Delhi District Court
Smt. Anandi Devi vs Municipal Corporationof Delhi on 31 October, 2013
Anandi Devi v. MCD & Anr. S-188/11
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
CS No. 188/11
UNIQUE CASE ID NO. 02403C0995592008
IN THE MATTER OF:
SMT. ANANDI DEVI
W/O SH. HARI CHAND
R/O 13G, VILLAGE HUMAYUNPUR,
NEW DELHI. ....PLAINTIFF
VERSUS
1. MUNICIPAL CORPORATIONOF DELHI
THROUGH ITS COMMISSIONER
TOWN HALL, CHANDNI CHOWK,
DELHI110006.
2. SHRI GULSHAN SINGH
S/O SHRI NAZIR SINGH
R/O 13I, VILLAGE HUMAYUNPUR,
NEW DELHI. ....DEFENDANTS
DATE OF INSTITUTION : 03.12.2008
DATE OF RESERVING THE JUDGMENT : 21.10.2013
DATE OF DECISION : 31.10.2013
Result: Suit partly decreed Page 1 of 18
Anandi Devi v. MCD & Anr. S-188/11
JUDGMENT
1. The present suit for Permanent and Mandatory Injunction is primarily an off shoot of suit titled 'Gulshan Singh v. Hari Chand & Anr.' registered as suit No. 176/11 and pending in this Court wherein Sh. Gulshan Singh, second defendant herein, has sought Permanent Injunction against Sh. Hari Chand, husband of the plaintiff herein and against MCD for injuncting the defendants from making any unauthorized construction in suit property which remains common in both the suits. The suit has been filed pursuant to an alleged incident dated 29.09.2008.
2. Briefly stated, in this suit Smt. Anandi Devi claims to be residing at house No. 13G, Village Humayun Pur, New Delhi further claiming it as her house. The second defendant is said to be claiming ownership on neighbouring property i.e. house No. 13I, Village Humayun Pur, New Delhi. There is a common passage leading from road to the house of second defendant passing adjacent to plaintiff's house which, it is averred, the second defendant intends to grab. The said passage is in between the plaintiff's house and another house Result: Suit partly decreed Page 2 of 18 Anandi Devi v. MCD & Anr. S-188/11 belonging to Sh. Lalit. Another property of one Sh. Daulat Ram behind the plaintiff's house is also situated in the passage. It is claimed that plaintiff's house which is the suit property herein is very old and was having windows opening towards the said passage since the time of construction of the house.
3. Likewise, house of one Sh. Daulat Ram has windows opening towards the passage since long time. The suit premises is said to have been constructed more than 50 years ago. Since it was in dilapidated condition, the plaintiff carried out some repairs in the house which falls in the Lal Dora land. The repairs did not require permission from MCD. The second defendant, with intention to grab the suit premises, threatened the plaintiff to close her windows opening in the passage with a view to cover the passage and use it for her individual purposes. The plaintiff made several complaints to the local police as she refused to close the windows, being the source of air and light to her house. It is informed that second defendant filed a suit for Permanent Injunction impleading plaintiff's husband as a defendant. It is submitted that since second defendant could not get any relief in his suit therefore he adopted illegal tactics during the pendency of that suit as in the night Result: Suit partly decreed Page 3 of 18 Anandi Devi v. MCD & Anr. S-188/11 of 29.09.2008, he along with other persons fixed iron poles in the passage and fixed iron sheets thereby covering the windows and ventilators of the house of plaintiff and stopping supply of light and air to the suit premises. On objection, the plaintiff was threatened of dire consequences. It is informed that the second defendant has covered the passage by placing Tirons and slabs and made a permanent construction. It is submitted that the second defendant is in hand glove with the MCD. It is submitted that the plaintiff received a notice from MCD dated 18.11.2008 on 26.11.2008 to which she replied on 27.11.2008. It is submitted that officials of first defendant are threatening that they would demolish her house. It is submitted that the outside wall of the suit property situated next to the passage is requiring the replastering as the old plaster was removed by the plaintiff in order to save her old house from falling but the second defendant has stopped the plaintiff due to which the rain water will enter her house and cause damage to the house. The local police did not take any action. Hence, the present suit wherein the plaintiff prays for Permanent Injunction against the first defendant to restrain them not to carry out any demolition in the suit property or doing any illegal act on her premises in connivance with second defendant. Permanent Result: Suit partly decreed Page 4 of 18 Anandi Devi v. MCD & Anr. S-188/11 Injunction is also prayed against second defendant restraining him from stopping the plaintiff in getting the outer wall replastered. Mandatory Injunction is prayed against second defendant directing him to remove the iron pillars, rods and tins fixed in the passage whereby closing the windows and ventilators in the house of the plaintiff and also to remove Tirons and other construction carried out in the passage.
4. The first defendant/MCD, in its written statement pleads that plaintiff's suit is barred by provisions of Section 477/478 of DMC Act. It is further submitted that plaintiff's suit is not maintainable as the unauthorized construction raised in the suit property in the shape of ground floor to second floor made without permission from MCD has been booked vide file No. 209/UC/BSZI dated 21.10.2010 under Section 343/344 of DMC Act and in regard to which demolition orders have been passed. The demolition action programme were also fixed on 01.12.2004, 04.12.2008 and 05.12.2008 but action could not be taken due to shortage of time. It is further in the written statement that the unauthorized construction in premises bearing No. 13I, Humayun Pur Village, New Delhi in the shape of basement to fourth floor made Result: Suit partly decreed Page 5 of 18 Anandi Devi v. MCD & Anr. S-188/11 without permission from MCD has been booked vide file No. 243/UC/B/SZ/08 dated 11.12.2008 under Section 343/344 of DMC Act and demolition orders have been passed. It is submitted that further action shall be taken in due course. It is submitted that plaintiff cannot file the present suit as jurisdiction of this Court will be barred under Section 347E of DMC Act. It is further in the written statement that passage in question was inspected by the officials of first defendant on 04.02.2009 during which it was found that there is no encroachment on the government land as there is no gali/lane between premises 13G and 13I, Humayun Pur Village, New Delhi as per the lay out plan. The passage in question is thus said to be a private passage.
5. In replication, the plaintiff reiterates the contents of the plaint thereby denying the avernments made by the first defendant. The contents relating to booking of suit premises by the defendant No.1 in the action taken by them is said to be a matter of record. It is further submitted that the inspection of passage was done by the MCD improperly and was done as per the wish of the second defendant. Remaining avernments are denied.
6. The second defendant in his written statement claims that the Result: Suit partly decreed Page 6 of 18 Anandi Devi v. MCD & Anr. S-188/11 present suit is barred under Section 10 of Code of Civil Procedure in view of the other suit bearing No. 176/11 titled 'Gulshan Singh v. Hari Chand & Anr.'. It is further submitted that plaintiff is not the owner of the suit property and has therefore, no locus standi to file the suit. It is further in the written statement that the second defendant is the owner of premises bearing No. 13I, Village Humayun Pur, New Delhi including the passage adjacent to the house of the plaintiff and leading to the house of the second defendant. It is denied that he wants to grab the passage between the plaintiff's house and another house belonging to one Sh. Lalit. It is denied that house of Sh. Daulat Ram has any windows opening towards the said passage. It is submitted that the plaintiff has carried out construction in the suit property by breaking the wall and has also constructed the windows towards the passage in the first week of June, 2008. It is denied that the plaintiff's house is in Lal Dora Abadi. It is further in the written statement that second defendant has covered the passage on account of security reasons and the plaintiff has no right to object to it. It is further denied that any wall of plaintiff's house requires replastering as alleged.
7. In replication, the plaintiff reasserts the contents of the suit Result: Suit partly decreed Page 7 of 18 Anandi Devi v. MCD & Anr. S-188/11 plaint as correct and also denies all averments made by the second defendant in his written statement.
8. On 27.01.2010, the following issues were settled:
"1. Whether the suit of Plaintiff deserves to be stayed in terms of Section 10 of CPC as another suit containing similar subject matter against Defendant is pending where the issue is directly and substantially in issue in previously instituted suit? OPB.
2. Whether Plaintiff has not approached the court with clean hands as he himself has constructed unauthorizedly his house upto 2nd floor without requisite permission? OPD2.
3. Whether the Plaintiff is entitled to the relief of permanent injunction as prayed for in para 1 and 2 of prayer clause? OPP
4. Whether the Plaintiff is entitled to the relief of Mandatory Injunction as prayed? OPP.
5. Relief."
9. On the same date, defence of first defendant was struck off.
10. In support of her case, the plaintiff has examined her attorney Smt. Sudesh Kumari as PW1 and has filed her evidence by way of affidavit as Ex.PW1/A. She deposed on the lines of the suit plaint. Result: Suit partly decreed Page 8 of 18
Anandi Devi v. MCD & Anr. S-188/11 The SPA in her favour is Ex.PW1/B. The site plan is Ex.PW1/1. The complaints made to the local police are MarkC and MarkD respectively. Show cause notice dated 18.11.2008 issued to the plaintiff by first defendant is Ex.PW1/4. Reply to the said notice sent by plaintiff is MarkE. She relied on the certified copy of the plaint in civil suit No. 364/08 (renumbered as 176/11) as MarkA and the copy of the application under Order 39 Rules 1 and 2 read with Section 151 CPC filed with the said suit as MarkB. The certified copy of the written statement filed in the said suit is MarkF. During her cross examination, she also placed on record the report of concerned SDM in regard to nonissuance of Lal Dora certificate (Ex.PW1/X1). 10.1. The plaintiff also examined one Sh. Ashok (PW2), one Sh. Kailash Chander (PW4), one Sh. Mam Chand (PW5) and one Sh. Gangadhar (PW6). PW2 and PW4 are the neighbours of the plaintiff, who reside in same locality while PW5 Sh. Mam Chand and Sh. Gangadhar (PW6) are on visiting terms to the plaintiff's house. The said witnesses have placed on record their respective affidavits in PE submitting therein that the house of the plaintiff is very old and Result: Suit partly decreed Page 9 of 18 Anandi Devi v. MCD & Anr. S-188/11 there is a gali adjacent to her house which is a common passage. It is further deposed on oath that there are windows and ventilators in the house of the plaintiff towards the said passage. It is further submitted that another house in the passage also has windows opening towards that said passage since long. They deposed that the second defendant has illegally covered the said passage thereby stopping the flow of air and light to the plaintiff house. It is submitted that no construction has been carried out by the plaintiff in recent years and that in the year 2008, some mild repairs were carried out by the plaintiff. These witnesses were duly crossexamined.
10.2 The plaintiff has also examined her husband Sh. Hari Chand as PW3. His affidavit in evidence is Ex.PW3/A. All the witnesses were duly crossexamined. No further witnesses were examined by the plaintiff.
11. The second defendant has examined himself as D2/W1. He has deposed on the line of his written statement and has filed his own site plan Ex.D2W1/1. He was duly crossexamined.
11.1 The defendant also examined one Sh. Sanjeev Kumar/DW3, Sh. Result: Suit partly decreed Page 10 of 18
Anandi Devi v. MCD & Anr. S-188/11 Praveen Kumar/DW4, Sh. Surender Singh/DW5 and Sh. Pramod Kumar/DW6. All these witnesses are neighbours of the second defendant and have deposed that the plaintiff demolished her house in the month of June, 2008 and reconstructed three storeyed building on the suit plot. They have also deposed that there is no thorough fare from the property of the defendant No.2. The second defendant has also examined Sh. Khem Singh, Junior Engineer (Building), MCD, South Zone, Green Park, New Delhi as DW7. He deposed that this suit property has been booked for illegal construction. All these witnesses were duly crossexamined.
12. I have heard Sh. Arun Yadav, counsel for plaintiff; Sh. Rajiv Bhardwaj, counsel for defendant No.1 and Sh. Sunil Goyal and Ms. Shivani Goyal, counsels for defendant No.2.
13. My issuewise findings are as under:
Issue No.1: "Whether the suit of Plaintiff deserves to be stayed in terms of Section 10 of CPC as another suit containing similar subject matter against Defendant is pending where the issue is directly and substantially in issue in previously instituted suit? Result: Suit partly decreed Page 11 of 18
Anandi Devi v. MCD & Anr. S-188/11 OPB".
The onus of this issue is on the second defendant. No evidence has been led on the issue. The other case bearing No. S176/11 of which the certified copies have been filed on record of this suit is a suit filed by Sh. Gulshan Singh, the second defendant herein against Sh. Hari Chand, husband of Smt. Anandi Devi and MCD wherein he has sought Mandatory Injunction against the defendants in order to restrain them from making or permitting to be made any illegal construction in the suit property. Mandatory Injunction is also sought for directions to defendants for removal of the windows allegedly fixed on the wall touching with the main entrance to the house of the plaintiff therein.
In the present suit, the plaintiff has prayed for a decree of Permanent Injunction against the first defendant to restrain them from carrying out any demolition in suit property. A decree of Permanent Injunction is also prayed against second defendant restraining him from stopping the plaintiff in getting the outer wall of the house of the plaintiff replastered. Decree of Mandatory Injunction is prayed against second defendant for directions to him to remove the iron Result: Suit partly decreed Page 12 of 18 Anandi Devi v. MCD & Anr. S-188/11 pillars, rods, tins fixed in the passage thereby closing the windows and ventilators of the house of the plaintiff. Accordingly, the matter in issue in the present suit is directly and substantially not in issue in the previously instituted suit. Furthermore, the parties to both the suits are not the same. The issue is therefore decided against the defendant and in favour of the plaintiff.
Issue No.2: "Whether Plaintiff has not approached the court with clean hands as he himself has constructed unauthorizedly his house upto 2nd floor without requisite permission? OPD2".
The onus of proving this issue is also on the second defendant. From reading the aforesaid issue, it appears that the said issue has been based on the pleadings in the cross suit bearing No. 176/11 where the plaintiff Sh. Gulshan Singh (second defendant herein) has pleaded that he is the owner of the property bearing No. 13I, Village Humayun Pur, New Delhi. It is in respect of this property that the first defendant MCD has submitted a status report to the effect that the unauthorized construction in the suit property in the shape of basement of 4th floor has been booked under Section 343/344 of DMC Act from 11.12.2008. It is an admitted position that the suit premises Result: Suit partly decreed Page 13 of 18 Anandi Devi v. MCD & Anr. S-188/11 herein has been also booked for unauthorized construction by the first defendant. DW7 Sh. Khem Singh, JE has categorically stated that property No. 13I has been booked for illegal construction. It is said to be denoted by two numbers. It is further said that one of the number has been booked for illegal construction while the other is not. The said witness has admitted that property No. 13I is under the occupation of Sh. Gulshan Singh and there is a basement there.
The issue under consideration pertains to the plaintiff having purportedly approached the Court with unclean hands and it necessarily arises out of the pleadings in cross suit No. 176/11. In these circumstances, the issue under consideration is redundant for the purposes of the present suit. It does not require any finding. Issue No.3: "Whether the Plaintiff is entitled to the relief of permanent injunction as prayed for in para 1 and 2 of prayer clause? OPP".
The plaintiff has sought a decree of Permanent Injunction on two counts. Her first prayer has to be the subject matter of Appellate Tribunal, MCD being an appealable order before the Appellate Tribunal, MCD and therefore by virtue of Section 347E of DMC Act, Result: Suit partly decreed Page 14 of 18 Anandi Devi v. MCD & Anr. S-188/11 the said relief cannot be granted to the plaintiff herein.
So far as the second relief of Permanent Injunction is concerned, it is an admitted position that the plaintiff's property i.e. the suit property herein has been booked for unauthorized construction by the officials of first defendant who also undertook demolition programmes on as many as three occasions. The unauthorized construction in the suit premises is in the shape of ground floor to second floor. Without first challenging the demolition order or seeking composition of compoundable deviations if any, the plaintiff cannot ask for the relief of the nature she claims. It is the case of the first defendant that the properties in Village Humayun Pur are under its jurisdiction. The record of the Naib Tehsildar, Humayun Pur Mehrauli which is Ex.PW1/X1 reveals that it is categorically mentioned on it that due to urbanization of Village Humayun Pur, no Lal Dora certificate could be issued in regard to the suit premises. Thus, the stand taken by the parties that the SDMC has no role qua building activities in Village Humayun Pur does not sustain. It shall be on the plaintiff to seek permission from the officials of first defendant to carry out any further construction and for that matter repairs which Result: Suit partly decreed Page 15 of 18 Anandi Devi v. MCD & Anr. S-188/11 would include replastering of the outer wall of the suit premises. Thus, the equally efficacious relief available to the plaintiff is to challenge the demolition order before the concerned forum which she has failed in doing so. She is therefore not entitled for the injunction prayed for under Section 41 (h) of the Specific Relief Act, 1963.
Issue No.4: "Whether the Plaintiff is entitled to the relief of Mandatory Injunction as prayed? OPP".
So far as the prayer of Mandatory Injunction is concerned, the second defendant has submitted in his pleadings that he has covered the passage for security reasons but has not explained anywhere as to how and what security reasons prompted him to cover the gali. In his crossexamination, the second defendant has voluntarily deposed that he is in possession of the passage and the Jaal was installed by him for the purpose of security. In his own suit filed by the second defendant i.e. suit No. 176/11, this Court has held that Sh. Gulshan Singh has remained unable to substantiate his claim that the passage in question is a private passage that falls in his property or that he has right or title over the said passage. The witness has admitted that there is a property Result: Suit partly decreed Page 16 of 18 Anandi Devi v. MCD & Anr. S-188/11 at PointA (in site plan) behind the property of the plaintiff. He has also admitted that there is another house at PointB which is shown in the site plan. The house at PointB is adjacent to the house of the defendant. It is also in the site plan that the property shown at PointC belongs to some builder. It is therefore apparent that alongside the passage in question, other houses besides the house of second defendant are also located. It is also in the evidence that the residents of these houses are also using the passage in question. Thus, without proving that the second defendant is the owner of the passage in question, he cannot make encroachments in the common passage. The same tantamounts to hindrance to the usage of suit property by the plaintiff. From the evidence on record, it stands proved that plaintiffs right to use the suit property even if it has been constructed unauthorizedly cannot be threatened in the manner proven. Thus, the issue is decided in favour of the plaintiff and against the second defendant.
Issue No.5: "Relief".
In view of the discussion on issue No.4, the present suit is partly decreed for relief of Mandatory Injunction. The second defendant is Result: Suit partly decreed Page 17 of 18 Anandi Devi v. MCD & Anr. S-188/11 directed to remove the Jaal (as shown to be existing adjacent to the red line/window frame in site plan Ex.D2W1/1) which he has deliberately placed in the passage in question and remove the obstruction made by him in the passage in question.
14. The suit stands partly decreed. Parties are left to bear their own costs.
15. Decree sheet be prepared accordingly.
16. File be consigned to record room.
Announced in the open Court (Manish Yaduvanshi) on 31.10.2013. SCJCumRC (South)/Saket Courts New Delhi.
Result: Suit partly decreed Page 18 of 18