Delhi District Court
Santosh Kumari Ors vs Sumer Yadav Ors on 20 May, 2025
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
South West District at Dwarka Courts, New Delhi
CS SCJ. 425466/16
CNR No.DLSW03-000219-2015
In the matter of :-
Amended memo of Parties
1. Smt Santosh Kumari
w/o Sh Prem Singh
r/o Flat no. (Upper Ground-01)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
2. Smt. Lali
w/o Sh Mani Ram
r/o Flat no. (Upper Ground)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
3. Smt. Supriya Pal
w/o Sh Samit Pal
r/o Flat no. (Upper Ground-03)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
4. Smt. Sunita Devi
w/o Pradeep Kumar
r/o Flat no. (First Floor Pvt. No. 101)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
5. Sh. Shyam Jeet Singh (Co-owner)
w/o Sh Shivraj Singh
r/o QTR no. 124/4,
Shekhawati Line
CS No. 425466/16 Page no. 1 of 15
Delhi Cantt, New Delhi.
6. Smt. Neelam Rani
w/o Sh Anish Kumar Rana
r/o Flat no. (First Floor Pvt. No. 103)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi.
7. Sh Navneet Kathait
s/o Sh Sohan Singh Kathait
w/o Pradeep Kumar
r/o Flat no. (Second Floor 201)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
8. Smt. Preeti Tiwari
w/o Arbind Tiwari
r/o Flat no. (Second Floor 202)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
9. Smt. Sangeeta Gupta
w/o Sh Kamlesh Prasad
r/o Flat no. (Second Floor 203)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
10. Smt. Priyanka Dubey
w/o Ravi Dubey
r/o Flat no. (Third Floor 301)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
11. Smt. Radhika Devi
w/o Binda Singh
r/o Flat no. (Third Floor 302)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
CS No. 425466/16 Page no. 2 of 15
12. Sh Hyat Singh Rawat
s/o Late Sh Hari Singh
r/o Flat no. (Third Floor 303)
RZ-123-B, Sadhnagar
Palam Colony, New Delhi
...... Plaintiffs
VERSUS
1. Sh Sumer Yadav
2. Sh Lalit Yadav
s/o Sh Sumer Yadav
Both r/o WZ-123, Sadhnagar
Palam Colony, New Delhi
3. Sh Vikas Jindal
s/o Sh Prem Chand Jindal
r/o H.No. 72/9, Onkar Nagar,
Trinagar, New Delhi.
4. SHO
Police Station, Palam Village,
New Delhi.
.....Defendants
Date of institution : 21.04.2015
Reserved for Judgment : 20.05.2025
Date of decision : 20.05.2025
JUDGMENT
Suit for Permanent and Mandatory Injunction CS No. 425466/16 Page no. 3 of 15
1. This is a suit for injunction filed by plaintiffs directing the defendant no. 1 and 2 thereby restraining the defendant no. 1 and 2, their associate, servant, agent, partners, associates, legal heirs, successors, assignees etc. from entering upon the parking area of plaintiffs i.e. the parking area built up on the ground floor of property measuring 215 sq. yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi as shown in red colour in the site plan and also to restrain defendant no. 1 and 2, their associate, servant, agent, partners, associates, legal heirs, successors, assignees etc. not to create obstruction while the plaintiffs construct wall on the ground floor in the parking area to demarcate the parking area between the plaintiffs and defendant no. 1 i.e. parking area in the property measuring 215 sq. yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi as shown in red colour in the site plan and also to direct the defendant no. 4/SHO PS Palam to provide necessary security to the plaintiffs for raising construction of wall in the parking area of plaintiffs in their area to separate the parking area of plaintiff and defendant no. 1 and 2 at the plot of plaintiffs i.e. measuring 215 sq. yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi as shown in red colour in the site plan and also to award the cost of suit in favour of plaintiff.
2. Plaintiff's Case The case of plaintiffs is that plaintiffs are the owner and in possession of flats built upon the property measuring 215 sq. yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh CS No. 425466/16 Page no. 4 of 15 Nagar, Palam Colony, New Delhi against the name of plaintiffs i.e. Smt. Santosh Kumari vide registered sale deed dated 28.07.2014, Smt. Lali vide registered sale deed dated 24.03.2015, Smt. Supriya Pal vide registered sale deed dated 07.04.2014, Smt Sunita Devi vide registered sale deed dated 29.08.2014, Indro Devi vide registered sale deed dated 29.08.2014, Neelam Rani vide registered sale deed dated 08.11.2013, Sh Navneet Kathait vide registered sale deed dated 20.03.2014, Smt. Preeti Tiwari vide registered sale deed dated 17.11.2014, Sangeeta Gupta vide registered sale deed dated 12.03.2014, Priyanka Dubey vide registered sale deed dated 30.06.2014, Radhika Devi vide registered sale deed dated 13.02.2015 and Hyat Singh Rawat vide registered sale deed dated 07.04.2014. The boundary of property on which the flats of plaintiffs are built are as follows:
East : 20 feet wide West : Gali 18 feet wide North: House of Sh G.L. Aggarwal South: House of defendant no. 1 and 2. (Site plan attached)
It is further averred that defendant no. 3 was owner of plot 215 sq. yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi who entered into collaboration agreement dated 10.06.2013 with builder namely Surender Singh and Jasbir Mann and thereafter the said flats were sold to plaintiffs. There are 12 flats in total alongwith parking area on the ground floor which belongs and owned by all the plaintiffs jointly and severally. The plaintiff no. 6 also purchased two rooms in the parking area. The defendant no. 1 CS No. 425466/16 Page no. 5 of 15 was having his own plot adjacent to the plot of plaintiffs and he constructed flats on his plot through builder and kept the parking area of both the plots opened from the centre without raising wall in between two plots. It is further averred that defendant no. 1 has also constructed 2 room set on the ground floor from the West side of his plot and thereby making his ground floor parking one sided open for his plot. Defendant no. 1 and 2 intentionally started blocking the parking area of plaintiffs by parking their vehicles and the vehicles of their tenants. Defendant no. 1 and 2 used to wake up late and make sarcastic remarks against the ladies residents of the plaintiff and threatened the plaintiff whenever the plaintiffs asked them to mend their behaviour. The matter was reported to police. On 11.04.2015 the plaintiffs started constructing the wall over parking area at the side of plot of defendant no.1 and 2 at which defendant no. 1 and 2 threatened the plaintiff with dire consequences for which plaintiffs made written complaint dated 12.04.2015 vide DD no. 39B to PS Palam. The defendant no. 1 and 2 are not allowing the plaintiffs to enjoy their property and there is constant apprehension of being intimidated. It is further averred that cause of action arose in favour of plaintiff in month of January-February 2015 and thereafter when the defendants created nuisance and obstruction in the parking area of plaintiffs and also on 12.04.2015 when police complaint was made by plaintiffs. Hence, the present suit.
3. Defendants' Case
(i) Defendant no. 1 and 2 filed their WS and submitted that the suit property is governed by Delhi land Reform Act and civil court has no jurisdiction to entertain the present suit. It is further submitted that the suit CS No. 425466/16 Page no. 6 of 15 is bad for non joinder of necessary party as present suit is seeking relief of alteration of existing structure of the building/suit premises which is within the purview of MCD or DDA who has not been impleaded in the array of parties. MCD or DDA is the only authority which can grant permission for alteration or change in the existing site plan of the property so the suit is liable to be dismissed. It is further submitted that Mani Ram, Sumit Paul, Mr. Pradeep Kumar and M/s Bejwal Buildcons Pvt. Ltd., Mr Surender Singh representative of M/s Sejwal Properties and Mr. Jasbir Mann representative of M/s Mann Properties & Developers has not been impleaded as party to suit so the plaintiffs have no locus standi to file the present suit as they have not impleaded recorded owner/bhumidar of khasra no. 65/2/2, 3/1 and 3/2 as party to suit. It is further submitted that defendant no.1 purchased the part of suit property in the year 1992 and it was assured by the seller that suit property is having 20 feet wide entrance from East side and service lane of 8 feet wide in the West side but in the year 2005 the resident were shocked to know that the road in the east side is not the part of khasra no. 65/2/2, 3/1 and 3/2 and same is the property of Indian Railways. After negotiation the settlement agreement was executed and it was mutually decided by plaintiff no.1 and owner of plot no. 123B that entire consideration amount for passage has been paid by defendant no. 1, the passage through plot no. RZ 123B will be used by both of them and both plots will have common entry. In the year 2013 defendant no. 3 purchased the part of plot from the earlier owner and defendant no. 1 and defendant no. 3 entered into colloboration agreement with M/s Mann properties & Developers Pvt. Ltd. and M/s Sejwal Buildcom Pvt. Ltd. to develop the plots in multi storey apartments. The defendant no. 1 and other CS No. 425466/16 Page no. 7 of 15 four residents have no other passage to approach their houses other than the common passage from West Side of the plot.
(ii). Replication has been filed by the plaintiffs to the written statement of the defendant no. 1 and 2 wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
(iii) Defendant no. 3 filed their WS and denied the averments made in the plaint.
4. During course of proceedings an application was moved on behalf of plaintiffs to replace plaintiff no. 5 Smt Indro Devi in place of Sh Shyamjeet Singh and the said application was allowed vide order 15.05.2018 and amended memo of parties filed on behalf of plaintiff was taken on record.
5. After completion of pleadings, vide order dated 01.08.2016 the following issues were framed by my learned Predecessor for trial :
1. Whether the plaintiffs are entitled to construct a wall to separate parking area lying under the plaintiff's flat from parking area lying the flats of defendant no. 1 and 2? (OPP)
2. Whether the defendant no. 1 and 2 are entitled to use parking area lying under the plaintiff's flat to enter the parking area lying under the flats of defendant no. 1 and 2? OPD
3. Whether the suit of plaintiffs is bad for non joinder of parties i.e. SDMC as they want to construct the wall without prior permission of such authorties? OPD
4. Relief.
CS No. 425466/16 Page no. 8 of 15 6. Plaintiff's Evidence
Plaintiff examined five witnesses in support of their case:
(i). Smt Supriya Pal was examined as PW1, who in her affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. She relied upon document Mark PW-1/B which is copy of registered sale deed in favour of her and her husband.
(ii) Smt. Sangita Gupta was examined as PW-2, who in her affidavit in evidence Ex. PW-2/A has stated and reiterated on oath the contents of the affidavit. She relied upon document Ex. PW-2/B(OSR) which is copy of registered sale deed in her favour.
(iii) Sh Hyat Singh Rawat was examined as PW-4, who in his affidavit in evidence Ex. PW-4/A has stated and reiterated on oath the contents of the affidavit. He relied upon document Ex. PW-4/B(OSR) which is copy of registered sale deed. (No witness was examined as PW-3 as the said witness was inadvertently mentioned as PW-4)
(iv) Smt. Santosh Kumari was examined as PW-5, who in her affidavit in evidence Ex. PW-5/A has stated and reiterated on oath the contents of the affidavit. She relied upon document Ex. PW-5/1(OSR) which is copy of sale deed.
(v) Smt. Preeti Tiwari was examined as PW-6, who in her affidavit in evidence Ex. PW-6/A has stated and reiterated on oath the contents of the CS No. 425466/16 Page no. 9 of 15 affidavit. She relied upon document Ex. PW-6/1(OSR) which is copy of sale deed.
Thereafter, plaintiff evidence was closed on 03.05.2025.
7. Defendants' Evidence Defendants examined two witness in their favour
(i) Sh Sumer Singh Yadav was examined as DW-1, who in his affidavit in evidence Ex. DW-1/A has stated and reiterated on oath the contents of the affidavit.
(ii) Sh Hansraj was examined as DW-2, who in his affidavit in evidence Ex. DW-1/2 (wrongly mentioned as Ex. PW-1/A) has stated and reiterated on oath the contents of the affidavit. He relied upon Mark-A which is copy of settlement agreement executed in March 1996 (objected to mode of proof) and Mark-B which is copy of site plan (objected to mode of proof)
(iii) Defendant no. 3 was proceeded ex parte vide order dated 14.12.2016 by my Ld Predecessor of the court.
Defendant evidence was closed on 16.05.2025 and thereafter, the matter was listed for final arguments.
8. Final arguments have been heard. I have gone through the judicial record.
9. Now I shall give my issue-wise findings on the following issues:
CS No. 425466/16 Page no. 10 of 15
1. Whether the plaintiffs are entitled to construct a wall to separate parking area lying under the plaintiff's flat from parking area lying the flats of defendant no. 1 and 2? (OPP)
2. Whether the defendant no. 1 and 2 are entitled to use parking area lying under the plaintiff's flat to enter the parking area lying under the flats of defendant no. 1 and 2? OPD
3. Whether the suit of plaintiffs is bad for non joinder of parties i.e. SDMC as they want to construct the wall without prior permission of such authorties? OPD
(i) Issue no. (3)
3. Whether the suit of plaintiffs is bad for non joinder of parties i.e. SDMC as they want to construct the wall without prior permission of such authorties? OPD The onus to prove issue no. (3) was upon defendant. In order to discharge their onus the defendant got examined two witness in total. While filing the written statement the defendant has taken specific objection that SDMC/now MCD is necessary party to the suit as the plaintiff wants to raise construction of the wall in the parking area. It was specifically stated that the plaintiff want to make alteration in their existing structure so the permission from competent authority or MCD is required. The defendants got examined two witness in total. DW-1 Sh Sumer Singh got examined himself and proved his affidavit Ex. DW-1/1. Sh Hansraj got himself examined as DW-2 and proved his affidavit as Ex. DW-1/2 (wrongly mentioned as Ex. PW-1/A) but both the Dws not uttered even single word regarding their contention made in written statement for impleading MCD as necessary party. Since there is no deposition to this effect so it cannot be said that the defendant has discharged their onus to prove the issue no. (3) CS No. 425466/16 Page no. 11 of 15 but it is settled law of land that in order to raise any fresh construction or to make any alteration in existing structure the sanctioned construction plan or permission is required respectively from the MCD. The fact which is settled law need not to be proved by either party, so issue no. (3) is decided in favour of defendants that MCD is one of necessary party to suit for purpose of raising the construction or making the alteration in existing structure of the building.
(ii) Issue no. (1)
1. Whether the plaintiffs are entitled to construct a wall to separate parking area lying under the plaintiff's flat from parking area lying the flats of defendant no. 1 and 2? (OPP) The onus to prove issue no. (1) was upon plaintiffs. In order to discharge their onus the plaintiffs got examined five witness in total (the last witness examined was PW-6 but no PW-3 has been examined so there are 5 witness in total). Perusal of record shows that defendants have taken specific objection that the plaintiff has not impleaded MCD as one of necessary party to the suit. The prayer clause specifically mention that the plaintiffs want to raise/construct a wall to separate parking area lying under the plaintiff's flat from parking area lying under the flats of defendant no. 1 and 2 but during the entire course of evidence the plaintiffs not brought on record any sanctioned construction plan approved by competent authority/MCD for the suit property. The plaintiffs also not proved or brought on record or summoned any permission granted by the competent authority/MCD to raise/construct a wall to separate parking area lying under the plaintiff's flat from parking area lying under the flats of CS No. 425466/16 Page no. 12 of 15 defendant no. 1 and 2. In absence of any such sanctioned construction plan or permission to raise/construct such wall, the plaintiff has failed to discharge their onus to prove the issue no. (i). Hence, the issue no. (1) is decided against the plaintiffs. It is clarified by the court that the court do not support to any unauthorized construction raised in the parking area in contravention to Unified Building Bye Laws of MCD so any competent authority or MCD is always at liberty to take any legal action against the bacha flat or any sort of unauthorized construction raised by plaintiffs in the parking area as averred in para no. (7) of the plaint i.e. the two rooms in the parking area owned by plaintiff no. 6 herein as on date.
(iii) Issue no. (2)
2. Whether the defendant no. 1 and 2 are entitled to use parking area lying under the plaintiff's flat to enter the parking area lying under the flats of defendant no. 1 and 2? OPD The onus to prove issue no. (2) was upon defendant. In order to discharge their onus the defendant got examined two witness in total. The plaintiff has specifically proved that they are having their houses over the plot measuring 215 sq. Yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi whereas the property of defendants is different to that of plaintiffs whereas the defendants are residents of plot no. WZ-123. The defendant has failed to bring on record that they are having any common passage from the property of plaintiffs or any kind of coventant attached to property of plaintiff in favour of defendants. The property of defendant is having the two side face open similarly to that of property of plaintiff i.e. from northern side and southern side.The property of plaintiff has no concern CS No. 425466/16 Page no. 13 of 15 with property of defendants. It is settled law that if there is parking at ground level and there are floors above the parking area then the owners of above floors have proportionate right in the parking area as per Unified building bye laws of MCD. Hence, the occupants of the floors in property i.e. houses over the plot measuring 215 sq. Yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi owned by plaintiffs have proportionate rights in the parking area and defendant has no right to use or to claim any right of passage in the parking area of the plaintiffs i.e. plot measuring 215 sq. Yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi. In view of above observation, the defendant has failed to discharge his onus to prove issue no. (2). Hence, the issue no. (2) is decided against the defendant. Accordingly, the defendant no. 1 and 2 are permanently restrained from entering upon the parking area of plaintiffs i.e. plot measuring 215 sq. Yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi as prayed for in prayer clause (i) by way of decree for permanent injunction.
10. Relief The suit of plaintiff is decreed to the extent that the defendant no. 1 and 2 are permanently restrained from entering upon the parking area of plaintiffs i.e. plot measuring 215 sq. Yards forming part of khasra no. 65/2/2, 3/1 and 3/2 situated in Abadi known as Sadh Nagar, Palam Colony, New Delhi as prayed for in prayer clause (i) by way of decree for permanent injunction.
CS No. 425466/16 Page no. 14 of 15 Cost of the suit is awarded in favour of plaintiff.
Decree sheet be prepared.
File be consigned to the record room after due compliance.
Digitally signed AJAY by AJAY KUMAR
KUMAR MALIK
Date: 2025.05.20
MALIK 18:13:06 +0530
Announced in the Open Court
on 20.05.2025 (Ajay Kumar Malik)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS No. 425466/16 Page no. 15 of 15