Delhi District Court
Sh. Subhash Malik vs Suit No. 130/2010 Page No. 1 Of 23 on 28 April, 2018
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
DISTRICT JUDGE8 (CENTRAL), TIS HAZARI, DELHI
Suit No. 130/2016 (New No. 614307/2016)
Unique ID No.: DLCT010003262006
In the matter of:
1.Sh. Subhash Malik, S/o Sh. Lajpat Rai Malik, M50, Greater KailashI, New Delhi110048.
2. Sh. Harish Malik, S/o Sh. Lajpat Rai Malik, C65, Greater Kailash, New Delhi110048.
3. Smt. Saroj Kathooria, W/o Sh. S.L. Kathooria, C/o Sh. Lajpat Rai Malik, C65, Greater Kailash, New Delhi110048.
4. Sh. Yogesh Malik, S/o Sh. Subhash Malik, C65, Greater Kailash, New Delhi110048. ......Plaintiffs VERSUS Suit No. 130/2010 Page no. 1 of 23 Sh. Rajeev Goel, C/o Mascot Studio, M50, Mezzanine Floor, Greater KailashI, New Delhi110048. .....Defendant Date of institution : 06.11.2006.
Date of Reserving judgment : 19.4.2018.
Date of pronouncement : 28.4.2018.
For plaintiffs : Ms. Geeta Dhingra, Advocate.
For defendant : Mr. Rajesh Srivastava,
Advocate.
JUDGMENT :
This is a suit for recovery of possession, mandatory injunction and damages/mesne profits for unauthorized use and occupation instituted by the plaintiffs against the defendant in respect of the property, namely the rear of the mezzanine portion of the property bearing municipal number M50, Greater Kailash PartI, New Delhi110048 (hereinafter referred to as "the suit property") shown in red colour in the site plan attached with the plaint; for directing the defendant to remove the illegal and unauthorized structure, iron sheds, iron shutter, plastic sheets etc. from the suit property; for directing the defendant to remove the illegal and unauthorized blockage from the common passage and staircases and also from the other common facilities by removing the showcase windows, advertisements, boards, billboards, hangings etc. and also to Suit No. 130/2010 Page no. 2 of 23 remove the blockage from the front ground floor veranda of the property bearing municipal number M50, Greater Kailash PartI, New Delhi110048 by removing the table (s), showcase windows and the business etc. and also the removal of high volume speakers etc. billboard etc. from and in front of the property no. M50, Greater Kailash PartI, New Delhi110048; for passing a decree of damages/mesne profits against the defendant for a sum of Rs.35,000/ as stated in the suit with effect from the filing of the suit till the possession of the property is handed over to the plaintiffs and the defendant removes the illegal and unauthorized structures and constructions from the property, obstructions and also the billboard etc. with interest thereon at the rate of 24% per annum.
2. Facts, as per the plaintiff's version, are that the property bearing municipality no. M50, Greater Kailash, New Delhi110048, measuring 196 square yards was originally owned by Smt. Shakuntala Malik, wife of Sh. Lajpat Rai Malik, who died on 04.6.2005, leaving behind the plaintiffs as her legal heirs and successors, who have succeeded the said property by virtue of a registered Will dated 20.11.2001; that during her lifetime, on 18.12.1998, the said Smt. Shakuntala Malik sold and transferred the mezzanine floor of the said property, shown in blue colour in the site plan attached with the plaint to the defendant; that since 1999 the defendant has been running a photo studio in the name and style of Mascot Studio being its sole proprietor; that the defendant, after purchasing the above mentioned Suit No. 130/2010 Page no. 3 of 23 mezzanine floor made certain illegal and unauthorized changes and construction in the said floor; that the defendant without the permission of Smt. Shakuntala Devi and the authorities concerned, removed internal load bearing pillars and walls, removed the kitchen and bathroom, and also removed the back wall of his portion and extended the portion to the extent of rear balcony (chajja) to the extent of about two foot approximately by converting the floor into a big hall merging the chajja as well; that in the year 2002, the defendant filed a false and fabricated suit for permanent injunction, bearing no. 6/2002 entitled Rajeev Goel v. Smt. Shakuntala Malik before the Hon'ble High Court of Delhi falsely and maliciously alleging that the defendant therein, that is Smt. Shakuntala Malik had been attempting to start construction in the rear balcony belonging to the plaintiff, that is the defendant in the present suit and thereby sought permanent injunction against Smt. Shakuntala Malik against raising construction in the rear balcony; that in the said suit the defendant herein amongst other documents also filed nine photographs in which it was shown that an iron shutter having been laid out; that in the said suit bearing no. 6/2002 Smt. Shakuntala Malik filed her written statement stating that the portion situated behind the mezzanine floor was never sold to the defendant herein, that is the plaintiff in the said suit; that in the written statement filed in the said suit by Smt. Shakuntala Malik it was further stated that it was Rajeev Goel, the defendant herein, who was attempting to lay down a roof over the open rear lawn/courtyard on Suit No. 130/2010 Page no. 4 of 23 the ground floor belonging to her so as to enable him to use the roof; that in the said suit bearing no. 6/2002 Smt. Shakuntala Malik also filed an IA No. 2875/2002 under Order XXXIX rules 1 and 2 read with section 151 of CPC (the Code of Civil Procedure, 1908) alongwith photographs and a copy of site plan showing the status prevailing at that time; that the said IA was duly replied by Rajeev Goel, that is the defendant herein; that in the said IA No. 2875/2002 Smt. Shakuntala Malik submitted that after purchase of mezzanine floor from her, Rajeev Goel, without permission and consent of her and the authorities concerned had made certain illegal and unauthorized construction on the said mezzanine floor; that in the said IA No. 2875/2002 Smt. Shakuntala Malik further stated that Rajeev Goel approached her and expressed his desire to lay down a roof over the open rear lawn/courtyard on the ground floor belonging to her so as to enable him to use such roof, but she did not agree to the said illegal acts of Rajeev Goel and informed him that he had no right to carry out any such construction in the rear lawn/courtyard as the said construction was illegal and unauthorized; that in the said IA No. 2875/2002 it was further stated that Rajeev Goel without permission of the authorities concerned and consent of Smt. Shakuntala Malik started putting the roof on the open rear lawn/courtyard belonging to her and she protested to such an illegal act of Sh. Rajeev Goel and got the same demolished; that in the said IA No. 2875/2002 it was further stated that thereafter, Sh. Rajeev Goel, without the consent of Smt. Suit No. 130/2010 Page no. 5 of 23 Shakuntala Malik, put an iron net in the rear lawn affixed on the compound wall of the rear lawn, and the said act of Sh. Rajeev Goel was also protested by Smt. Shakuntala Malik, but he continued with his illegal activities and unauthorized construction in violation of the building byelaws; that in the said IA No. 2875/2002 Smt. Shakuntala Malik further stated that the said construction had been raised by Sh. Rajeev Goel with mala fide intention to convert the same into a permanent construction; that in the said suit no. 6/2002, Sh. Rajeev Goel also filed his reply to the IA no. 2875/2002 wrongly, falsely and illegally alleging therein that the rear balcony at the suit property had access only through the mezzanine floor owned by him and there was no other access to the said rear portion/balcony of the suit property; that in reply to the IA no. 2875/2002 Sh. Rajeev Goel further stated that he had installed the iron grill at the rear of the mezzanine floor for security reasons. It is further averred in the plaint filed in the present suit that in the said suit no. 6/2002 the Hon'ble High Court of Delhi by order dated 09.7.2002 appointed a local commissioner, namely, Mr. P. P. S. Premi, Advocate to inspect the premises and to report with regard to the existing construction, and also whether any fresh construction was in progress or not; that it was further ordered by the Hon'ble High Court that the local commissioner may also get photographs of the disputed new construction; that on 09.7.2002, in compliance of the order of the Hon'ble High Court local commissioner Sh. P. P. S. Premi visited the premises and after inspection filed his Suit No. 130/2010 Page no. 6 of 23 report dated 10.7.2002; that from the report of the local commissioner it had emerged that the rear veranda/courtyard at the ground floor had been covered with iron rods/grills and the same was lying in complete darkness because of the iron rods, that the said veranda had been covered with iron shutter, which was also so depicted and was visible from the photographs filed on the record of the said suit no. 6/2002; that in the said suit no. 6/2002, upon consideration of the IA no. 2875/2002, the Hon'ble High Court of Delhi by its order dated 19.3.2002 was also pleased to restrain Sh. Rajeev Goel from raising any construction in the rear lawn of property bearing no. M50 till further orders. It is further averred in the plaint filed in the present suit that Sh. Rajeev Goel, that is the defendant herein, after receipt of the injunction order dated 19.3.2002 passed in the said suit no. 6/2002, in willful disobedience of the said order, carried out construction over the rear lawn belonging to Smt. Shakuntala Malik, by affixing iron rods over it and giving it a shape of an iron cage; that Sh. Rajeev Goel further affixed plastic sheets over the said iron cage and started using the same as a room for his business purpose; that Sh. Rajeev Goel also covered the lower portion of the said iron cage with a thick canvas and thereby illegally and unlawfully trespassed on to the portion of Smt. Shakuntala Malik at the rear side of the mezzanine floor by laying down an iron shutter and by further creating a room by affixing iron shutter from all sides and by starting using it as a shop, therefore, Smt. Shakuntala Malik was forced to file an IA no. 4777/2002 in the suit Suit No. 130/2010 Page no. 7 of 23 no. 6/2002 under Order XXXIX rule 2A read with section 94 and 151 of CPC and section 12 of the Contempt of Courts Act, 1971, which was also supported with an affidavit and the freshly taken photographs showing the contradiction with the previous photographs appearing on the record as stated above; that Sh. Rajeev Goel also filed his reply to the said application; that thereafter, the defendant merged his mezzanine floor portion with the rear lawn/open courtyard which he had trespassed into as stated above. It is further averred in the plaint filed in the present suit that during the year 2002 approximately the defendant with mala fide intention, without consent of the original owner Smt. Shakuntala Malik also blocked the common passage and staircase and other common facilities by putting a showcase window, advertisements, boards, billboards, hangings etc.; that the defendant has also illegally and unauthorizedly blocked front ground floor veranda of the premises by laying a big table and installing a showcase window and has started doing the business of selling magazines, newspapers, cassettes, cell phones etc., although he has no right, title or interest in the veranda situated at the ground floor and also the staircase leading to the building meant to be used in common by the occupants; that the front veranda at the ground floor is a public path, being used and frequented by the general public; that the defendant has also installed high volume speakers in the ceiling of the front common passage, which run entire day and night, causing immense voice pollution in area; that in the year 2005, the defendant Suit No. 130/2010 Page no. 8 of 23 also installed/affixed a big billboard of size approximately 20' in height and approximately 10' in width on the front wall of the first floor, for which he has no right and/or title, whatsoever, and the defendant had refused to remove the same for which he is liable to pay damages/use and occupation charges at the rate of Rs. 20,000/ per month; that the construction and usage of the property by the defendant is illegal, unauthorized and against the wishes and acceptance of the plaintiffs as well as against the wishes and acceptance of the previous owner Smt. Shakuntala Malik, therefore, the defendant is also liable to pay damages/mesne profits at the rate of Rs.15,000/ per month with effect from the filing of the suit; that the above stated blockages etc. are also causing immense hardship to the plaintiffs, other occupants of the building and also the general public at large, which the defendant has refused to remove; that the plaintiffs have repeatedly called upon the defendant to remove illegal and unauthorized construction, users and have repeatedly called upon the defendant to vacate the premises, remove the hindrances, blockages, bill board etc. but the defendant has refused to do the same; that the plaintiffs through their counsel Sh. Arvind Dhingra served a notice dated 09.9.2006, thereby calling upon the defendant to remove the construction and stop misuse, but the defendant failed to comply with the same leading upto the institution of the present suit.
3. The suit is contested by the defendant by way of a written statement of defense wherein preliminary objections are taken to the Suit No. 130/2010 Page no. 9 of 23 effect that the suit is not maintainable as the plaintiffs have no right, interest or title in the suit property; that the suit is bad for non joinder of necessary party as all the legal heirs of late Smt. Shakuntala Malik have not been impleaded in the present suit and the person carrying on activity in the veranda on the ground floor of the suit property has not been impleaded as party; that the suit deserves to be dismissed as the the plaintiffs have failed to produce the copy of the Will dated 20.11.2001 and they have not filed all the documents alongwith the plaint which are necessary to decide the present suit; that the suit is not maintainable in the present form as the same has not been verified in accordance with law by all the plaintiffs; that the present suit is not maintainable as the subject matter of the present suit is identical to the suit filed by the defendant against the original owner of the suit property; that the suit is liable to be stayed under of section 10 of CPC; that the plaintiffs have not properly valued the suit for the purposes of court fees; that the suit is without any cause of action; that the original owner, who was alive till date 4 th of June, 2005, did not file any suit for recovery of possession, therefore, after her death the present plaintiffs cannot file any suit; that after purchasing the property on 18.12.1998, to the knowledge of late Shakuntala Malik the defendant has been in continuous peaceful possession of one room, kitchen, bathroom and rear balcony; that in the written statement filed by late Smt. Shakuntala Malik she had never denied that the defendant is not the owner of the rear balcony situated in the suit property; that Suit No. 130/2010 Page no. 10 of 23 in the absence of any denial by the original owner that the defendant is not the owner of the rear balcony, no suit is maintainable and the plaint deserve to be rejected by this court; that the present suit has been filed by the plaintiffs as a counter blast to the suit filed by the defendant in respect of the suit property which is pending disposal before this court. In the reply on merits the averments made in the written statement by way of preliminary objections are reiterated and the contents of the plaint are traversed.
4. The plaintiffs filed a replication to the written statement of the defendant wherein defence taken by the defendant is traversed and the averments made in the plaint are reiterated. In the replication to the written statement it is reiterated that defendant is not the owner of the suit property.
5. On 22.8.2007, on the pleadings of the parties following issues were framed, namely:
(1) Whether the suit is bad for the nonjoinder of necessary parties? OPD (2) Whether the suit is not maintainable in the present form?
OPD (3) Whether the suit is bad for the purposes of not being valued properly for the purposes of court fees and jurisdiction? OPD (4) Whether the suit is bad for the lack of cause of action?
OPD Suit No. 130/2010 Page no. 11 of 23 (5) Whether the plaintiffs are not entitled to make claims in the present suit? OPD (6) Whether the plaintiff is entitled for the possession as prayed for ? OPP (7) Whether the plaintiff is entitled for the mandatory injunction, as prayed for ? OPP (8) Whether the plaintiff is entitled for damages/mesne profits? If so, at what rate and for which period? OPP (9) Whether the plaintiff is entitled for the interest? If so, at what rate and for which period? OPP (10) Relief.
6. In support of their claim, the plaintiffs got examined PW1 Yogesh Anand, who during his examination in chief tendered his affidavit Ex. PW1/A alongwith documents Ex.PW1/1 to Ex.PW1/12. PW1 Yogesh Anand was cross examined by counsel for the defendant and thereafter, evidence on behalf of the plaintiffs was closed.
7. In support of his defence, the defendant got examined himself as DW1 and during his examination in chief tendered his affidavit Ex. DW1/A alongwith document Ex. DW1/1. DW1 Rajiv Goel was cross examined by counsel for the plaintiffs and thereafter, defendant's evidence was closed.
8. I have heard counsel for the parties and have gone through the material on record carefully. I have also gone through the written arguments filed on behalf of the defendant. My issue wise Suit No. 130/2010 Page no. 12 of 23 findings are as follows:
Re: Issue No. 2.
9. Onus of proof qua this issue has been on the defendant. The plaintiffs have instituted the present suit for possession, mandatory injunction and mesne profits/damages. They claim that the defendant having raised unauthorized construction on their property has occupied the same by committing trespass. The plaintiffs also claim that the defendant has put unauthorized blockage in the common passage, staircases and other common facilities; and that he has put showcase windows, advertisements, boards, billboards, hangings etc.; and that he has put table (s) and showcase windows at the front ground floor veranda of the property; and that he plays music through high volume speakers etc., and he directed to stop such misuse etc. The plaintiffs, claiming to be the owners of the suit property have also claimed damages at the rate of Rs. 35,000/ per month in respect of such unauthorized construction, trespass etc. with interest. During the course of arguments no argument has been addressed on behalf of the defendant on this issue. In the considered opinion of the court since the plaintiffs claim themselves as the owners of the property upon which trespass has allegedly been committed by the defendant, therefore, the suit is in proper form. Hence, issue no. 2 is decided in favour of the plaintiffs and against the defendant. Re: Issue No. 3.
10. The onus of proof qua this issue has been on the Suit No. 130/2010 Page no. 13 of 23 defendant. No argument has been addressed on this issue and there is nothing on the record to suggest that for the purpose of jurisdiction and court fees the suit has not been properly valued by the plaintiffs. Hence, issue no. 3 is decided in favour of the plaintiffs and against the defendant.
Re: Issues No. 5, 6, 7 and 8.
11. These four issues are inter connected, therefore, are being discussed together. PW1 Yogesh Anand, the plaintiff no. 4 during his examination in chief deposed that the property bearing municipality no. M50, Greater Kailash PartI, New Delhi measuring 196 sq. yds. was originally owned by Smt. Shakuntala Malik, wife of Lajpat Rai Malik, who died on 04.6.2005. PW1 Yogesh Anand further deposed that during her life time, on 18.12.1998 Smt. Shakuntala Malik sold and transferred the mezzanine floor of the property to the defendant and the said mezzanine floor has been shown in blue colour in the site plan. PW1 Yogesh Anand further deposed that since 1999 the defendant has been running a photo studio in the name and style of Mascot Studio as its sole proprietor. PW1 Yogesh Anand further deposed that the defendant after purchasing the mezzanine floor made certain illegal and unauthorized changes and construction in the said floor, by first removing the internal load bearing pillars and walls, removed the kitchen and bathroom, and also removed the back wall of his portion and extended the portion to the extent of rear balcony (chhajja) to the extent of about 2 foot approximately, by converting Suit No. 130/2010 Page no. 14 of 23 into a big hall merging the chajja as well, without permission of Smt. Shakuntala Malik and also the authorities concerned. PW1 Yogesh Anand further deposed that during the period 2002 the defendant filed a false and fabricated suit for permanent injunction entitled Rajiv Goel v. Smt. Shakuntala Malik bearing suit no. 6/2002 before the Hon'ble High Court by making false and malicious allegations against the said Shakuntala Malik which was contested by her by filing written statement. PW1 Yogesh Anand further deposed that in the said suit bearing no. 6/2002 Smt. Shakuntala Malik also filed an I.A. No. 2875/2002 under Order XXXIX rules 1 and 2 read with section 151 of CPC alongwith a copy of the site plan and also the photographs showing the status prevailing at that time and the said I.A was replied by the defendant. PW1 Yogesh Anand further deposed that in the said I.A. Smt. Shakuntala Malik also stated that the defendant approached her and expressed his desire to lay down roof over the rear lawn/courtyard on the ground floor belonging to Smt. Shakuntala Malik so as to enable him to use the roof, but Smt. Shakuntala Malik did not agree to the said illegal acts of the defendant and informed him that he had no right to carry out any such construction in the rear lawn/courtyard as the said construction was illegal and unauthorized. PW1 Yogesh Anand further deposed that it was further stated in the said I.A. that the defendant without permission of authorities concerned and consent of Smt. Shakuntala Malik started putting roof on the open rear lawn/courtyard belonging to Shakuntala Malik and Suit No. 130/2010 Page no. 15 of 23 she protested to such an illegal act of Rajiv Goel and got the same demolished. PW1 Yogesh Anand during his examination in chief further deposed that thereafter, the defendant put an iron net in the rear lawn affixed on the compound wall of the rear lawn without the consent of Smt. Shakuntala Malik, which act of the defendant was also protested by Smt. Shakuntala Malik, but the defendant continued with his illegal activities and unauthorized construction which is against the building byelaws. PW1 Yogesh Anand during his examination in chief further deposed that in the reply filed to the said I.A. the defendant illegally alleged that the rear balcony at the suit property had access only through the mezzanine floor owned by the defendant and there was no other access to the said rear portion balcony of the suit property. PW1 Yogesh Anand during his examination in chief further deposed that in the said suit bearing no. 6/2002 the Hon'ble High Court by order dated 09.7.2002 appointed a local commissioner, namely, Mr. P. P. S. Premi, Advocate to have the inspection of the premises and to report with regard to the existing construction and also whether any fresh construction was in progress or not and in compliance of the orders of the Hon'ble High Court the local commissioner visited the premises on 09.7.2002 and filed his report dated 10.7.2002. PW1 Yogesh Anand during his examination in chief further deposed that from the report of the local commissioner a picture emerged in the said suit that rear veranda/courtyard at the ground floor had been covered with iron rods/grills and the same was Suit No. 130/2010 Page no. 16 of 23 lying in complete darkness because of these iron rods; that it was further emerged that the same veranda had been covered with iron shutter. PW1 Yogesh Anand during his examination in chief further deposed that the Hon'ble High Court by order dated 19.3.2002 restrained the defendant from raising any construction in the rear lawn of property bearing no. M50, Greater Kailash PartI, New Delhi 110048. PW1 Yogesh Anand during his examination in chief further deposed that the defendant in willful disobedience of the restraint order dated 19.3.2002, after receipt of the said injunction order, carried out construction over the rear lawn belonging to Smt. Shakuntala Malik by affixing iron rods over it and giving it a shape of an iron cage. PW1 Yogesh Anand during his examination in chief further deposed that the defendant further affixed plastic sheets over the said iron cage and started using the same as a room for his business purposes; that the defendant also covered the lower portion of the said iron cage with a thick canvas and thus, the defendant illegally and unlawfully trespassed in the portion of Smt. Shakuntala Malik at the rear side of the mezzanine floor by laying down an iron shutter and by further creating room by affixing iron shutter from all sides and by starting using it as a shop. PW1 Yogesh Anand during his examination in chief further deposed that the defendant thereafter, merged his mezzanine floor portion with the rear lawn/open courtyard which he had trespassed into. PW1 Yogesh Anand during his examination in chief further deposed that in the year 2005 the Suit No. 130/2010 Page no. 17 of 23 defendant also installed/affixed a big billboard of size approximately 20 feet in height and approximately 10 feet in width on the front wall of the first floor for which the defendant has no right or title and he refused to remove the same for which he is liable to pay damages/use and occupation charges to the extent of Rs.20,000/ per month as the said portion belongs to the plaintiff only. PW1 Yogesh Anand during his examination in chief further deposed that the defendant is also liable to pay mesne profits at the rate of Rs.15,000/ per month for usage of the property which is in illegal and unauthorized possession of him. PW1 Yogesh Anand during his examination in chief further deposed that by way of a notice the plaintiff called upon the defendant to remove illegal and unauthorized construction and to vacate the premises, to remove the hindrances, blockages, bill boards etc. but the defendant refused to do the same.
12. During his cross examination PW1 Yogesh Anand, who also claims himself as Yogesh Malik, deposed that her grand mother Smt. Shakuntala Malik, who died in June, 2005 left behind a registered Will and he has not filed the said registered Will in the present case. During his cross examination PW1 Yogesh Anand further deposed that on the basis of the Will he has not filed any probate case. During his cross examination PW1 Yogesh Anand denied that he is not the owner of the suit property. During his cross examination PW1 Yogesh Anand affirmed that his grand mother did not file any case during her life time against the defendant. During his Suit No. 130/2010 Page no. 18 of 23 cross examination PW1 Yogesh Anand further deposed that his grand mother Smt. Shakuntala Malik had four children, namely, Saroj Kathuria, Bala Kapil, S.C. Malik and Harish Malik, and her husband Lajpat Rai Malik is still alive. During his cross examination PW1 Yogesh Anand denied that Bala Kapil and Lajpat Rai Malik are co owners of the suit property. During his cross examination PW1 Yogesh Anand admitted that the plaint has not been signed by him; and further deposed that the plaint has only been signed by his father. During his cross examination PW1 Yogesh Anand further affirmed that he and other plaintiffs did not execute any power of attorney before filing the present suit. During his cross examination PW1 Yogesh Anand further deposed that he did not remember as to by what mode the legal notice was sent by the defendant. During his cross examination PW1 Yogesh Anand further deposed that part of the suit property was sold by her grand mother during her life time. During his cross examination PW1 Yogesh Anand further deposed that the photocopy of the letter dated 16.12.1998 bears signatures of his grand mother. During his cross examination PW1 Yogesh Anand affirmed that late Smt. Shakuntala Malik had allowed the defendant to put up small billboard nearby the pillar of the suit property. During his cross examination PW1 Yogesh Anand further deposed that he could not say whether the pillar is his property or not. During his cross examination PW1 Yogesh Anand further affirmed that half of the veranda upto the height of 11 feet has been sold to Sh. Gyan Chand Suit No. 130/2010 Page no. 19 of 23 Gupta, and further affirmed that possibly the same was sold before filing of the present suit. During his cross examination PW1 Yogesh Anand further deposed that two or two and a half foot chhajja adjoining the mezzanine floor was part of the sale deed of the defendant. During his cross examination PW1 Yogesh Anand further deposed that the rear balcony and the chhajja is one and the same thing and the dimensions are of two or two and a half foot. During his cross examination PW1 Yogesh Anand further deposed that as of now because the defendant has illegally changed the dimensions of the property, there is only one way to the chhajja/rear balcony. During his cross examination PW1 Yogesh Anand further deposed that the defendant is trying to illegally encroach upon the portion adjacent to the chhajja on which small roof on the half portion was put by him. During his cross examination PW1 Yogesh Anand further deposed that the same (roof) was being removed by them with a view to stop the defendant from encroaching upon any portion of the suit property. During his cross examination PW1 Yogesh Anand denied that the construction as on date was in existence at the time of the purchase of the property by the defendant. During his cross examination PW1 Yogesh Anand further deposed that site plans Ex. PW1/5 and Ex. PW1/6 were prepared by architect.
13. As per the testimony of PW Yogesh Anand, Smt. Shakuntala Malik was survived by her husband Lajpat Rai Malik and four children, namely, Saroj Kathuria, Bala Kapil, S.C. Malik and Suit No. 130/2010 Page no. 20 of 23 Harish Malik. Saroj Kathuria, S.C. Malik and Harish Malik are the plaintiffs no. 1 to 3 in the present suit, whereas Lajpat Rai Malik and Bala Kapil are not parties to the suit. In the plaint as well as in the affidavit Ex. PW1/A of PW Yogesh Anand it has been claimed by the plaintiffs, including Yogesh Anand, who is the son of S. C. Malik that they are the owners of the suit property on the basis of Will dated 20.11.2001 executed by late Shakuntala Malik, but neither the said Will has been produced before the court nor has been proved as per law, although to seek the relief of possession, mesne profits and injunction it was incumbent upon the plaintiffs to prove their ownership in the suit property. Even, in respect of the suit property and other part of the property no. M50, Greater Kailash PartI, New Delhi, the plaintiffs have not proved the ownership of Smt. Shakuntala Malik, through whom they claim to have derive their title in the suit property and other parts of the property no. M50, Greater Kailash PartI, New Delhi. In the absence of the proof of the ownership of the plaintiffs qua the suit property and other parts of the property no. M 50, Greater Kailash PartI, New Delhi this court is satisfied that the plaintiffs are not entitled to make claims in the present suit. The plaintiffs are not entitled to recover possession of the suit property, to seek mandatory injunctions in respect of other parts of the property no. M50, Greater Kailash PartI, New Delhi; and are not entitled to claim damages against the defendant. Hence, issues no. 5, 6, 7 and 8 are decided in favour of the defendant and against the plaintiffs.
Suit No. 130/2010 Page no. 21 of 23 Re: Issue No. 1.
14. From the testimony of PW1 Yogesh Anand it has been proved that half portion of the rear lawn/veranda, underneath the suit property as shown in site plan Ex. PW1/5, before institution of the present suit, was sold to Gyan Chand Gupa, thus, the said Gyan Chand Gupta, having interest in the suit property, is a necessary party to the present suit and and may be interested in the relief sought by the plaintiffs against the defendant. Since Gyan Chand Gupta has not been made party to the suit, therefore, the suit is bad for non joinder of necessary party. Hence, issue no. 1 is decided in favour of the defendant and against the plaintiffs.
Re: issue No. 4.
15. Since the plaintiffs have failed to show their title and interest in the suit property and other parts of the property no. M50, Greater Kailash PartI, New Delhi, therefore, this court is of the considered view that the suit is without any cause of action against the defendant. Hence, issue no. 4 is decided in favour of the defendant and against the plaintiffs.
Re: issue No. 9.
16. Since the claim of the plaintiffs for mesne profit/damages has not been accepted by this court, therefore, the plaintiffs are not entitled to any interest. Hence, issue no. 9 is decided in favour of the defendant and against the plaintiffs.
Suit No. 130/2010 Page no. 22 of 23 Relief.
In view of above discussion and my findings on the issues no. 1, 4, 5, 6, 7, 8 and 9 the plaintiffs are found entitled to no relief. The suit is dismissed with costs. Decree sheet be prepared accordingly. File be sent to records.
Pronounced in the open court (Manoj Kumar) on 28th of April, 2018. Additional District Judge8 Central:Tis Hazari Courts: Delhi.
MANOJ Digitally signed by
MANOJ KUMAR
KUMAR Date: 2018.05.01
16:35:21 +0530
Suit No. 130/2010 Page no. 23 of 23