machine but the defendant did not pay any heed to the same. Moreover, the defendant has put a condition upon the plaintiff to withdraw the partition suit which is pending before the court of Ld. Civil Judge, Delhi bearing suit no. 178/78 titled as "Chander Kala Vs. Kanhiya Lal".

That on 24.08.2011, the plaintiff at about 8:00 a.m., came to the ground floor of the suit property to use the latrine but the defendant has put hindrances to the plaintiff in using the same. That the defendant has given a threat to the plaintiff on 25.08.2011 by saying that the defendant will not permit the plaintiff or his family members to use the latrine in case the plaintiff/plaintiff's wife does not withdraw the suit bearing no. 178/78. That there is an apprehension in the mind of the plaintiff that the defendant can stop or raise obstacles in the use of latrine by the plaintiff or his family members specially the lady members as there is an open threat from the side of the defendant.

2. Summons of settlement of issues were issued to the defendants who appeared and filed his Written Statement along with counter­claim for permanent and mandatory injunction.

3. In the Written Statement and counter­claim, the defendant denied all the averments made by the plaintiff and stated that the latrine was originally constructed and sanctioned and was on the first floor of house no. 2062/2­3, Basti Peepalwali, Sadar Bazar, Delhi­110006 which was also sanctioned by the then Delhi Municipality, Delhi in 1951 building plan and there was no latrine on the ground floor of this house and the latrines are constructed nearby and people of the locality have been using the same which were fourteen for the women and twelve for the men and when Panchayati Dharamshala ________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 2 of 9 property no. 2064 was constructed in 1937 by the people of the locality and a society was constituted for the proper management and upkeep of these latrine and late Sh. Kishan Lal, father of the parties, one of the person doing the aforesaid job. The latrine on the ground floor was got constructed by the defendant, Sh. Sunder Lal in 1992 when he suffered an heart attack in 1992 for himself and for his wife and his daughter who have been continuously using and maintaining the same and has got fixed water and electricity from their own connection/meter and are not allowing any other person nor the plaintiff or his family members to use the same. That the plaintiff illegally raised the wall to block the passage of store room which was being used by the defendant and about half of the passage had been added to the shop of the ground floor increasing the area of the shop run by and occupied by the plaintiff or his son illegally. That the latrine on the ground floor got constructed by defendant is just touching the said wall which is liable to be removed in order to open the passage and the way to the store room. That the plaintiff has also illegally got the door of the staircase closed at the second floor for illegal purpose to prevent and create hindrance to the defendant and using the terrace of the first floor on the second floor which is also liable to be opened/removed. That the plaintiff has no occasion nor there has been any cause for asking for removal of anything as wrongly alleged, even otherwise the plaintiff has no legal right to ask the defendant not to keep a cooler and washing machine which cannot be used by keeping in the stairs leaving the space for coming and going without obstructions. That the plaintiff is illegally trying to usurp some portion of the joint Hindu family property which cannot be allowed in the law. That the suit filed by the plaintiff is frivolous and vexatious and is liable to be dismissed.

4. Thereafter, plaintiff has filed Written Statement to the counter­claim and replication to the WS of defendant denying all the averments made in the counter­claim and written statement of the defendant.

5. Thereafter, defendant has filed replication to the WS of the counter claim denying all the averments made in the WS.

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 3 of 9

6. On the basis of pleading, the following issues were framed by the court vide order dated 25.04.2013 and corrected vide oreder dated 20.09.2019:­

1. Whether the plaintiff is entitled for the relief of Permanent Injunction, as prayed? OPP.

2. Whether plaintiff is entitled for the relief of mandatory injunction, as prayed? OPP.

3. Whether the suit of the plaintiff is filed for non­joinder of necessary party? OPD.

4. Whether the suit of the plaintiff do not disclose any cause of action and liable to be rejected under Order 7 Rule 11 CPC? OPD

5. Whether the Counter­Claimant is entitled for relief of permanent and mandatory injunction as prayed in Clause A and B of the prayer clause of the counter claim? OPD.

6. Whether the Counter­Claim of defendant is time barred? OPP.

7. Whether the Counter­Claim filed by defendant is hit by Order 7 Rule 11 CPC? OPP.

8. Relief.

7. In support of his case, the plaintiff has examined himself as PW1 who has tendered her evidence by way of affidavit Ex PW1/A. In his examination in chief, PW1 mostly reiterated the averments as made in the plaint and relied upon and produced the following documents on record:­

1. Ex PW1/1 is the site plan of the suit property.

2. Ex PW1/2 (colly in 3 sheets) is the certified copy of the affidavit of Sh. Sunder Lal.

3. Ex PW1/3 (colly in 3 sheets) is the certified copy of the Architect Report.

4. Ex PW1/4 (colly in 15 sheets ) is the copy of the certified copy of the judgment passed by Sh. V.K. Jain, the then Ld. ADJ, Delhi.

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 4 of 9

5. Ex PW1/4A (colly in 11 sheets) is the certified copy of the report of Local Commissioner.

6. Ex PW1/5 (colly in 10 sheets) is the certified copy of the plaint along with site plan.

7. Ex PW1/6 (colly in 6 sheets) is the certified copy of the judgment passed by Sh. N.K. Malhotra, the then ASCJ, North, Delhi.

PW1 was duly cross examined by the Ld. Counsel for the defendant and thereafter PE was closed.

8. Thereafter, the defendant has examined himself as DW1, who tendered her evidence by way of affidavit Ex DW1/A. In her examination in chief, DW1 mostly reiterated the averments as made in the WS and relied upon and produced the following documents on record:­

1. Ex DW1/1 is the existing site plan of the suit property.

2. Ex DW1/2 is the copy of the sanctioned site plan.

3. Ex DW1/3 is the copy of the building site plan which has been de­exhibited as the original of the same has not been put on record and the copy of the same has already been exhibited as Ex PW1/X.

4. Ex DW1/4 is the copy of electricity bill dated 04.02.2003 and is now de­ exhibited as the original is not on record and marked as Mark­Y.

5. Ex DW1/5 is copy of water bill dated 02.12.2003. (OSR).

6. Ex DW1/6 is the copy of the Medical Certificate dated 11.10.1994 issued by Dr. RML Hospital, New Delhi which is now de­exhibited as the original is not on record and marked as Mark­Z.

7. Ex DW1/7 is the copy of medical OPD card dated 21.03.1986 issued by Dr. RML Hospital,New Delhi (OSR).

8. Ex DW1/8 is the copy of medical test report dated 16.06.1985 (OSR),

9. Ex DW1/9 is the complaint dated 18.08.1999 made to the Home Minsiter, Govt. of India.

10. Ex DW1/10 is the copy of the details of expenses furnished by Sangwan and ________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 5 of 9 Dayal Associates and is now de­exhibited as the original is not on record and marked as Mark­F1.

11. Ex DW1/11 is the original notice dated 08.04.1954 issued by Medical Officer of Health, DMC, to late Sh. Kishan Lal. I also rely on the document already exhibited as Ex PW1/D­1 which is the original Completion Certificate dated 05.01.1957 in the name of Sh. Kishan Lal.

DW1 was partly cross examined and further cross examination as well as defence evidence was closed vide order dated 29.08.2018 and the court specifically held that the testimony of DW1 being incomplete will not be read/considered as evidence.

9. I have heard the arguments on behalf of both the parties and have carefully gone through the case file.

10. Issuewise findings as follows:­ Issue no. 1 & 2.

These issues have been taken together being connected and can be disposed off through common discussion.

In order to prove these issues, the plaintiff claimed the suit property as an ancestral property and relied upon documents Ex PW1/1 to Ex PW1/6. The plaintiff in the present suit seeks the relief of injunction against the defendant restraining him from creating any kind of obstacle in free and fearless use of common latrine and common passage on the ground floor of the suit property on the ground that the said latrine is being commonly used by both the parties to the present suit since their birth.

The plaintiff has not placed any documentary proof to prove that said latrine was constructed in the year 1957 when the suit property was constructed by father of the plaintiff and the defendant. This fact is also stated by PW1 in his evidence by way of affidavit. But in his cross examination, PW1 deposed that the said latrine was constructed in the year 1985 by his father. At the time of his cross examination, plaintiff is around 67 years old. This shows that PW1 gave contradictory statement in his evidence by way of affidavit and his cross examination.

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 6 of 9 Ex PW1/D1 which is the completion certificate issued by Delhi Municipality to the father of the plaintiff and the defendant and exhibited during the cross examination of PW1 also nowhere shows that the said latrine was constructed on the ground floor of the suit property and when.

Ex PW1/2 (colly three pages) which is relied by the plaintiff and is the certified copy of affidavit of the defendant filed by him in suit bearing no. 178/78 titled as "Smt. Kuntesh Kumari Vs. Sh. Kanhai Lal & Anr." also shows that the said latrine was constructed by the defendant by his own expenses.

Ex PW1/3 (colly three pages) which is relied by the plaintiff and is the certified copy of Architect report also shows that defendant has bear the expenses of making of latrine on ground floor of the suit property.

No other documentary proof has been placed on record by the plaintiff to prove that the said latrine was constructed in the year 1957 when the suit property was constructed by his father. Moreover, no witness has been examined by the plaintiff except himself to prove that the said latrine was constructed in the year 1957 when the suit property was constructed by his father.

Regarding the relief of mandatory injunction, no evidence has been placed on record, moreover, no witness has been examined to prove any obstruction by the defendant in the common passage on the first floor of the suit property.

In view of these fact and circumstance, the issue no. 1 & 2 is decided against the plaintiff and in favour of the defendant.

Issue no. 3 The burden to prove this issue is on the defendant, which had not been fulfilled by the defendant as vide order dated 29.08.2018, the court held that the testimony of DW1 being incomplete will not be read/considered as evidence and defence evidence was closed.

In view of these facts, circumstances and reasons, the issues no. 3 is decided against the defendant and in favour of the plaintiff.

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 7 of 9 Issue no. 4.

The burden to prove this issue is on the defendant, which had not been fulfilled by the defendant as vide order dated 29.08.2018, the court held that the testimony of DW1 being incomplete will not be read/considered as evidence and defence evidence was closed.

In view of these facts, circumstances and reasons, the issues no. 4 is decided against the defendant and in favour of the plaintiff.

Issue no. 5.

The burden to prove this issue is on the defendant, which had not been fulfilled by the defendant as vide order dated 29.08.2018, the court held that the testimony of DW1 being incomplete will not be read/considered as evidence and defence evidence was closed.

In view of these facts, circumstances and reasons, the issues no. 5 is decided against the defendant and in favour of the plaintiff.

Issue no. 6 & 7 Since both the issues are interconnected and can be decided by common discussion, therefore both these issues have been together.

The burden to prove these issues is on the plaintiff. No evidence has been led by the plaintiff to prove these issues, moreover, no witness has been examined by the plaintiff to prove these issues.

In view of these facts, circumstances and reasons, the issues no. 6 & 7 are decided against the plaintiff and in favour of the defendant.

Relief.

9. In view of the aforesaid discussion, the suit of the plaintiff as well as counter­claim of the defendant is hereby dismissed.

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 8 of 9

10. Parties to bear their own cost.

11. Decree sheet be prepared accordingly.

File be consigned to record room after necessary compliance.

Digitally signed by MAYANK GOEL

MAYANK Date: 

                                                          GOEL     2019.09.21
                                                                   10:06:57
                                                                   +0530

Announced in the open court.                              (Mayank Goel)
                                                Civil Judge­09, Central District
                                                   Tis Hazari Courts, Delhi
                                                           20.09.2019

________________________________________________________________________ CS no. 94469/16 Laxman Singh Vs. Sunder Lal Page no. 9 of 9