Delhi District Court
Joginder Singh vs Sh. Baljeet (Since Deceased) on 31 March, 2015
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE -SENIOR
DIVISION CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 86/14
ID No. 02401C0935902003
Joginder Singh
S/o Sh. Attar Singh
R/o V & P.O. Bajitpur Thakran
Delhi. ............. plaintiff
vs.
1.Sh. Baljeet (since deceased) S/o Sh. Fateh Singh Through LRs
i) Smt. Bimla Widow of Baljeet
ii) Sh. Manish
iii) Sh. Ashish Both sons of late Baljeet All R/o Village & P.O. Bajitpur Thakaran, Delhi.
iv) Smt. Manisha W/o Sh. Shashi Kumar D/o late Sh. Baljeet Singh R/o Village Ranhola, Nangloi, Delhi.
2. Sh. Ajit S/o Sh. Fateh Singh
3. Sh. Mahender Singh (since deceased) S/o Balwant Singh Through LRs
i) Ashwani
ii) Rohit Suit No. 86/14 1/12 Joginder Singh v/s Baljeet Singh & ors.
Both sons of late Sh. Mahender Singh
All R/o Village & P.O. Bajitpur,
Thakran, Delhi. ............. defendants
Date of Institution of Suit : 04-07-1995
Date of reserve for judgment : 15-01-2015
Date of announcement of Judgment : 31-03-2015
SUIT FOR PERMANENT INJUNCTION
Judgment :
1. As per averments of the plaint, it is stated that the plaintiff is holding plot in his name in the Lal Dora of Village Bajitpur Thakran, Delhi - 39 and to this effect Lal Dora certificate was issued to the him on 29-01-1982 vide no. SDM/Kot/Kanjh/Lal Dora/82/12. That the plaintiff is in peaceful possession and user of the said plot and using the same as a Gher. That the defendants want to take forcibly a rasta from the plot by demolishing the boundary walls of the plot. It is averred that there is no rasta and the defendants have no right to demolish the boundary wall and to interfere in the peaceful possession of the plaintiff. That the plaintiff is being threatened by the defendants to give rasta from the plot to the defendants otherwise he will face dire consequences. That on 01-07-1995, the defendants tried to demolish the boundary walls and in this effort they demolished the door and one side boundary wall which was later on again constructed by the plaintiff and report was made to the police station Narela, Police Post Bawana, Delhi against some persons but after making the complaint it was revealed in the police post that abovesaid defendants in fact got the wall demolished. That the wall was again constructed by the plaintiff on 02-07-1995 and on 03-07-1995 the police came on the spot and asked the defendants not to demolish the wall and even left a constable there to safeguard against the demolition. That the plaintiff prayed for permanent injunction restraining the defendants from demolishing the boundary walls of the plot and from interfering in the peaceful possession of the plaintiff in respect of the plot situated at Village Bajitpur Thakran, Delhi - 39 in the Suit No. 86/14 2/12 Joginder Singh v/s Baljeet Singh & ors.
Lal Dora area of the Village as shown in red colour in the site plan.
2. Written statement filed on behalf of the defendants no. 1 to 3 and on behalf of defendant no. 3 wherein it is stated that the plaintiff has no locus-standi to file the present suit as he is not owner of the suit property and is not maintainable in the present form as no details of property or its boundaries have been furnished. That the plaintiff has no right, title or interest in the suit property. That there exists a common rasta and Ramlila Ground and plaintiff can not encroach the same. That there is no Gher and the plaintiff is trying to encroach the passage which is not permissible in the eyes of law. That the suit is not maintainable because of non- joinder of parties as UOI and Delhi Government have not made party to the suit as the suit property in question is Gar-Mumkin and vest in the Government of India and Delhi Administration. It is denied that the defendants have threatened the plaintiff and villagers asked to the plaintiff not to block the passage. That the allegations made by the plaintiff are denied by the defendants and prayed that the suit may be dismissed with special costs. The defendant no. 3 in his WS has averred that the plaintiff may be directed to demolish the wall etc. from the disputed land/ rasta and to restore the rasta.
3. Replication filed by the plaintiff to the WS of all the defendants wherein averments made in the plaint have been reiterated and reaffirmed and averments made in the WS have been denied as wrong.
4. The defendants were proceeded against Ex-parte vide order dated 27-10-1995. Issues were not framed in the present suit.
5. Plaintiff in order to prove his case, examined Sh. Charan Singh as PW-1, Sh. Satbir as PW-2, Sh. Jagbir, LDC office of SDO Narela, Delhi as PW-3 and examined himself as PW-4 in Ex-parte PE and Ex-parte PE was closed on 10- 09-1996.
Suit No. 86/14 3/12Joginder Singh v/s Baljeet Singh & ors.
6. Thereafter, defendants filed an application under Order 9 Rule 7 CPC which was allowed with the condition that defendants shall have no right to cross-examine plaintiff's witnesses vide order dated 04-02-1997 and the suit was adjourned for DE.
7. To prove their defence, defendants examined Sh. Bhoop Singh as DW-1, Sh. Kapoor Singh as DW-2 and Sh. Baljeet Singh-defendant no. 1 as DW-3 and they all were cross-examined on behalf of the plaintiff.
8. The suit of the plaintiff was dismissed vide judgment and decree dated 31-01-1998 and an appeal was preferred by the plaintiff against the said judgment and decree which was allowed vide order dated 11-11-2003 and the judgment and decree dated 31-01-1998 was set-aside and the case is remanded back to the Ld. Trial Court for deciding the case afresh after framing of issues and after framing of issues the ld. Trial Court can take additional evidence, if the parties so desire to adduce. It is also ordered that the evidence already recorded need not to recorded again.
9. Thereafter, in compliance of order of Appellate Court, following issues were framed vide order dated 10-10-2004 :
1. Whether the plaintiff has no locus-standi to file the present suit? OPD
2. Whether the suit is not maintainable on account of non-
furnishing of description of the suit property? OPD
3. Whether the suit is not maintainable for non-joinder of Union of India and Delhi Government, as necessary parties? OPD
4. Whether the plaintiff is owner of the suit property? OPP
5. Whether there exists no public way/ rasta through the suit property? OPP Suit No. 86/14 4/12 Joginder Singh v/s Baljeet Singh & ors.
6. Whether the plaintiff is attempting to encroach common way/ rasta and it is common land? OPD
7. Whether the plaintiff is entitled to relief of permanent injunction? OPP
8. Relief.
10. After framing of above issues in compliance of the direction given by the Appellate Court while deciding the appeal, cross-examination of PW-4-Joginder Singh on behalf of the defendants was recorded as additional evidence. Sh. Dalel Singh, Sh. Daryao Singh and Sh. Rambir were examined as additional evidence on behalf of the plaintiff and Sh. Dalel Singh and Sh. Rambir were cross-examined on behalf of the defendants. Vide statement of the ld. Counsel for the plaintiff it is stated that except the plaintiff the other witnesses namely, Charan Singh-PW-1 and Sh. Satbir-PW-2 who were examined in Ex-parte PE in this case and were to be cross-examined by the defendants are now dead and so can not be produced for cross-examination. No other witness has been examined on behalf of the plaintiff.
11. Sh. Ajit Singh, Sh. Dippan, Sh. Ishwar Singh, Sh. Attar Singh and Sh. Hukum Chand were examined and cross-examined on behalf of the plaintiff as additional evidence in compliance of the directions of the Appellate Court given in Appeal.
12. During pendency of the suit defendants no. 1 and 3 had expired and their LRs were brought on record.
13. I heard final arguments of ld. Counsel for the plaintiff, ld. Counsel for the defendant no. 2 and LRs of defendants no. 1 and 3.
14. I considered the submissions of the ld. Counsel for the plaintiff and Suit No. 86/14 5/12 Joginder Singh v/s Baljeet Singh & ors.
ld. Counsel for defendant no. 2 and LRs of defendants no. 1 and 3 and perused the entire record. My issue-wise findings are as under.
Findings on issue no.1 : Whether the plaintiff has no locus-standi to file the present suit? OPD
15. The onus of proving this issue was fixed upon the defendant. Ld. counsel for the defendant has not argued on this issue and has not submitted as to how the plaintiff has no locus-standi to file the present suit.
16. DW-3-Baljeet has not stated during his examination-in-chief that as to how and why the plaintiff has no locus-standi to file the present suit. DW-4-Ajeet Singh has stated in his affidavit that the suit property is actually common way/ passage but he has not stated as to how the plaintiff has no locus-standi to file the present suit.
17. On the other hand, the plaintiff has claimed that he is holding the plot in question in his name under Lal Dora of his village and since the defendants had broken the wall and door of the plot in question after construction of the said boundary wall and the defendants has also threatened to demolish the said boundary wall.
18. Considering the above facts proved on record and since the plaintiff has grievance against the defendants as alleged in the plaint, I am of the view that the defendants have failed to prove that the plaintiff has no locus-standi to file the present suit. This issue is decided accordingly.
Findings on issue no. 2 : Whether the suit is not maintainable on account of non-furnishing of description of the suit property? OPD
19. The onus of proving this issue was fixed upon the defendants. It is stated in the WS of the defendants that the suit is not maintainable as no details of the property or its boundaries have been furnished in the plaint which is mandatory Suit No. 86/14 6/12 Joginder Singh v/s Baljeet Singh & ors.
in law. Ld.counsel for defendants has referred Rule 3 of Order 7 CPC in support of his arguments.
20. It is submitted by the ld. counsel for the defendants that the suit is not maintainable as the description of the property has not been furnished in the plaint. On the other hand, ld. counsel for the plaintiff submits that the site plan showing measurements, location and boundaries of the suit plot was filed with the plaint which has been duly proved and the suit plot has been sufficiently identified. It is further submitted that no cross-examination has been conducted on behalf of the defendants about the correctness of the site plan. It is further submitted that the defendants and other witnesses of the defendants admitted in their cross- examination that the site plan filed by the plaintiff is correct as per site. It is further submitted that the site plan is part and parcel of the plaint and therefore, the suit is maintainable.
21. I considered the submissions of Ld. counsel for defendants and Ld. counsel for plaintiff. Site plan Ex.PW-4/A has been referred in the plaint and the same is part and parcel of the plaint. In the site plan Ex.PW-4/A, the boundaries, measurements and location of the plot has been mentioned. Therefore, I am of the view that the suit plot has been sufficiently identifiable by site plan Ex.PW-4/A. Therefore, I agree with the submissions of Ld.counsel for plaintiff that the suit is maintainable and the requirement of Order 7 Rule 3 CPC has been fulfilled. This issue is decided against the defendants.
Findings on issue no. 3 : Whether the suit is not maintainable for non-joinder of Union of India and Delhi Government, as necessary parties? OPD
22. The onus of proving this issue was fixed upon the defendants. Ld. counsel for defendants has not argued as to how the suit is not maintainable or bad for non-joinder of Union of India and Delhi Government and how they are Suit No. 86/14 7/12 Joginder Singh v/s Baljeet Singh & ors.
necessary parties. The present suit is a suit for permanent injunction simplicitor and the grievance of the plaintiff was only against the defendants. Therefore, I am of the view that Union of India or Delhi Government are not necessary parties to the present suit. Hence, it is held that they were not required to join as parties to the suit and hence, the suit is maintainable. This issue is decided against the defendants.
Findings on issue no. 4 : Whether the plaintiff is owner of the suit property? OPP
23. The present suit is a suit for permanent injunction simplicitor and it is well settled law that the title of the suit property can not be decided in such like suits. It is the case of the plaintiff that the plaintiff is in peaceful possession of the plot in question and defendants be restrained from demolishing the boundary walls of the plot and should not also interfere in the peaceful possession of the plaintiff. Therefore, I am of the view that no finding can be given as to whether the plaintiff is the owner or not of the plot in question and as such no finding is given on this issue. This issue is decided accordingly.
Findings on issue no. 5 : Whether there exists no public way/ rasta through the suit property? OPP
24. It is submitted by ld. counsel for the plaintiff that there exists no public way/rasta through the suit property. He has taken me to the entire evidence of the parties in support of his arguments. On the other hand, ld. counsel for defendants submits that there exists public way/common rasta being used by the villagers through the suit property which the plaintiff wants to include in his plot.
25. I considered the submissions of counsel for the plaintiff and counsel for the defendants and evidence on record. Lal Dora Certificate Ex. PW-3/A has been proved by PW-3 Jagbir Singh which was issued by SDM Kotwali in the name of Joginder Singh. As per Lal Dora Certificate Ex. PW-3/A, the plot of Har Lal is Suit No. 86/14 8/12 Joginder Singh v/s Baljeet Singh & ors.
situated on the west of the plot in question and house of Budh Ram and Ganga Sahai is situated on the East. The rasta has been mentioned on the north of the plot in question and in Ex. PW-3/A on the south, house of Chander has been mentioned. The genuineness and correctness of the Lal Dora Certificate Ex. PW- 3/A has not been challenged by the defendants in any court of law or in any proceedings before any public authorities and therefore, the genuineness and correctness of the same is accepted. In my view, had there been common way or rasta through the plot in question, it would have been shown in the Lal Dora Certificate Ex. PW-3/A.
26. DW-6 has stated during his cross-examination that there is no brick pavement over the passage in question. He has admitted during his cross- examination that in all other roads and passages of the village, there are either bricks or cemented pavements. PW-7 has also admitted this fact during his cross- examination. Therefore, I am of the view that had there been common way/rasta through the plot in question, it would have had bricks or cemented pavement as in the case of other common ways/rastas of the village.
27. DW-4-Ajit Singh has stated in his affidavit that "there is a piece of plot of the plaintiff in existence just adjacent of the said common way". DW-6 has also stated this fact in para no. 3 of his affidavit. During cross-examination DW-6 has stated that "Har Lal and Jug Lal were real brothers and plaintiff is grand-son of Jug Lal and house of Har Lal is adjacent to the disputed portion". DW-7-Attar Singh has stated during his cross-examination that "the portion towards west now containing house of Har Lal and the portion in dispute was one and same earlier and was lying vacant". It shows that the plot in question which was of Jug Lal and plot of Har Lal were divided from a big plot belonging to the father of Har Lal and Jug Lal, then how the question of common passage/ rasta arises adjacent to the house of Har Lal through the plot in question. DW-4 has stated during his cross-examination that "MCD had put up brick Suit No. 86/14 9/12 Joginder Singh v/s Baljeet Singh & ors.
pavement on the passages of Lal Dora". No evidence has been led on behalf of the defendants to prove that MCD had also put bricks on the alleged common passage/ rasta. Had there been common passage/ rasta through the plot as claimed by the defendants, MCD would have put bricks on this passage also. DW- 5 has stated during his cross-examination that "brick pavement was made by Pradhan-Baljeet". No evidence has been led in that regard to prove this fact.
28. DW-6-Ishwar Singh has admitted during his cross-examination that "I have not seen any document to show existence of the passage at disputed site". PW-7-Attar Singh has also admitted during his cross-examination that "I have never seen any record/ public document to show the existence of disputed portion as Rasta". Admittedly, no document has been filed on record to prove that the disputed portion is a common passage/ rasta. Even DW-6, DW-7 and DW-8 have not seen any document to show that the disputed portion was shown as Rasta. In my view, had the disputed portion been used as common passage/ rasta, that would have been shown in any of the public record. DW-2 has stated during his chief-examination that he requests to the Court to make rasta in dispute as common passage and this shows that the disputed passage is not a common passage/ rasta.
29. In the light of discussions and reasons therein, it has been proved that there exists no public way/ rasta through the suit property. This issue is decided in favour of the plaintiff and against the defendants.
Findings on issue no. 6 : Whether the plaintiff is attempting to encroach common way/ rasta and it is common land? OPD
30. In view of my findings on issue no. 5, it is held that the plaintiff is not attempting to encroach the common way/ rasta. This issue is decided against the defendants.
Suit No. 86/14 10/12Joginder Singh v/s Baljeet Singh & ors.
Findings on issue no. 7 : Whether the plaintiff is entitled to relief of permanent injunction? OPP
31. The plaintiff has prayed that the defendants be restrained by passing a decree of permanent injunction that they should not demolish the boundary walls of the plot and should also not interfere in peaceful possession of the plaintiff in respect of the plot situated in Village Bajitpur Thakran, Delhi -39 as shown in red colour in the attached site plan.
32. PW-4-Joginder Singh, plaintiff stated that "I lodged complaint in Police Station with regard to demolishing of boundary wall of my plot but I do not remember against whom the said complaint was lodged". It shows that some portion of the wall was demolished by the defendants. DW-6-Ishwar Singh has also stated in his affidavit that the wall which was raised by the plaintiff to block the common way was demolished on 20-08-1998 and the common way was opened as earlier in presence of the representative of then SDM and since then there is no wall in the common way. DW-4, DW-5, DW-7 and DW-8 have also stated this fact in their respective affidavits. Therefore, it has been proved that some portion of the wall was demolished for making the way through the plot of the plaintiff. Therefore, I am of the view that the relief to the effect that the defendants be restrained to demolish the boundary wall of the plot had become infructuous. However, in view of my findings on issue nos. 1 to 6, it is held that the plaintiff is entitled the relief of permanent injunction to the effect that the defendants be restrained to interfere in peaceful possession of the plaintiff in respect of the plot situated in Village Bajitpur Thakran, Delhi -39. This issue is decided accordingly.
Relief
33. In view of my findings on all the issues as above, the suit of the plaintiff is decreed for permanent injunction to the effect that the defendants are restrained from interfering in peaceful possession of the plaintiff in respect of plot situated at Village Bajitpur Thakran, Delhi -39 and they are Suit No. 86/14 11/12 Joginder Singh v/s Baljeet Singh & ors.
also restrained to interfere in raising of the boundary wall by the plaintiff in respect of plot as shown in red colour in the site plan Ex. PW-4/A which was earlier demolished. Costs of the suit is also awarded. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced in the open court (CHANDRA BOSE)
on the 31st day of March, 2015 Civil Judge-Senior Division
Central District, Delhi
Suit No. 86/14 12/12
Joginder Singh v/s Baljeet Singh & ors.