Delhi District Court
Shri Imran vs The Municipal Corporation Of Delhi on 4 April, 2011
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST)
Suit No. 260/08
Old Suit No. 271/07
Unique Case ID No. 02402C0329512007
Shri Imran
s/o Shri Iqbal
r/o House No. 4928, B50,
Old Seelampur, Delhi110031.
........... Plaintiffs.
VERSUS
1. The Municipal Corporation of Delhi,
through its Commissioner,
Town Hall, Chandni Chowk,
New Delhi.
2. Shri Mateen
s/o Shri Ummed @ Shri Munna
r/o C370, Gali no.18, Old Mustafabad,
Delhi110094.
......... Defendants.
Date of institution of the suit : 27.04.2007
Date on which order was reserved: 22.03.2011
Date of decision : 04.04.2011
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff purchased the property no. C370, gali no.18, Old Mustafabad Delhi94, out of khasra no. 355, measuring a total area of 82 sq. yards for a valuable consideration from one late Shri Umar Daraz by virtue of the GPA, Agreement to Sell, Affidavit, Receipt and Will, all dated 07.08.1997. It has been further stated that at the time of purchase of the said property, defendant no.2 was in possession of one room, one shop and gallery alongwith the latrine on the ground floor in the said property of an area measuring 41 sq. yards approximately duly shown in red colour in the site plan annexed with the plaint. It has been further stated that the plaintiff sold out half of the portion i.e. the area measuring 41 sq. yards to one Shri Irfan on 19.02.2004 and the rest of the portion i.e. in the area measuring 41 sq. yards, the defendant no.2 became the tenant under the plaintiff after purchasing of the same by the plaintiff. It has been further stated that Shri Umar Daraz had filed a suit for Declaration and Permanent Injunction against the plaintiff and the defendant no.2 but the same was withdrawn by the said Shri Umar Daraz due to technical defects and defendant no.2 was served in that suit and filed his written statement. It has been further stated that Shri Umar Daraz further filed a suit for Possession, Declaration and Permanent Injunction and the same was compromised by the plaintiff with Shri Umar Daraz and the defendant no.2 was also a party in that suit. It has been further stated that the said suit was disposed off on 19.04.2004 by the court of Shri Vijay Shankar, the then Ld. Civil Judge, KKD courts, Delhi. It has been alleged by the plaintiff that the defendant no.2 with the ulterior motives, demolished the tenanted portion in his possession on 16.04.2007 and on 17.04.2007 and started raising illegal and unauthorized construction. It has been further stated that the plaintiff reported the matter to P.S. Gokul Puri on 18.04.2007 but of no use. It has been alleged that the plaintiff also sent a legal notice u/s 80 of the CPC to the defendant no.1 but no action was taken by the defendant no.1 against the defendant no.2 because the officials of the defendant no.1 are in the collusion with the defendant no.2 and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff have prayed for a decree of permanent injunction restraining the defendant no.2 from raising illegal and unauthorized construction in the property in question shown in green colour in the site plan annexed with the plaint. The plaintiff has also prayed for a decree of Mandatory Injunction directing the defendant no.1 to demolish the illegal construction i.e. the boundary wall as shown in green colour in the site plan annexed with the plaint raised by the defendant no.2 on the property in question.
2. Written statement has been filed on record by the defendant no.1 stating therein that the present suit is bad for want of notice u/s 477/478 of the DMC Act; the plaintiff has not come to the court with clean hands; the suit is without any cause of action. It has been further stated by the defendant no.1 that the said property was inspected by the officials of the defendant no.1 and it was found that the property was situated in an unauthorized colony and the suit property was consisting of two small rooms at the ground floor with staircase and the same was old and occupied and no construction activity or any unauthorized construction was found to be in progress. It has been further stated that the owner / occupier of the suit property had raised the wall with pillars only. Rest of the contents of the plaint have been denied by the defendant no.1 and it has been prayed that the suit of the plaintiff be dismissed.
Written statement has also been filed on record by defendant no.2 taking various preliminary objections therein such as that the plaintiff has concealed the material facts from this court; the present suit has been filed by the plaintiff only with a view to harass, humiliate, and defame the defendant no.2; plaintiff has no right, title or interest in the suit property and the suit of the plaintiff is liable to be dismissed.
On merits, the defendant no.2 has taken the stand that Shri Umar Daraz has no right, title or interest in the suit property and as such, he had no right to sell the same to the plaintiff. It has been stated by the defendant no.2 that he is the son of his father namely Shri Umed @ Munna from his first wife Mst. Shamim Bano, to whom the father of defendant no.2 had divorced long ago and later on, he contacted second marriage with Mst. Famida who was the daughter of Shri Umar Daraz. It has been further stated that the property bearing no. C370, gali no.18, Old Mustafa Bad, Delhi, was purchased by the father of the defendant no.2 with the sale proceeds of the ancestral agricultural land situated at village Ghungrala, Tehsil Hapur, Distt. Ghaziabad, UP and with the income of the answering defendant as well. It has been further stated that the defendant no.2 asked his share from his father Shri Umed and on his refusal, he filed a suit for partition and rendition of accounts and the same was dismissed by the court of Shri Prithvi Raj, the then Ld. ADJ, Delhi. It has been further stated that on the intervention of the family members, in or around February 1997, the father of the defendant no.2 gave the suit property which is half of the property bearing no. C370, Gali no.18, Old Mustafa Bad Delhi to the defendant no.2 as his share in the property and thereafter, the defendant no.2 shifted in the suit property and residing therein. It has been further stated that later on, the father of the defendant no.2 also executed, GPA, Gift Deed, Will on 08.04.1997 in respect of the suit property in favour of the defendant no.2. It has been denied by the defendant no,.2 that the plaintiff has filed the correct site plan of the suit property. Rest of the contents of the plaint have been denied by the defendant no.1 and it has been prayed that the suit of the plaintiff be dismissed.
3. Replication has been filed on record by the plaintiff to the written statement of the defendant no.2 reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement. The plaintiff has stated in the replication that the documents relied upon by the defendant no.2 are forged and fabricated. However, corresponding para no.1 of the replication to the written statement of the defendant no.2, reveals that the plaintiff has not denied the second marriage of the plaintiff as alleged by the defendant no.2 but the plaintiff has denied that on the intervention of the family members, half of the share of the suit property was given to the defendant no.2.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 08.05.2009.
1) Whether the plaintiff is entitled for decree of Permanent and Mandatory injunctions as prayed in the suit ? OPP
2) Relief.
In order to prove their respective cases, the plaintiff has examined himself as PW1 and Shri Vijay Kumar Rawat, Record clerk from the office of the Sub Registrar has been examined as PW2. The defendant no.2 has examined himself as DW1/D2. No other witness has been examined by the parties to the present suit The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
5. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties.
6. My issuewise findings on the abovesaid issues are as under:
Issues No. 1.
The present suit is a suit for Permanent and Mandatory Injunctions only. Though there is a dispute with respect to the ownership of the suit property in between the plaintiff and the defendant no.2 but the plaintiff in the present suit has confined his relief only with respect to the alleged illegal and unauthorized construction raised by the defendant no.2 and as such, the judgment in the present suit shall also be confined to the limited aspect of the controversy limited to the extent of alleged illegal and unauthorized construction allegedly raised by the defendant no.2. The MCD which is the defendant no.1 in the present suit has filed on record the written statement stating therein that no illegal or unauthorized construction has been done by the defendant no.2 in the suit property as alleged by the plaintiff. The vital question to be considered by this court is as to whether the plaintiff has been able to prove the demolition of the earlier structure over the suit property by the defendant no.2 and thereafter, raising of the illegal and unauthorized construction as is his categorical stand in the plaint.
Now coming to the evidence, the plaintiff has filed on record his evidence by way of affidavit as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the GPA, Agreement to Sell, Affidavit, Receipt of payment and the Will as Ex. PW1/A to Ex. PW1/E, site plan as Ex. PW1/F, certified copy of the suit filed by Umar Daraz as Ex. PW1/G, copy of the suit for Possession, Declaration and Permanent Injunction dated 22.10.2001 as mark A, voter I card as Ex. PW1/H, legal notice dated 22.09.1999 as Ex.
PW1/I, reply of defendant no.2 as Ex. PW1/J, carbon copy of the notice as Ex. PW1/K, postal receipts as Ex. PW1/L and PW1/M, copy of the complaint dated 18.07.2007 as Ex. PW1/N, postal receipts collectively as Ex. PW1/O, site plan as Ex. PW1/P, site plan before the demolition of the suit property as Ex. PW1/Q, photographs of the suit property after demolition and raising certain construction as Ex. PW1/R to Ex. PW1/U respectively, cash memo from studio as Ex. PW1/V, negatives of the said photographs collectively as Ex. PW1/W. In the cross examination PW1 has stated that he does not remember the exact date and month but however, it was the incident of demolition of the suit property before 2½ years. PW1 further states that he had reported to the police when the defendant no.2 had demolished the suit property. PW1 has admitted it to be correct that no action was taken by the police against the defendant no.2 regarding the said unauthorized demolition. PW1 has denied the suggestion that defendant no.2 has not made any unauthorized or illegal construction in the suit property.
The next witness examined by the plaintiff is Shri Vijay Kumar Rawat, Record Clerk from the office of the Sub Registrar IV, who has deposed regarding the registration of the GPA as Ex. PW1/A and the Deed of Will as Ex. PW1/E. Defendant no.2 has examined himself as DW1/D2 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendant no.2 in his written statement. He has filed on record the GPA in original dated 08.04.1997 as Ex. DW1/1, the Gift Deed dated 08.04.97 as Ex. DW1/2, the Will dated 08.04.97 as Ex. DW1/3.
In the cross examination DW1/D2 has denied the suggestion that on 16/17.04.2007, he carried out the demolition in the suit property.
It has to be seen that he MCD i.e. the defendant no.1 has clearly stated in the written statement that only a wall was found to be constructed over the suit property and the same was old and occupied. From the perusal of the photographs filed on record by the plaintiff, it is visible that only a boundary wall is there. Plaintiff has filed on record the two site plans one as Ex. PW1/Q and the other as Ex. PW1/P. In the site plan Ex. PW1/Q, one room and one shop has been shown whereas, in the site plan Ed. PW1/P no such partition has been shown. As per the allegations, as contained in the plaint (para no. 2 of the plaint), the plaintiff has asserted that the defendant no.2 was in possession of one room, one shop and a gallery alongwith latrine on the ground floor. In the site plan Ex. PW1/Q, the room, the shop, the latrine and the gallery have been shown. The said site plan is stated by the plaintiff to be of the time when the construction was not demolished by the defendant no.2. The settled law is that if the defendant disputes the site plan filed by the plaintiff then the defendant is bound to file a site plan of his own, in the absence of which, the site plan filed by the plaintiff has to be taken as correct. In the case in hand, defendant no.2 stated that the site plan filed by the plaintiff is not correct as per the site but no site plan of his own has been filed on record by defendant no.2. It has to be further seen that the MCD i.e. the defendant no.2 has also not examined any witness in order to substantiate the stand as taken by the defendant no.1 in its written statement. As such, I am of the opinion that the plaintiff has been able to prove issue no. 1 in his favour and accordingly issue no.1 is decided in favour of the plaintiff and against the defendants.
Relief.
In the light of my findings upon the issue no.1, I hereby pass a decree of Permanent injunction restraining the defendant no.2 from raising any illegal and unauthorized construction in the property in question as shown in green colour in the site plan annexed with the plaint. I also hereby pass a decree of Mandatory Injunction directing the defendant no.1 to demolish the boundary wall as shown in green colour in the site plan annexed with the plaint i.e. in the site plan Ex. PW1/P. Cost of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 04th day of April, 2011. JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.